Current through Register Vol. 46, No. 19, March 20, 2024
(1) A
brokerage which has a company policy that permits disclosed dual agency for
in-house transactions shall provide a disclosed dual agency consent agreement
to the client or prospective client prior to engaging in any activities of a
dual agent. If any seller, landlord, buyer, or tenant rejects dual agency, or
refuses to sign consent to dual agency, the licensee shall not act as a dual
agent. The dual agency consent agreement shall comply with Iowa law and
commission rules including, but not limited to, the requirement to inform the
prospective clients that they are not required to consent to dual agency
representation as provided by 12.5(2).
a. A
licensee may act as a dual agent only with the informed consent of all parties
to the transaction. The informed consent shall be evidenced by a written
agreement pursuant to Iowa law and commission rules.
b. A dual agent shall be an agent for both
the seller and buyer or the landlord and tenant and shall have the duties and
obligations required for a single agent representing a seller or landlord and
for a single agent representing a buyer or tenant, unless otherwise provided
for in this rule.
c. A dual agent
shall disclose to the client all material adverse facts concerning the property
that are actually known by the licensee, pursuant to Iowa Code section
543B.56.
d. A dual agent shall not disclose to one
client confidential information about the other client and shall preserve a
seller's or a landlord's, or a buyer's or a tenant's, confidential information
as defined in rule
193E-2.1 (543B),
imless disclosure is required by law, or failure to disclose such information
would constitute fraud or dishonest dealing, or disclosure is authorized by
express instruction. A dual agent does not terminate the dual agency
relationship by making the disclosures required or permitted by the dual agency
consent agreement. Confidential information shall include, but not be limited
to, the following:
(1) Information concerning
a seller or landlord that if disclosed to the buyer or tenant could place that
seller or landlord at a disadvantage when bargaining;
(2) Information concerning a buyer or tenant
that if disclosed to the seller or landlord could place that buyer or tenant at
a disadvantage when bargaining;
(3)
That the seller or landlord is willing to accept less than the asking price or
rent or lease price for the property;
(4) That the buyer or tenant is willing to
pay more than the asking price or rent or lease price for the
property;
(5) What the motivating
factors are for client's selling, renting, or leasing the property;
(6) What the motivating factors are for the
client's buying, renting, or leasing the property;
(7) That the seller or landlord will agree to
sale, rent, lease, or financing terms other than those offered;
(8) That the buyer or tenant will agree to
sale, rent, lease, or financing terms other than those offered;
(9) The seller's or landlord's real estate
needs;
(10) The buyer's or tenant's
real estate needs;
(11) The
seller's or landlord's financial information;
(12) The buyer's or tenant's financial
qualifications.
e. In
any transaction, a licensee may withdraw from representing a client who has not
consented to a disclosed dual agency at any time prior to the existence of the
dual agency, which is prior to discussing any seller's or landlord's property
with a potential buyer or tenant and prior to discussing any potential buyer or
tenant with a seller or landlord, when both the seller or landlord and the
buyer or tenant are represented by and are clients of the licensee.
(1) All withdrawals shall be made in writing
and acknowledged by the separate signatures of the clients.
(2) Such withdrawal shall not prejudice the
ability of the licensee to continue to represent the other client in the
transaction or limit the licensee from representing the client in other
transactions not involving a dual agency.
(2) A dual agency consent agreement shall:
a. Fairly and accurately describe the type of
representation the licensee will provide each client;
b. Contain a statement of the licensee's
duties under Iowa Code section
543B.56,
subsection 1;
c. Contain a
statement of the licensee's duties under Iowa Code section
543B.56,
subsection 2;
d. Inform the clients
that representing more than one party to a transaction may present a conflict
of interest;
e. Inform the clients
that they are not required to consent to dual agency;
f. Provide additional information that the
licensee determines is necessary to clarify the licensee's relationship with
each client, including any changes from prior types of
representation;
g. Describe the
confidential information a dual agent will not disclose to one client about the
other client; and
h. Include a
statement that the clients understand the licensee's duties and consent to the
licensee's providing brokerage services to more than one client.
(3) No particular
disclosure language is required. The commission recommends use of the following
sample language to satisfy the required disclosure regarding conflict of
interest:
Representing more than one party to a transaction can create a
conflict of interest since both clients may rely upon the broker's advice and
the clients' respective interests may be adverse to each other Broker will
endeavor to be impartial between seller and buyer and will not represent the
interest of either the seller or buyer to the exclusion or detriment of the
other12.5(4) Potential dual agency agreement. A brokerage which
has a company policy that permits disclosed dual agency for in-house
transactions and that elects to use a potential dual agency agreement shall
provide the agreement to the client or prospective client prior to engaging in
any activities of a dual agent. Such consent agreement shall comply with Iowa
law and commission rules.
a. The
potential dual agency agreement should be provided to the seller or landlord
prior to entering into a listing agreement or a contract for seller or landlord
brokerage services.
b. The
potential dual agency agreement should be provided to the buyer or tenant prior
to entering into a buyer or tenant agency agreement or a contract for buyer or
tenant brokerage services.
c. If
the parties to a proposed transaction or contract have agreed in writing to
potential dual agency, a dual agency consent disclosure shall be presented to
the buyer or tenant prior to the buyer's or tenant's signing an offer to
purchase or a rental or lease agreement. The buyer or tenant may accept or
reject dual agency at this point in the transaction.
d. If the parties to a proposed transaction
or contract have agreed in writing to potential dual agency, a dual agency
consent disclosure shall be presented to the seller or landlord prior to the
seller's or landlord's signing or accepting an offer to purchase or a rental or
lease agreement. The seller or landlord may accept or reject dual agency at
this point in the transaction.
e.
If the parties to a proposed transaction or contract have agreed in writing to
potential dual agency, the required subsequent dual agency consent disclosure
shall be property-specific and comply with Iowa law and commission
rules.
