Dual Agency Alive and Well in New Hampshire

By
Real Estate Agent with Prudential Verani Realty/Hampstead
                     Dual Agency Rule change effective May 1 2007

The New Hampshire Real Estate Commission recently approved rule changes that go into effect on May 1 2007.  These changes now bring the Rules (REA) in line with the Law and as some of you know changes to the law (RSA) 331-A:25-d Disclosed Dual Agent;Duties were approved in 2005 and since that time the "Rules" really didn't make any sense.

Many agents seem to be a little confused by the difference between RSA's (Laws) and the REA's (Rules)...what is what...and which one do you listen to? Now that won't be a problem any more but to clarify I have always considered the Law (RSA's)to be like your car's owners manual...full of advice on what Must be done and the Rules (REA's) to be like the operators manual...telling you How to do what must be done. Make sense?

Our Rules will now coincide with our Law!

The biggest change is to REA 701.01 Agency and Non Agency Disclosure and Rea 404.4 Brokerage Contracts

REA 701.01

(a) A licensee shall provide a written agency relationship disclosure to the consumer at the time of first business meeting.
(b) A licensee showing a property listed with another agency shall disclose their agency or non-agency relationship verbally or in writing to the other party’s agent prior to showing the property and in the writing at time of the offer.
(c) Licensees shall use the agency/non-agency disclosure form adopted by the commission (as of this writing they are still developing the form that we all will have to use)
(f) A licensee intending to act in the capacity of a dual agent shall:

(1) At the time of first meeting with a consumer to discuss a specific property, provide a written agency relationship disclosure pursuant to Rea 701 .01(a);
(2) On the listing contract and buyer agency/tenant representation contract, give the client the option to accept or deny a dual agency statement of consent to showings, pursuant to Rea 404.04;
(3) have the informed consent to dual agency agreement  signed and reviewed  by the buyer/tenant and seller/landlord at the time which in the dual agency occurs but no later than the preparation of a written offer for sale or lease pursuant to Rea 404.04

Changes to Rea 404.4 Brokerage Contracts as of May 1 2007 will now require that listing agreement and buyer agency agreements have consent for dual agency showings within the agreement by separate dated signatures.

Caution...You must be sure to gain Informed written consent at time of listing for potential Dual Agency showings and then be sure to get the actual consent form signed prior to drafting an offer for sale or lease of real estate.

Best Practice...Make sure you have (1.) signed consent for showings on the listing agreement and then (2.) Contact your seller client and inform them that a dual agency showing is taking place and try to get written consent...if unable to get written consent...make sure you get it before you present or draft an offer and make sure your buyer client understands what dual agency really means.

These changes are more in line with how we actually do business in NH but if not handled correctly the agent has more rope to hang themselves with in my opinion.


Need a refresher on what dual agency in New Hampshire is check out my blog post called Dual Agency Life in the Fast Lane

The New Hampshire Association of REALTORS will be adding new forms to our True Forms (forms on line) once we get final approval from the Board of Directors that will reflect these changes.

A listing of the forms pending approval are;

The Revised Forms will include:

CONDITIONAL RELEASE FROM EXCLUSIVE LISTING AGREEMENT

CONDITIONAL RELEASE FROM EXCLUSIVE BUYER AGENCY AGREEMENT

DUAL AGENCY INFORMED CONSENT AGREEMENT

EXCLUSIVE AGENCY AGREEMENT

EXCLUSIVE BUYER AGENCY AGREEMENT

EXCLUSIVE LISTING AGREEMENT

PROPERTY DISCLOSURE – LAND

PROPERTY DISCLOSURE – RESIDENTIAL ONLY

PURCHASE AND SALES AGREEMENT AND DEPOSIT RECEIPT

 

Brand Spanking New Forms will be:

BUYER AGENCY DISCLOSURE

SELLERS SUITABLE HOUSING ADDENDUM TO PURCHASE AND SALES AGREEMENT AND DEPOSIT RECEIPT

 

I'm sure we'll all have a bit of a learning curve to go through but these forms will make it easier for all of us. 

 


 

 

 






 

Jay and Monika McGillicuddy

Prudential Verani Realty

Hampstead NH 

603-548-7728
 
Posted by

Jay and Monika McGillicuddy, Southern NH and the Seacoast area real estate specialists.

Jay and Monika McGillicuddy, covering southern NH and the Seacoast area. If you’re thinking of selling or buying a southern NH or Seacoast area home give us a call…we’d love to help make your home ownership dreams come true.

E-mail Jay and Monika or call or text at 603-548-7728

Jay and Monika McGillicuddy, NH REALTORS

Prudential Verani Realty

603-944-9172 direct line

603-926-3648 office

 

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Location:
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Agency Laws
Tags:
dual agency
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monika mcgillicuddy
nh
nh real estate commission
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Rainmaker
334,601
Ann Cummings
Portsmouth NH Homes - Service With a Smile!
RE/MAX By The Bay - NH and Maine

Monika - my head hurts!!! 

In my opinion, and it's just mine based on selling real estate in Maine as well as New Hampshire, I really REALLY wish we'd get our act together in NH and put Appointed Agency or Designated Agency in place.  It is SO much cleaner for all parties to have Appointed Agents.  I use that all the time in Maine, and being in an office the size of mine, I can tell you it makes life so much easier in Maine, as we have probably 3/4 of us licensed in both states. 

Great post!
Ann

March 04, 2007 06:45 PM
Ambassador
2,342,450
Lenn Harley
Real Estate Broker - Virginia & Maryland
Lenn Harley, Homefinders.com, MD & VA Homes and Real Estate

Sounds like the powers in NH have been talking with the powers in MD. 

Very similar.  Very easy to work with and about 10% compliance.

Lenn

March 04, 2007 06:48 PM
Rainer
57,145
Monika McGillicuddy
NH Real Estate Broker
Prudential Verani Realty

Ann...My head hurts too!! There is a task force looking into your wishes :) maybe things will change.

Lenn...About 10% compliance? Wow!!!

 

March 04, 2007 07:41 PM
Rainmaker
334,601
Ann Cummings
Portsmouth NH Homes - Service With a Smile!
RE/MAX By The Bay - NH and Maine

I hope things will change, for the better, Monika.  And I hope they do a better job this time around of explaining it to our members, and I truly hope we don't get submarined by a few of our own members in front of the Legislature like last time, too. 

Ann

March 04, 2007 07:52 PM
Rainmaker
315,766
Monika McGillicuddy
Southern NH & the Seacoast Area
Prudential Verani Realty/Hampstead

I'd expect a battle Ann. I do think if it all happens that it will be for the better. I can't wait...meantime we deal with these changes the best we can.

 

March 04, 2007 07:58 PM
Rainmaker
315,766
Monika McGillicuddy
Southern NH & the Seacoast Area
Prudential Verani Realty/Hampstead
BTW Ann I like the new forms and hope they all get approved. But with the BOD you just never know.
March 04, 2007 07:59 PM
Rainer
64,690
Kelli Fronabarger
Realtor - Bend Oregon
Bend River Realty Inc.

Monika,

Wow- Great job with this one! I think dual agency is dangerous business and wish they would rule it out here in Oregon. What an asset you are to the state of NH : )

March 04, 2007 08:08 PM
Rainmaker
315,766
Monika McGillicuddy
Southern NH & the Seacoast Area
Prudential Verani Realty/Hampstead
Thank you Kelli...I appreciate your comment. Dual agency can be very dangerous. I'm hoping it is on it's out in NH....but I know that will take awhile to do! Thanks for stopping by.
March 04, 2007 08:19 PM
Rainmaker
90,946
Roger Stensland
King & Pierce County Homes Home Resource Group -
Keller Williams Realty Puget Sound
I happen to like dual agency and see no problems as long as it is disclosed to all parties and in full compliance with the law.  Up here in Washington it doesn't seem to happen all that often.  I haven't seen any recent legal action taken because of it either.        
March 04, 2007 09:31 PM
Rainmaker
315,766
Monika McGillicuddy
Southern NH & the Seacoast Area
Prudential Verani Realty/Hampstead
Roger...The key is full disclosure. I've acted as dual agent many times with full disclosure, so I know it can be done successfully.  I don't like being a DDA or the risks associated with it...but it is legal in our state and I practice it. Thanks so much for commenting.
March 04, 2007 10:10 PM
Rainer
122,017
Christy Powers
Pooler, Savannah Real Estate Agent
Keller Williams Coastal Area Partners
It's not legal here in Georgia but I believe it was in Pennsylvania and may be still is.
March 04, 2007 10:18 PM
Anonymous #20
Anonymous
Brad

Just curious, is true forms your online contracts? Is zipforms available in your area? I thought every agent used winforms or zipforms online contracts. Who publishes true forms and how is the support? again, just curious.

March 04, 2007 11:08 PM
Anonymous #21
Anonymous
Brad

Just curious, is true forms your online contracts? Is zipforms available in your area? I thought every agent used winforms or zipforms online contracts. Who publishes true forms and how is the support? again, just curious.

March 04, 2007 11:08 PM
Ambassador
1,802,825
Jeff Dowler CRS
Carlsbad CA Homes for Sale (760) 840-1360
Solutions Real Estate

Nice summary of the new rules, especially given the issues of dual agency. Sounds much like what we had in MA when I was working there 2 years ago. I second (third?) what has been said about your teaching blog.

Jeff

March 04, 2007 11:20 PM
Rainmaker
620,086
Randy Prothero
Hawaii REALTOR, (808) 384-5645
Island Style Realty Inc.

Dual agency is alive and well in Hawaii.  It is also the number reason for complaints filed.  We were told last year by the board of Realtors, that it will soon be passed by agent providing multiple services as the number one complaint.

March 20, 2007 09:57 PM
Rainer
5,200
Michelle Hansen Nuzzelillo, Broker/Owner
The Red House Realty Group

Wow, thanks for the heads up on the new changes, Monika. We had heard 'something' was changing May 1 but nobody seemed to know the details!

March 05, 2007 05:58 AM
Ambassador
2,342,450
Lenn Harley
Real Estate Broker - Virginia & Maryland
Lenn Harley, Homefinders.com, MD & VA Homes and Real Estate

Actually, I've never found that Dual Agency is such a problem in this area.  What IS a problem is the regular occurance of UNDISCLOSED Dual Agency, which is FRAUD. 

Also, the problem with the Dual Agency forms is that the buyers sign them without knowing what it means.  Uninformed consent is not consent. 

The real problem in this entire agency matter is the dearth of understanding on the part of the public about the meaning of the word so loosely tossed around of "representation". 

March 05, 2007 06:48 AM
Rainmaker
315,766
Monika McGillicuddy
Southern NH & the Seacoast Area
Prudential Verani Realty/Hampstead

Christy...Thank you for stopping by and commenting.

Brad...True forms is our online contracts provided by our state assocition and is part of our membership benefits. I use them all the time and the support has been great. We are going through some major revisions due to law changes. The company that publishes them is called Reveal.

Thank you Jeff...New Rules are always hard an dual agency confusing no matter what. Thank you so much for the compliments Jeff :)

Randy...Our commission also has a lot of DDA complaints come in. Hot topic dual agency is and probably always will be.

Michelle...Thank so much for commenting. One thing to keep in mind is that we will have to use the disclosure form provided by the commission and only that form. They don't have ta form approved yet...hopefully we'll have it by May 1.

Lenn...UNDISCLOSED Dual Agency is a major issue!  I think agents have a hard time explaining it to begin with and then consumers don't understand it...a vicious circle!!! Lots of truley uninformed consent happening.

March 05, 2007 05:57 PM
Rainmaker
620,086
Randy Prothero
Hawaii REALTOR, (808) 384-5645
Island Style Realty Inc.
We tend to get a fair number of dual agencies here in Hawaii.  All transactions are with the brokerage.  Any transaction where the agents on both sides have their license with the same company is considered a dual agency.  In many situations it is hard for us to avoid it.
March 20, 2007 11:09 PM
Rainer
30,187
Wynne Achatz
Michigan Realtor and Notary Trust,Care, Experience
Real Estate One Westrick

Dual Agency is alive and well in MICHIGAN>< too. In my firm, we get through the agency disclosures before we start looking at homes. The goal is to meet the client at the office on thre first occassion. We go over agency, terms of sale and other prequalifying events. Not much of a problem here.

We explain upfront that if the buyer happens to buy a company listing, he will have choices. 1. We will represent the seller. Here the buyer has a right to another agent should he chose to get one. (Note: This has never happened to anyone in my firm.) 2. We will be a disclosed dual agent at the buyer's choice. The sellers 9 out 10 ten times will accept Disclosed Dual Agency. we actually have some buyers that don't care as long as we apromise to be fair and truthful.

Anyway you look at it, Disclosed Dual Agency CAN be a WIN WIN for anyone that follows the rules

March 20, 2007 07:04 PM
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Rainmaker
315,766

Monika McGillicuddy

Southern NH & the Seacoast Area
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