(1) A broker engaged as a transaction-broker is not an agent for either party.
(2) A transaction-broker shall have the following obligations and responsibilities:
To perform the terms of any written or oral agreement made with any party to thetransaction;
To exercise reasonable skill and care as a transaction-broker, including, but not limited to:
Presenting all offers and counteroffers in a timely manner regardless of whether theproperty is subject to a contract for sale or lease or letter of intent;
Advising the parties regarding the transaction and suggesting that the parties obtainexpert advice as to material matters about which the transaction-broker knows but the specifics of which are beyond the expertise of the broker;
Accounting in a timely manner for all money and property received;
Keeping the parties fully informed regarding the transaction;
Assisting the parties in complying with the terms and conditions of any contractincluding closing the transaction;
Disclosing to all prospective buyers or tenants any adverse material facts actuallyknown by the broker including but not limited to adverse material facts pertaining to the title, the physical condition of the property, any defects in the property, and any environmental hazards affecting the property required by law to be disclosed;
Disclosing to any prospective seller or landlord all adverse material facts actuallyknown by the broker including but not limited to adverse material facts pertaining to the buyer's or tenant's financial ability to perform the terms of the transaction and the buyer's intent to occupy the property as a principal residence; and
Informing the parties that as seller and buyer or as landlord and tenant they shallnot be vicariously liable for any acts of the transaction-broker;
To comply with all requirements of this article 10 and any rules promulgated pursuant to this article 10; and
To comply with any applicable federal, state, or local laws, rules, regulations, orordinances including fair housing and civil rights statutes or regulations.
(3) The following information shall not be disclosed by a transaction-broker without the informed consent of all parties:
That a buyer or tenant is willing to pay more than the purchase price or lease rateoffered for the property;
That a seller or landlord is willing to accept less than the asking price or lease rate forthe property;
What the motivating factors are for any party buying, selling, or leasing the property;
That a seller, buyer, landlord, or tenant will agree to financing terms other than thoseoffered;
Any facts or suspicions regarding circumstances that may psychologically impact orstigmatize any real property pursuant to section 38-35.5-101; or
Any material information about the other party unless disclosure is required by law orfailure to disclose the information would constitute fraud or dishonest dealing.
A transaction-broker has no duty to conduct an independent inspection of the property for the benefit of the buyer or tenant and has no duty to independently verify the accuracy or completeness of statements made by the seller, landlord, or independent inspectors.
A transaction-broker has no duty to conduct an independent investigation of the buyer's or tenant's financial condition or to verify the accuracy or completeness of any statement made by the buyer or tenant.
A transaction-broker may do the following without breaching any obligation or responsibility:
Show alternative properties not owned by the seller or landlord to a prospective buyer or tenant;
List competing properties for sale or lease;
Show properties in which the buyer or tenant is interested to other prospective buyersor tenants; and
Serve as a single agent or transaction-broker for the same or for different parties inother real estate transactions.
There shall be no imputation of knowledge or information between any party and thetransaction-broker or among persons within an entity engaged as a transaction-broker.
A transaction-broker may cooperate with other brokers but shall not engage or createany subagents.
Source: L. 2019: Entire title R&RE with relocations, (HB 19-1172), ch. 136, p. 650, § 1, effective October 1.
Editor's note: This section is similar to former § 12-61-807 as it existed prior to 2019. 12-10-408. Broker disclosures. (1) (a) Any person, firm, partnership, limited liability company, association, or corporation acting as a broker shall adopt a written office policy that identifies and describes the relationships offered to the public by the broker.
A broker shall not be required to offer or engage in any one or in all of the brokeragerelationships enumerated in section 12-10-404, 12-10-405, or 12-10-407.
Written disclosures and written agreements required by subsection (2) of this sectionshall contain a statement to the seller, landlord, buyer, or tenant that different brokerage relationships are available that include buyer agency, seller agency, or status as a transactionbroker. Should the seller, landlord, buyer, or tenant request information or ask questions concerning a brokerage relationship not offered by the broker pursuant to the broker's written office policy enumerated in subsection (1)(a) of this section, the broker shall provide to the party a written definition of that brokerage relationship that has been promulgated by the real estate commission.
Disclosures made in accordance with this part 4 shall be sufficient to disclose brokerage relationships to the public.
(2) (a) (I) Prior to engaging in any of the activities enumerated in section 12-10-201 (6), a transaction-broker shall disclose in writing to the party to be assisted that the broker is not acting as agent for the party and that the broker is acting as a transaction-broker.
As part of each relationship entered into by a broker pursuant to subsection (2)(a)(I) of this section, written disclosure shall be made that shall contain a signature block for the buyer, seller, landlord, or tenant to acknowledge receipt of the disclosure. The disclosure and acknowledgment, by itself, shall not constitute a contract with the broker. If the buyer, seller, landlord, or tenant chooses not to sign the acknowledgment, the broker shall note that fact on a copy of the disclosure and shall retain the copy.
If the transaction-broker undertakes any obligations or responsibilities in addition toor different from those set forth in section 12-10-407, the obligations or responsibilities shall be disclosed in a writing that shall be signed by the involved parties.
Prior to engaging in any of the activities enumerated in section 12-10-201 (6), abroker intending to establish a single agency relationship with a seller, landlord, buyer, or tenant shall enter into a written agency agreement with the party to be represented. The agreement shall disclose the duties and responsibilities specified in section 12-10-404 or 12-10-405, as applicable. Notice of the single agency relationship shall be furnished to any prospective party to the proposed transaction in a timely manner.
(I) Prior to engaging in any of the activities enumerated in section 12-10-201 (6), abroker intending to work with a buyer or tenant as an agent of the seller or landlord shall provide a written disclosure to the buyer or tenant that shall contain the following:
A statement that the broker is an agent for the seller or landlord and is not an agentfor the buyer or tenant;
A list of the tasks that the agent intends to perform for the seller or landlord with thebuyer or tenant; and
A statement that the buyer or tenant shall not be vicariously liable for the acts of theagent unless the buyer or tenant approves, directs, or ratifies the acts.
(II) The written disclosure required pursuant to subsection (2)(c)(I) of this section shall contain a signature block for the buyer or tenant to acknowledge receipt of the disclosure. The disclosure and acknowledgment, by itself, shall not constitute a contract with the broker. If the buyer or tenant does not sign the disclosure, the broker shall note that fact on a copy of the disclosure and retain the copy.
A broker who has already established a relationship with one party to a proposedtransaction shall advise at the earliest reasonable opportunity any other potential parties or their agents of the established relationship.
(I) Prior to engaging in any of the activities enumerated in section 12-10-201 (6), theseller, buyer, landlord, or tenant shall be advised in any written agreement with a broker that the brokerage relationship exists only with the designated broker, does not extend to the employing broker or to any other brokers employed or engaged by the employing broker who are not so designated, and does not extend to the brokerage company.
(II) Nothing in this subsection (2)(e) shall be construed to limit the employing broker's or firm's responsibility to supervise licensees employed by the broker or firm nor to shield the broker or firm from vicarious liability.
Source: L. 2019: Entire title R&RE with relocations, (HB 19-1172), ch. 136, p. 652, § 1, effective October 1.
Editor's note: This section is similar to former § 12-61-808 as it existed prior to 2019.