For any real estate transaction, it is important that both parties are represented, and that this representation is legally binding. The existence of an agency that represents one party and has no other representation on the behalf of other parties is referred to in real estate law as an exclusive agent. There are situations where one party may have an “inherently limited” representation from another party that is not a direct representation such as an owner-occupant or tenant-occupant. This situation may arise, for example, when a seller retains a real estate agent on his behalf, but only to manage the property for the duration of the closing process.
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It should be noted that neither the term “general agent” nor the term “exclusive agent” is legally defined by the courts in either the state or federal context. However, it should be noted that in most states, an exclusive or general agent is one who has qualified under state law to transact the business of selling or buying real estate, as regulated by the state Real Estate Agents Bureau (RES). A RES also includes among its list of licensing requirements, that the agent participates in ongoing education programs. In addition, the agent must maintain a certain minimum number of real estate transactions, including both residential and non-residential properties. Furthermore, if a real estate agency is a member of the National Association of Realtors (NAR), then it is also required by state law to be a member of the NAR and follow the rules set forth in their charter.
Subsection (b) – Effect of Contracts Relating to Specific Transactions shall be interpreted as follows: The term “specific contract” refers to any real estate license agreement, real estate seller/buyer agreement, open purchase order, restrictive covenants or contract terms that explicitly identify the parties to the transaction. For example, a contract that identifies an open purchase option only allows the buyer of a residential property to purchase the property without entering into a purchase contract with the seller. Similarly, a real estate license agreement could have a term such as “sole proprietorship” to mean that the agents are personally liable for all real estate transactions completed under that contract and that no other party is responsible for those transactions. Similarly, if a real estate agent is the seller of a residential property and holds a seller-financing option, then the term “seller-financing” refers to a real estate license agreement that holds the seller financially responsible for the complete cost of the transaction. As such, it is imperative that the drafter carefully considers whether the use of “specific contract” and “dry run” is appropriate.