TITLE 16 OCCUPATIONAL AND PROFESSIONAL LICENSING

CHAPTER 61 REAL ESTATE BROKERS

PART 19 BROKER DUTIES AND BROKERAGE RELATIONSHIPS

16.61.19.1 ISSUING AGENCY: New Mexico Real Estate Commission.

[16.61.19.1 NMAC - Rp, 16.61.19.1 NMAC, 1-1-2004]

16.61.19.2 SCOPE: The provisions in Part 19 of Chapter 61 apply to all licensed associate brokers and qualifying brokers in New Mexico.

[16.61.19.2 NMAC - Rp, 16.61.19.2 NMAC, 1-1-2004; A, 1-1-2006]

16.61.19.3 STATUTORY AUTHORITY: Part 19 of Chapter 61 is promulgated pursuant to the Real Estate Licensing Law, NMSA 1978 Section 61-29-4.

[16.61.19.3 NMAC - Rp, 16.61.19.3 NMAC, 1-1-2004]

16.61.19.4 DURATION: Permanent.

[16.61.19.4 NMAC - Rp, 16.61.19.4, 1-1-2004]

16.61.19.5 EFFECTIVE DATE: 1-1-2004, unless a later date is cited at the end of a section.

[16.61.19.5 NMAC - Rp, 16.61.19.5 NMAC, 1-1-2004]

16.61.19.6 OBJECTIVE: The objective of Part 19 of Chapter 61 is to define the duties of real estate associate brokers and qualifying brokers, to define the various potential brokerage relationships and to define the disclosures associate brokers and qualifying brokers are required to make when working with consumers.

[16.61.19.6 NMAC - Rp, 16.61.19.6 NMAC, 1-1-2004; A, 1-1-2006]

16.61.19.7 DEFINITIONS: Refer to 16.61.1.7 NMAC.

[16.61.19.7 NMAC - Rp, 16.61.19.7 NMAC, 1-1-2004]

16.61.19.8 BROKER DUTIES; DISCLOSURE: Before the time a broker generates or presents any written document that has the potential to become an express written agreement, the broker shall disclose in writing to their prospective customer or client, and obtain a written acknowledgement from their prospective customer or client, showing the delivery of the disclosure of the following broker duties:

A. honesty and reasonable care as set forth in the provisions of this section;

B. 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, and other applicable local, state, and federal laws and regulations;

C. performance of any and all written agreements made with the customer or client;

D. assistance to the broker’s customer or client in completing the transaction, unless otherwise agreed to in writing by the customer or client, including:

(1) presentation of all offers or counter-offers in a timely manner; and

(2) assistance in complying with the terms and conditions of the contract and with the closing of the transaction; if the broker in the transaction is not providing the service, advice or assistance described in Paragraphs (1) and (2) of Subsection D of 16.61.19.8 NMAC, the customer or client must agree in writing that the broker is not expected to provide such service, advice or assistance, and the broker shall disclose the existence of such agreement in writing to the other brokers involved in the transaction;

E. acknowledgement by the broker that there may be matters related to the transaction that are outside the associate broker's or qualifying broker's knowledge or expertise and that the associate broker or qualifying broker will suggest that the customer or client seek expert advice on these matters;

F. prompt accounting for all money or property received by the broker;

G. disclosure of any potential conflict of interest that the broker has in the transaction including but not limited to:

(1) any written brokerage relationship the broker has with any other parties to the transaction or;

(2) any material interest or relationship of a business, personal, or family nature that the broker has in the transaction;

(3) other brokerage relationship options available in New Mexico;

H. 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;

I. maintenance of any confidential information learned in the course of any prior agency relationship unless the disclosure is with the former client's consent or is required by law;

J. unless otherwise authorized in writing, an associate broker or qualifying broker shall not disclose to their customer or client during the transaction that their seller client or customer has previously indicated they will accept a sales price less than the asking or listed price of a property; that their buyer client or customer has previously indicated they will pay a price greater than the price submitted in a written offer; the motivation of their client or customer for selling or buying property; that their seller client or customer or their buyer client or customer will agree to financing terms other than those offered; or any other information requested in writing by the associate broker's or the qualifying broker's customer or client to remain confidential, unless disclosure is required by law.

[16.61.19.8 NMAC - Rp, 16.61.19.8 NMAC, 1-1-2004; A, 1-30-2004; A, 3-27-2004; A, 1-1-2006; A, 1-1-2006, A, 1-1-2007; A, 12-31-2008; A, 1-1-2012]

16.61.19.9 BROKERAGE RELATIONSHIPS: Brokerages working with consumers either as customers or clients may do so through a variety of brokerage relationships. These relationships include but are not limited to a transaction broker relationship, an exclusive agency relationship or a dual agency relationship. For all regulated real estate transactions, a customer or client may enter into an express written agreement to become a client of a brokerage without creating an agency relationship, and no agency duties will be imposed.

A. Transaction broker: a qualifying broker, associate broker or brokerage that provides real estate services without entering into an agency relationship. The transaction broker relationship is a non-fiduciary relationship.

B. Exclusive agency: an express written agreement between a person and a brokerage wherein the brokerage agrees to exclusively represent as an agent the interests of the person in a real estate transaction. Such agreements include buyer agency, seller agency, designated agency, and subagency agreements.

C. Dual agency: an express written agreement that modifies existing exclusive agency agreements to provide that the brokerage agrees to act as a facilitator in a real estate transaction rather than as an exclusive agent for either party to the transaction.

[16.61.19.9 NMAC - Rp, 16.61.19.9 NMAC, 1-1-2004; A, 12-31-2008; A. 1-1-2012]

16.61.19.10 DUAL AGENCY RELATIONSHIP:

A. Dual agency occurs when:

(1) an associate broker or qualifying broker is agent for both a seller client and a buyer client in the same transaction;

(2) an associate broker is agent for either a seller client or a buyer client, and the agent's qualifying broker is agent for the other client in the transaction; and,

(3) in a transaction where a buyer client and a seller client are each served by different associate brokers in an agency relationship supervised by the same qualifying broker, and the qualifying broker does not choose the designated agency option, both the associate brokers and the qualifying broker are dual agents in the transaction.

B. In all situations, a dual agent shall act in the capacity of a facilitator rather than as an exclusive agent of either party to the transaction.

C. Prior to writing or presenting offers, a dual agent shall obtain written authority from the buyer client and the seller client in the form of a separate dual agency agreement.

D. Information obtained by an associate broker or qualifying broker prior to the time that written authority for dual agency was granted shall not be disclosed to the other party unless required by law or rules or permitted by the client who originally disclosed the confidential information.

[16.61.19.10 NMAC - Rp, 16.61.19.11 NMAC, 1-1-2004; A, 1-1-2006]

HISTORY OF 16.61.19 NMAC:

Pre-NMAC History: The material in this part was derived from that previously filed with the State Records Center and Archives under:

NMREC Rule 18, Agency: Relationship, Disclosure and Compensation, filed 12-17-91; and

Rule 18, Licensee Duties: Brokerage Relationships/ Disclosure, filed 4-13-95.

History of Repealed Material:

16 NMAC 61.19, Licensee Duties; Brokerage Relationships/Disclosures (filed 12-17-96) repealed 1-1-2000.

16.61.19 NMAC, Brokerage Relationships and Disclosures (filed 11-30-2001) is repealed effective 1-1-2004.

Other History:

Rule 18, Licensee Duties: Brokerage Relationships/ Disclosure (filed 4-13-95) was reformatted, renumbered, and replaced by 16 NMAC 61.19, Agency Relationships/Disclosures, effective 1-31-97.

16 NMAC 61.19, Agency Relationships/Disclosures (filed 12/17/96) was replaced by 16 NMAC 61.19, Licensee Duties, Brokerage Relationships and Disclosures, effective 1-1-2000.

16 NMAC 61.19, Brokerage Relationships and Disclosures (filed 12-10-99) reformatted, amended, renumbered, and replaced by 16.61.19 NMAC, Brokerage Relationships and Disclosures, effective 1-1-2002.

16.61.19 NMAC, Brokerage Relationships and Disclosures (filed 11-30-2001) replaced by 16.61.19 NMAC, Basic Licensee Duties, Disclosure, Brokerage Relationships and Dual Agency Relationships, effective 1-1-2004.