Current through Register Vol. 35, No. 6, March 26, 2024
Brokers owe specific broker duties to prospective buyers,
sellers, landlords (owners), tenants as set forth herein, 16.61.19.8 NMAC.
Brokers shall disclose the applicable set of broker duties owed to buyers,
sellers, landlords (owners) of rental property and tenants as set forth herein,
16.61.19.8 NMAC, prior to the time the broker generates or presents any written
document to that party that has the potential to become an express written
agreement and obtain from that applicable party written acknowledgement that
the broker has made such disclosures. Brokers shall perform all duties
established for brokers by the commission. In the case of prospective buyers,
sellers, landlord (owners) and tenants to whom the broker is not directly
providing real estate services, such disclosure and acknowledgment of receipt
shall be made through the broker who is directly providing real estate services
to that buyer, seller, landlord (owner) or tenant.
A. Brokers owe the following duties to
prospective buyers, sellers, landlords (owners) and tenants:
(1) Honesty and reasonable care and ethical
and professional conduct.
(2)
Compliance with local, state, and federal fair housing and anti-discrimination
laws, the New Mexico real estate license law and the real estate commission
rules, the New Mexico Uniform Owner Resident Relations Act, and other
applicable local, state, and federal laws and regulations.
(3) Performance of any and all written
agreements made with the prospective buyer, seller, landlord (owner) or
tenant.
(4) Written disclosure of
any potential conflict of interest that the broker has in the transaction
including but not limited to:
(a) Any written
brokerage relationship the broker has with any other parties to the
transaction,
(b) Any material
interest or relationship of a business, personal, or family nature that the
broker has in the transaction, or;
(c) Any written agreement the broker has with
a transaction coordinator who will be providing brokerage services related to
the transaction.
(5)
Written disclosure of any adverse material facts actually known by the
associate broker or qualifying broker about the property or the transaction, or
about the financial ability of the parties to the transaction to complete the
transaction; adverse material facts requiring disclosure do not include any
information covered by federal fair housing laws or the New Mexico Human Rights
Act.
B. In addition to
the broker duties owed to prospective buyers, sellers, landlords (owners) and
tenants as set forth in this Subsection A of 16.61.19.8 NMAC, Brokers owe the
following broker duties to the buyers, sellers, landlord (owners) and tenants
to whom the broker is directly providing real estate services, regardless of
the scope and nature of those services; brokers working as property managers
for a landlord (owner) are directly providing real estate services to the
landlord (owner), not to the tenant:
(1)
Assistance to the party in completing the transaction, unless otherwise agreed
to in writing by the party to whom the broker is directly providing real estate
services, including:
(a) Timely presentation
of and response to all written offers or counter-offers; and
(b) Active participation in assisting in
complying with the terms and conditions of the contract and with the
finalization of the transaction;
If the broker in the transaction is not providing the
service, advice or assistance described in Paragraphs (a) and (b) of this
Subsection B of 16.61.19.8 NMAC, the party must agree in writing that the
broker is not expected to provide such service, advice or assistance. The
broker shall disclose the existence of such agreement in writing to the other
brokers involved in the transaction.
(2) Acknowledgement by the broker that there
may be matters related to the transaction that are outside the broker's
knowledge or expertise and that the broker will suggest that the party seek
expert advice on these matters.
(3)
Advice to consult with an attorney regarding the effectiveness, validity or
consequences of any written document generated by the brokerage or presented to
the party and that has the potential to become an express written
agreement.
(4) Prompt accounting
for all money or property received by the broker;
(5) Maintenance of any confidential
information learned in the course of any prior agency relationship unless the
disclosure is with the former principal's written consent or is required by
law;
(6) Written disclosure of
brokerage relationship options available in New Mexico;
(7) Unless otherwise authorized in writing, a
broker who is directly providing real estate services to a seller/owner shall
not disclose the following to the buyer/tenant in a transaction:
(a) That the seller/owner has previously
indicated they will accept a sales/lease price less than the asking or listed
price of a property;
(b) That the
seller/owner will agree to financing terms other than those offered;
(c) The seller/owner's motivations for
selling/leasing; or
(d) Any other
information the seller/owner has requested in writing remain confidential,
unless disclosure is required by law.
(8) Unless otherwise authorized in writing, a
broker who is directly providing real estate services to a buyer/tenant shall
not disclose the following to the seller/owner in the transaction:
(a) That the buyer/tenant has previously
indicated they will pay a price greater than the price submitted in a written
offer;
(b) The buyer/tenant's
motivation for buying/leasing; or
(c) Any other information the buyer has
requested in writing remain confidential, unless disclosure is required by
law.
(9) In the event the
broker is working for the landlord (owner) as a residential property manager,
the broker additionally owes to the landlord (owner) all duties owed under the
law of agency.
C. In
addition to the broker duties owed to prospective buyers, sellers, landlords
(owners) and tenants as set forth in this Subsection A of 16.61.19.8 NMAC,
brokers working as property managers for a landlord (owner) owe the following
duties to tenants:
(1) Prompt accounting for
all money or property received by the broker from the tenant, including
issuance of a receipt for cash received;
(2) If a residential property manager,
written disclosure that the broker is the agent of the owner of the property
and not of the tenant; in the commercial property management context, written
disclosure of the broker's relationship with the landlord
(owner).
D. Broker
obligations to other brokers. Brokers owe the following professional
obligations to other brokers; however, brokers are not required to provide to
one another a list of these broker obligations.
(1) Honesty, reasonable care, and ethical and
professional conduct;
(2) Timely
presentation of all written offers or counter-offers and responses thereto,
unless otherwise agreed to in writing by the party to whom the broker is
directly providing real estate services;
(3) Active participation in assisting the
party to whom the broker is directly providing real estate services in
complying with the terms and conditions of the contract and with the closing of
the transaction, unless otherwise agreed to in writing by the party to whom the
broker is directly providing real estate services;
(4) Compliance with local, state, and federal
fair housing and anti-discrimination laws, the New Mexico real estate license
law and the real estate commission rules; the New Mexico Uniform Owner-Resident
Relations Act, and other applicable local, state, and federal laws and
regulations;
(5) Written disclosure
of any adverse material facts actually known by the broker about the property
or the transaction, or about the financial ability of the parties to the
transaction to complete the transaction; adverse material facts requiring
disclosure do not include any information covered by federal fair housing laws
or the New Mexico Human Rights Act;
(6) Written disclosure of any potential
conflict of interest that the broker has in the transaction, including but not
limited to, any material interest the broker has in the transaction or any
relationship of a business, personal, or family nature that the broker has with
a party to the transaction;
(7)
Non-interference with a purchase agreement or any express written agreement
that another broker has with a buyer, seller, landlord (owner) or
tenant.
