1. Kemp  3rd              2. Brown  26th             3. Ray  48th

    
SB 425 00                                            SB425/AP
      
      SENATE BILL 425
      
      By:  Senators Kemp of the 3rd, Brown of the 26th,
           Ray of the 48th and others
      
                        A BILL TO BE ENTITLED
                               AN ACT
    
    
 1  To amend Title 10 of the Official Code of Georgia Annotated,
 2  relating to commerce, so as to revise extensively the
 3  "Brokerage Relationships in Real Estate Transactions Act;"
 4  to revise and add definitions; to change the duties owed by
 5  a broker to a client, customer, seller, buyer, tenant, or
 6  landlord; to change disclosure provisions; to change the
 7  standard of skill in some circumstances; to provide for a
 8  duty of keeping certain information confidential; to provide
 9  for exceptions; to provide for a duty to disclose certain
10  material facts regarding adverse physical conditions in the
11  neighborhood of a property; to change provisions regarding a
12  broker's liability for providing false information; to
13  immunize a broker from liability in certain circumstances,
14  absent a finding of fraud; to change provisions relating to
15  ministerial acts; to provide for a broker's duty in the
16  event of a conflict between the duty to keep a client's
17  confidence and the duty not to give false information to a
18  customer; to change requirements for brokerage engagements;
19  to change provisions relating to dual agency; to provide for
20  designated agents; to provide for ministerial acts and
21  duties of transaction brokers; to provide for related
22  matters; to repeal conflicting laws; and for other purposes.
    
23       BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
    
24                           SECTION 1.
    
25  Title 10 of the Official Code of Georgia Annotated, relating
26  to commerce, is amended by striking in its entirety Chapter
27  6A, the "Brokerage Relationships in Real Estate Transactions
28  Act," and inserting in its place the following:
    
29                          "CHAPTER 6A
    
30    10-6A-1.
    
31    This chapter shall be known as and may be cited as the
32    'Brokerage Relationships in Real Estate Transactions Act.'
    
    
    
33                               S. B. 425
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 1    10-6A-2.
    
 2    (a) The General Assembly finds, determines, and declares
 3    that application of the common law of agency to the
 4    relationships between real estate brokers and persons who
 5    are sellers, buyers, landlords and tenants of rights and
 6    interests in real property has resulted in
 7    misunderstandings and consequences that have been contrary
 8    to the best interests of the public; the General Assembly
 9    further finds, determines, and declares that the real
10    estate brokerage industry has a significant impact upon
11    the economy of the State of Georgia and that it is in the
12    best interests of the public to provide codification of
13    the relationships between real estate brokers and
14    consumers of brokerage services in order to prevent
15    detrimental misunderstandings and misinterpretations of
16    such relationships by both consumers and real estate
17    brokers and thus promote and provide stability in the real
18    estate market.  The provisions of this chapter are enacted
19    to govern the relationships between sellers, landlords,
20    buyers, tenants, and real estate brokers and their
21    affiliated licensees to the extent not governed by
22    individual specific written agreements between and among
23    the parties.
    
24    (b) The General Assembly further finds, determines, and
25    declares that the provisions of this chapter are not
26    intended to prescribe or affect the contractual
27    relationships as between real estate brokers and the
28    broker's affiliated licensees.
    
29    (c) The provisions of this chapter may serve as a basis
30    for private rights of action and defenses by sellers,
31    buyers, landlords, tenants, and real estate brokers.
    
32    10-6A-3.
    
33    As used in this chapter, the term:
    
34      (1) 'Agency' means every relationship in which a real
35      estate broker acts for or represents another as a client
36      by the latter's express written authority in a real
37      property transaction.
    
38      (2) 'Broker' means any individual or entity issued a
39      broker's real estate license by the Georgia Real Estate
40      Commission pursuant to Chapter 40 of Title 43.  The term
41      'broker' includes the broker's affiliated licensees
42      except where the context would otherwise indicate.
    
    
43                               S. B. 425
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 1      (3) 'Brokerage' means the business or occupation of a
 2      real estate broker.
    
 3      (4) 'Brokerage engagement' means an express a written or
 4      oral contract wherein the seller, buyer, landlord, or
 5      tenant becomes the client of the broker and promises to
 6      pay the real estate broker a valuable consideration or
 7      agrees that the real estate broker may receive a
 8      valuable consideration from another in consideration of
 9      the broker producing a seller, buyer, tenant, or
10      landlord ready, able, and willing to sell, buy, or rent
11      the property or performing other brokerage services.
    
12      (5) 'Brokerage relationship' means the resulting agency
13      and nonagency relationships which may be formed between
14      the broker and the broker's client as a result of the
15      brokerage engagement clients and customers, as described
16      in this chapter.
    
17      (6) 'Client' means a person who has entered into a
18      brokerage engagement with is being represented by a real
19      estate broker in an agency capacity pursuant to a
20      brokerage engagement.
    
21      (7) 'Common source information companies' means any
22      person, firm, or corporation that is a source, compiler,
23      or supplier of information regarding real estate for
24      sale or lease and other data and includes but is not
25      limited to multiple listing services.
    
26      (8) 'Customer' means a person who has not entered into a
27      brokerage engagement with a broker is not being
28      represented by a real estate broker in an agency
29      capacity pursuant to a brokerage engagement but for whom
30      a broker may perform ministerial acts in a real estate
31      transaction pursuant to either a verbal or written
32      agreement.
    
33      (9) 'Designated agent' means one or more licensees
34      affiliated with a broker who are assigned by the broker
35      to represent solely one client to the exclusion of all
36      other clients in the same transaction and to the
37      exclusion of all other licensees affiliated with the
38      broker.
    
39      (9)(10) 'Dual agent' means a broker who has a brokerage
40      simultaneously has a client relationship with both
41      seller and buyer or both landlord and tenant in the same
42      real estate transaction. 
    
    
43                               S. B. 425
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 1      (10) 'Limited agent' means a broker who, acting under
 2      the authority of a brokerage engagement, solicits offers
 3      to purchase, sell, lease, or exchange real property
 4      without being subject to the control of the client
 5      except as to the result of the work.
    
 6      (11) 'Material facts' means those facts that a party
 7      does not know, could not reasonably discover, and would
 8      reasonably want to know.
    
 9      (11)(12) 'Ministerial acts' means those acts which a
10      broker or affiliated licensee performs for a person
11      described in Georgia Code Section 10-6A-10 and such other acts
12      which do not require discretion or the exercise of the
13      broker's or affiliated licensee's own judgment the
14      exercise of the broker's or the broker's affiliated
15      licensee's professional judgment or skill.
    
16      (12)(13) 'Timely' means seasonable; a reasonable time
17      under the particular circumstances.
    
18      (14) 'Transaction broker' means a broker who has not
19      entered into a client relationship with any of the
20      parties to a particular real estate transaction and who
21      performs only ministerial acts on behalf of one or more
22      of the parties, but who is paid valuable consideration
23      by one or more parties to the transaction pursuant to a
24      verbal or written agreement for performing brokerage
25      services.
    
26    10-6A-4.
    
27    (a) A broker who performs brokerage services under a
28    brokerage engagement for another is a limited agent,
29    unless a different legal relationship between the broker
30    and the person for whom the broker performs the service is
31    intended and is reduced to writing and for a client or
32    customer shall owe the client or customer only the duties
33    and obligations set forth in this chapter, unless the
34    parties expressly agree otherwise in a writing signed by
35    the parties. If a A broker is not a limited agent, then
36    notice of said different relationship shall be timely
37    furnished to all parties to the proposed real estate
38    transaction. Except as set out in this chapter, a limited
39    agent shall not be deemed to have a fiduciary relationship
40    with any party or fiduciary obligations to any party but
41    shall only be responsible for exercising ordinary
42    reasonable care in the discharge of its specified duties
43    under as provided in this chapter and, in the case of a
    
44                               S. B. 425
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 1    client, as specified in the brokerage engagement.  Unless
 2    a broker enters into a brokerage engagement with a person,
 3    it shall be presumed that the person is a customer of the
 4    broker rather than a client.
    
 5    (b) Whenever a broker's relationship to customers or
 6    clients changes among broker and customer, limited agent
 7    and client, dual agent, or such other different legal
 8    relationship as the parties may agree, the broker shall
 9    disclose that fact broker with an existing brokerage
10    relationship with either a customer or a client enters
11    into a new brokerage relationship with the customer or
12    client, the broker shall timely disclose that fact and the
13    new brokerage relationship to all brokers, customers, or
14    clients involved in the contemplated real estate
15    transaction and set out the nature of the new relationship
16    to the customers or clients and the broker's duties under
17    this chapter.
    
18    10-6A-5.
    
19    (a) A broker engaged by a seller shall:
    
20      (1) Perform the terms of the brokerage engagement made
21      with the seller;
    
22      (2) Promote the interests of the seller by:
    
23        (A) Seeking a sale at the price and terms stated in
24        the brokerage engagement or at a price and terms
25        acceptable to the seller; provided, however, the
26        broker shall not be obligated to seek additional
27        offers to purchase the property while the property is
28        subject to a contract of sale, unless the brokerage
29        engagement so provides;
    
30        (B) Timely presenting all offers to and from the
31        seller, even when the property is subject to a
32        contract of sale;
    
33        (C) Disclosing to the seller material facts which the
34        broker has actual knowledge concerning the
35        transaction;
    
36        (D) Advising the seller to obtain expert advice as to
37        material matters which are beyond the expertise of the
38        broker; and
    
39        (E) Timely accounting for all money and property
40        received in which the seller has or may have an
41        interest;
    
42                               S. B. 425
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 1      (3) Exercise reasonable skill and care in performing the
 2      duties set forth in this subsection and such other
 3      duties, if any, as may be agreed to by the parties in
 4      the brokerage engagement; and
    
 5      (4) Comply with all requirements of this chapter and all
 6      applicable statutes and regulations, including but not
 7      limited to fair housing and civil rights statutes.; and
    
 8      (5) Keep confidential all information received by the
 9      broker during the course of the engagement which is made
10      confidential by an express request or instruction from
11      the seller unless the seller permits such disclosure by
12      subsequent word or conduct, or such disclosure is
13      required by law; provided, however, that disclosures
14      between a broker and any of the broker's affiliated
15      licensees assisting the broker in representing the
16      seller shall not be deemed to breach the duty of
17      confidentiality described above.
    
18    (b) Brokers shall treat all prospective buyers honestly
19    and shall not knowingly give them false information. A
20    broker engaged by a seller shall timely disclose the
21    following to prospective buyers all parties with whom the
22    broker is working:
    
23      (1) all material All adverse material facts pertaining
24      to the physical condition of the property and
25      improvements located on such property including but not
26      limited to material defects in the property,
27      environmental contamination, and facts required by
28      statute or regulation to be disclosed which are actually
29      known by the broker which could not be discovered by a
30      reasonably diligent inspection of the property by the
31      buyer. A; and
    
32      (2) All material facts pertaining to existing adverse
33      physical conditions in the immediate neighborhood within
34      one mile of the property which are actually known to the
35      broker and which could not be discovered by the buyer
36      upon a diligent inspection of the neighborhood or
37      through the review of reasonably available governmental
38      regulations, documents, records, maps, and statistics.
39      Examples of reasonably available governmental
40      regulations, documents, records, maps, and statistics
41      shall include without limitation: land use maps and
42      plans; zoning ordinances; recorded plats and surveys;
43      transportation maps and plans; maps of flood plains; tax
    
    
44                               S. B. 425
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 1      maps; school district boundary maps; and maps showing
 2      the boundary lines of governmental jurisdictions.
 3      Nothing in this subsection shall be deemed to create any
 4      duty on the part of a broker to discover or seek to
 5      discover either adverse material facts pertaining to the
 6      physical condition of the property or existing adverse
 7      conditions in the immediate neighborhood. Brokers shall
 8      not knowingly give prospective buyers false information;
 9      provided, however, that a broker shall not be liable to
10      a buyer for providing false information to the buyer if
11      the false information was provided to the broker by the
12      broker's seller-client and the broker did not have
13      actual knowledge that the information was false and
14      discloses to the buyer the source of the information.
15      Nothing in this subsection shall limit any obligation of
16      a seller under any applicable law to disclose to
17      prospective buyers all material adverse material facts
18      actually known by the seller pertaining to the physical
19      condition of the property nor shall it limit the
20      obligation of prospective buyers to inspect and to
21      familiarize themselves with potentially adverse
22      conditions related to the physical condition of the
23      property, any improvements located on the property, and
24      the neighborhood in which the property is located.  No
25      cause of action shall arise on behalf of any person
26      against a broker for revealing information in compliance
27      with this subsection. No broker shall be liable for
28      failure to disclose any matter other than those matters
29      enumerated in this subsection.  Violations of this
30      subsection shall not create liability on the part of the
31      broker absent a finding of fraud on the part of the
32      broker.
    
33    (c) A broker engaged by a seller in a real estate
34    transaction may provide assistance to the buyer by
35    performing such ministerial acts as preparing offers and
36    conveying them to the seller; locating lenders,
37    inspectors, attorneys, insurance agents, surveyors,
38    schools, shopping facilities, places of worship, and all
39    such other like or similar services of the type described
40    in Georgia Code Section 10-6A-14; and performing such ministerial
41    acts shall not be construed in such a manner as to violate
42    the broker's brokerage engagement with the seller nor
43    shall performing such ministerial acts for the buyer be
44    construed in such a manner as to form a brokerage
45    engagement with the buyer.
    
    
46                               S. B. 425
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 1    (d) A broker engaged by a seller does not breach any duty
 2    or obligation by showing alternative properties to
 3    prospective buyers.
    
 4    10-6A-6.
    
 5    (a) A broker engaged by a landlord shall:
    
 6      (1) Perform the terms of the brokerage engagement made
 7      with the landlord;
    
 8      (2) Promote the interests of the landlord by:
    
 9        (A) Seeking a tenant at the price and terms stated in
10        the brokerage engagement or at a price and terms
11        acceptable to the landlord; provided, however, the
12        broker shall not be obligated to seek additional
13        offers to lease the property while the property is
14        subject to a lease, or letter of intent to lease,
15        unless the brokerage engagement so provides;
    
16        (B) Timely presenting all offers to and from the
17        landlord, even when the property is subject to a lease
18        or a letter of intent to lease;
    
19        (C) Disclosing to the landlord adverse material facts
20        of which the broker has actual knowledge concerning
21        the transaction;
    
22        (D) Advising the landlord to obtain expert advice as
23        to material matters which are beyond the expertise of
24        the broker; and
    
25        (E) Timely accounting for all money and property
26        received in which the landlord has or may have an
27        interest;
    
28      (3) Exercise reasonable ordinary skill and care in
29      performing the duties set forth in this subsection and
30      such other duties as may be agreed to by the parties in
31      the brokerage agreement; and
    
32      (4) Comply with all requirements of this chapter and all
33      applicable statutes and regulations, including but not
34      limited to fair housing and civil rights statutes.; and
    
35      (5) Keep confidential all information received by the
36      broker during the course of the engagement which is made
37      confidential by an express request or instruction from
38      the landlord unless the landlord permits such disclosure
39      by subsequent word or conduct, or such disclosure is
40      required by law; provided, however, that disclosures
    
41                               S. B. 425
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 1      between a broker and any of the broker's affiliated
 2      licensees assisting the broker in representing the
 3      seller shall not be deemed to breach the duty of
 4      confidentiality described above.
    
 5    (b) Brokers shall treat all prospective tenants honestly
 6    and shall not knowingly give them false information. A
 7    broker engaged by a landlord shall timely disclose to
 8    prospective tenants with whom the broker is working:
    
 9      (1) all material All adverse material facts pertaining
10      to the physical condition of the property and
11      improvements located on the property including, but not
12      limited to, material defects in the property,
13      environmental contamination, and facts required by
14      statute or regulation to be disclosed which are actually
15      known by the broker which could not be discovered by a
16      reasonably diligent inspection of the property by the
17      tenant. A; and
    
18      (2) All material facts pertaining to existing adverse
19      physical conditions in the immediate neighborhood within
20      one mile of the property which are actually known to the
21      broker and which could not be discovered by the tenant
22      upon a diligent inspection of the neighborhood or
23      through the review of reasonably available governmental
24      regulations, documents, records, maps, and statistics.
25      Examples of reasonably available governmental
26      regulations, documents, records, maps, and statistics
27      shall include without limitation:  land use maps and
28      plans; zoning ordinances; recorded plats and surveys;
29      transportation maps and plans; maps of flood plains; tax
30      maps; school district boundary maps; and maps showing
31      the boundary lines of governmental jurisdictions.
32      Nothing in this subsection shall be deemed to create any
33      duty on the part of a broker to discover or seek to
34      discover either adverse material facts pertaining to the
35      physical condition of the property or existing adverse
36      conditions in the immediate neighborhood.  Brokers shall
37      not knowingly give prospective tenants false
38      information; provided, however, that a broker shall not
39      be liable to a tenant for providing false information to
40      the tenant if the false information was provided to the
41      broker by the broker's landlord-client and the broker
42      did not have actual knowledge that the information was
43      false and discloses to the tenant the source of the
44      information. Nothing in this subsection shall limit any
    
    
45                               S. B. 425
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 1      obligation of the landlord under any applicable law to
 2      disclose to prospective tenants all material adverse
 3      material facts actually known by the landlord pertaining
 4      to the physical condition of the property nor shall it
 5      limit the obligation of prospective tenants to inspect
 6      and to familiarize themselves with potentially adverse
 7      conditions in the physical condition of the property,
 8      any improvements located on the property, and the
 9      surrounding neighborhood.  No cause of action by any
10      person shall arise on behalf of any person against a
11      broker for revealing information in compliance with this
12      subsection. No broker shall be liable for failure to
13      disclose any matter other than those matters enumerated
14      in this subsection.  Violations of this subsection shall
15      not create liability on the part of the broker absent a
16      finding of fraud on the part of the broker.
    
17    (c) A broker engaged by a landlord in a real estate
18    transaction may provide assistance to the tenant by
19    performing such ministerial acts as preparing offers and
20    conveying them to the landlord; locating inspectors,
21    attorneys, insurance agents, schools, shopping facilities,
22    places of worship, and all such other like or similar
23    services of the type described in Georgia Code Section 10-6A-14;
24    and performing such ministerial acts shall not be
25    construed in such a manner as to violate the broker's
26    brokerage engagement with the landlord nor shall
27    performing such ministerial acts for the tenant be
28    construed in such a manner as to form a brokerage
29    engagement with the tenant.
    
30    (d) A broker engaged by a landlord does not breach any
31    duty or obligation by showing alternative properties to
32    prospective tenants.
    
33    10-6A-7.
    
34    (a) A broker engaged by a buyer shall:
    
35      (1) Perform the terms of the brokerage engagement made
36      with the buyer;
    
37      (2) Promote the interests of the buyer by:
    
38        (A) Seeking a property at a price and terms acceptable
39        to the buyer; provided, however, the broker shall not
40        be obligated to seek other properties for the buyer
41        while the buyer is a party to a contract to purchase
42        property, unless the brokerage engagement so provides;
    
    
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 1        (B) Timely presenting all offers to and from the
 2        buyer, even when the buyer is a party to a contract to
 3        purchase property;
    
 4        (C) Disclosing to the buyer adverse material facts of
 5        which the broker has actual knowledge concerning the
 6        transaction;
    
 7        (D) Advising the buyer to obtain expert advice as to
 8        material matters which are beyond the expertise of the
 9        broker; and
    
10        (E) Timely accounting for all money and property
11        received in which the buyer has or may have an
12        interest;
    
13      (3) Exercise reasonable ordinary skill and care in
14      performing the duties set forth in this subsection and
15      such other duties as may be agreed to by the parties;
16      and
    
17      (4) Comply with all requirements of this chapter and all
18      applicable statutes and regulations, including but not
19      limited to fair housing and civil rights statutes.; and
    
20      (5) Keep confidential all information received by the
21      broker during the course of the engagement which is made
22      confidential by an express request or instruction from
23      the buyer unless the buyer permits such disclosure by
24      subsequent word or conduct, or such disclosure is
25      required by law; provided, however, that disclosures
26      between a broker and any of the broker's affiliated
27      licensees assisting the broker in representing the buyer
28      shall not be deemed to breach the duty of
29      confidentiality described above.
    
30    (b) Brokers shall treat all prospective sellers honestly
31    and shall not knowingly give them false information. A
32    broker engaged by a buyer shall timely disclose to a
33    prospective seller with whom the broker is working as a
34    customer and who is selling property which will be
35    financed either by a loan assumption or by the seller's
36    providing a part or all of the financing all material
37    adverse facts actually known by the broker concerning the
38    buyer's financial ability to perform the terms of the sale
39    and, in the case of a residential transaction, the buyer's
40    intent to occupy the property as a principal residence.  A
41    broker Brokers shall not knowingly give prospective
42    sellers false information; provided, however, that a
    
    
43                               S. B. 425
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 1    broker shall not be liable to a seller for providing false
 2    information to the seller if the false information was
 3    provided to the broker by the broker's buyer-client and
 4    the broker did not have actual knowledge that the
 5    information was false and discloses to the seller the
 6    source of the information.  Nothing in this subsection
 7    shall limit the obligation of the prospective buyer under
 8    any applicable law to disclose to the prospective seller
 9    all material adverse material facts actually known by the
10    buyer concerning the buyer's financial ability to perform
11    the terms of the sale and, in the case of a residential
12    transaction, the buyer's intent to occupy the property as
13    a principal residence.  No cause of action shall arise on
14    behalf of any person against a broker for revealing
15    information in compliance with this subsection.
16    Violations of this subsection shall not create liability
17    on the part of the broker absent a finding of fraud on the
18    part of the broker.
    
19    (c) A broker engaged by a buyer in a real estate
20    transaction may provide assistance to the seller by
21    performing such ministerial acts as preparing and
22    conveying offers to the buyer; locating inspectors,
23    attorneys, surveyors, and all such other like or similar
24    services of the type described in Georgia Code Section 10-6A-14;
25    and performing such ministerial acts shall not be
26    construed in such a manner as to violate the broker's
27    brokerage engagement with the buyer nor shall performing
28    such ministerial acts for the seller be construed in such
29    a manner as to form a brokerage engagement with the
30    seller.
    
31    (d) A broker engaged by a buyer does not breach any duty
32    or obligation by showing properties in which the buyer is
33    interested to other prospective buyers.
    
34    10-6A-8.
    
35    (a) A broker engaged by a tenant shall:
    
36      (1) Perform the terms of the brokerage engagement made
37      with the tenant;
    
38      (2) Promote the interests of the tenant by:
    
39        (A) Seeking a property to lease at a price and terms
40        acceptable to the tenant; provided, however, the
41        broker shall not be obligated to seek other properties
42        for the tenant while the tenant is a party to a lease
    
    
43                               S. B. 425
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 1        or a letter of intent to lease unless the brokerage
 2        engagement so provides;
    
 3        (B) Timely presenting all offers to and from the
 4        tenant, even when the tenant is a party to a lease or
 5        a letter of intent to lease;
    
 6        (C) Disclosing to the tenant adverse material facts of
 7        which the broker has actual knowledge concerning the
 8        transaction;
    
 9        (D) Advising the tenant to obtain expert advice as to
10        material matters which are beyond the expertise of the
11        broker; and
    
12        (E) Timely accounting for all money and property
13        received in which the tenant has or may have an
14        interest;
    
15      (3) Exercise reasonable ordinary skill and care in
16      performing the duties set forth in this subsection and
17      such other duties as may be agreed to by the parties;
18      and
    
19      (4) Comply with all requirements of this chapter and all
20      applicable statutes and regulations, including but not
21      limited to fair housing and civil rights statutes.; and
    
22      (5) Keep confidential all information received by the
23      broker during the course of the engagement which is made
24      confidential by an express request or instruction from
25      the tenant unless the tenant permits such disclosure by
26      subsequent word or conduct, or such disclosure is
27      required by law; provided, however, that disclosures
28      between a broker and any of the broker's affiliated
29      licensees assisting the broker in representing the
30      seller shall not be deemed to breach the duty of
31      confidentiality described above.
    
32    (b) Brokers shall treat all prospective landlords honestly
33    and shall not knowingly give them false information. A
34    broker engaged by a tenant shall timely disclose to a
35    prospective landlord with whom the broker is working all
36    material adverse material facts actually known by the
37    broker concerning the tenant's financial ability to
38    perform the terms of the lease or letter of intent to
39    lease or intent to occupy the property.  A Brokers shall
40    not knowingly give prospective landlords false
41    information; provided, however, that a broker shall not be
42    liable to a landlord for providing false information to
    
43                               S. B. 425
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 1    the landlord if the false information was provided to the
 2    broker by the broker's tenant-client and the broker did
 3    not have actual knowledge that the information was false
 4    and the broker discloses to the landlord the source of the
 5    information.  Nothing in this subsection shall limit any
 6    obligation of the prospective tenant under any applicable
 7    law to disclose to a prospective landlord all material
 8    adverse material facts actually known by the tenant
 9    concerning the tenant's financial ability to perform the
10    terms of the lease or letter of intent to lease or intent
11    to occupy the property.  No cause of action shall arise on
12    behalf of any person against a broker for revealing
13    information in compliance with this subsection. No broker
14    shall be liable for failure to disclose any matter other
15    than those matters enumerated in this subsection.
16    Violations of this subsection shall not create liability
17    on the part of the broker absent a finding of fraud on the
18    part of the broker.
    
19    (c) A broker engaged by a tenant in a real estate
20    transaction may provide assistance to the landlord by
21    performing such ministerial acts as preparing and
22    conveying offers to the tenant; locating draftsmen or
23    architects, attorneys, surveyors, and all such other like
24    or similar services; of the type described in Georgia Code Section
25    10-6A-14; and performing such ministerial acts shall not
26    be construed in such a manner as to violate the broker's
27    brokerage engagement with the tenant nor shall performing
28    such ministerial acts for the landlord be construed in
29    such a manner as to form a brokerage engagement with the
30    landlord.
    
31    (d) A broker engaged by a tenant does not breach any duty
32    or obligation by showing properties in which the tenant is
33    interested to other prospective tenants.
    
34    10-6A-9.
    
35    (a) The relationships set forth in Code Sections 10-6A-4
36    through 10-6A-8 and Code Sections 10-6A-12 and 10-6A-13
37    shall commence at the time that the client engages the
38    broker, and shall continue until:
    
39      (1) Completion of performance of the engagement; or
    
40      (2) If paragraph (1) of this subsection is not
41      applicable, then the earlier of:
    
    
    
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 1        (A) Any date of expiration agreed upon by the parties
 2        in the brokerage agreement engagement or in any
 3        amendments thereto;
    
 4        (B) Any authorized termination of the relationship; or
    
 5        (C) If no expiration is provided and no termination
 6        has occurred, then one year after initiation of the
 7        engagement.
    
 8    (b) Except as otherwise agreed in writing and as provided
 9    in subsection (a) of this Code section, a broker owes no
10    further duties to the client after termination,
11    withdrawal, expiration, or completion of performance of
12    the engagement, except:
    
13      (1) To account for all moneys and property relating to
14      the engagement; and
    
15      (2) To keep confidential all information received during
16      the course of the engagement which was made confidential
17      by request or instructions from the client, unless:
    
18        (A) The client permits the disclosure by subsequent
19        word or conduct;
    
20        (B) Such disclosure is required by law; or
    
21        (C) The information becomes public from a source other
22        than the broker.
    
23    (c) Notwithstanding any other provision to the contrary
24    contained in this chapter, in the event a conflict arises
25    between a broker's duty to keep the confidence of a client
26    and the duty not to give customers false information, the
27    broker's duty not to give false information to customers
28    shall prevail and shall govern the broker's actions.  No
29    cause of action shall arise on behalf of any person
30    against a broker or the broker's affiliated licensees for
31    revealing information in compliance with this subsection.
    
32    10-6A-10.
    
33    (a) Prior to entering into any of the brokerage engagement
34    relationships enumerated in Code Sections 10-6A-4 through
35    10-6A-8, a broker shall All brokerage engagements must:
    
36      (1) Advise the prospective client of the types of
37      brokerage agency relationships available through the
38      broker;
    
    
    
39                               S. B. 425
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 1      (2) Advise such prospective client of any other
 2      brokerage relationships held by such broker with other
 3      parties which would conflict with any interests of the
 4      prospective client actually known to the broker but
 5      excluding the fact that the broker may be representing
 6      other sellers and landlords in selling or leasing
 7      property or that the broker may be representing other
 8      buyers and tenants in buying or leasing other property;
 9      and
    
10      (3) Advise such prospective client as to the broker's
11      compensation and whether the broker will share such
12      compensation with other brokers who may represent other
13      parties to the transaction in an agency capacity; and
    
14      (4) Advise the prospective client of the broker's
15      obligations to keep information confidential under this
16      chapter.
    
17    (b) An offer of cooperation with another broker or to
18    compensate another broker shall not be made to other
19    brokers without timely disclosure to the party engaging
20    the broker.
    
21    10-6A-11.
    
22    The payment or promise of payment of compensation to a
23    broker does by a seller, landlord, buyer, or tenant shall
24    not determine whether a brokerage engagement relationship
25    has been created between any broker and a seller,
26    landlord, buyer, or tenant.
    
27    10-6A-12.
    
28    (a) A broker may act as a dual agent only with the written
29    consent of all clients.  Such written consent shall be
30    presumed to have been given and to be informed as against
31    any client who signs a writing or writings which contains
32    contain the following:
    
33      (1) A description of the transactions or types of
34      transactions in which the broker will serve as a dual
35      agent;
    
36      (2) A statement that, in serving as a dual agent, the
37      broker represents two clients whose interests are or at
38      times could be different or even adverse;
    
39      (3) A statement that a dual agent may not will disclose
40      to any client all adverse material facts relevant to the
41      transaction and actually known to the dual agent to all
    
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 1      parties in the transaction except for information made
 2      confidential by request or instructions from another
 3      client, except information which is not allowed to be
 4      disclosed by this Code section or required to be
 5      disclosed by this Code section or required to be
 6      disclosed by this chapter;
    
 7      (4) A statement that the broker or the broker's
 8      affiliated licensees have no material relationship with
 9      either client other than that incidental to the
10      transactions, or if the broker or the broker's
11      affiliated licensees have such a relationship, a
12      disclosure of the nature of such a relationship will
13      timely disclose to each client in a real estate
14      transaction the nature of any material relationship the
15      broker and the broker's affiliated licensees have with
16      the other clients in the transaction other than that
17      incidental to the transaction.  For the purposes of this
18      Code section, a material relationship shall mean any
19      actually known personal, familial, or business
20      relationship between the broker or the broker's
21      affiliated licensees and a client which would impair the
22      ability of the broker or affiliated licensees to
23      exercise fair and independent judgment relative to
24      another client;
    
25      (5) A statement that the client does not have to consent
26      to the dual agency; and
    
27      (6) A statement that the consent of the client has been
28      given voluntarily and that the engagement has been read
29      and understood.
    
30    (b) Upon the client signing a written consent meeting the
31    requirements of this Code section, the consent of the
32    client to dual agency shall conclusively be deemed to have
33    been given and informed.
    
34    (c) No cause of action shall arise on behalf of any person
35    against a dual agent for making disclosures allowed or
36    required by this chapter and the dual agent does not
37    terminate any agency by making such allowed or required
38    disclosures.
    
39    (c) A broker may assign different licensees affiliated
40    with the broker to represent exclusively different clients
41    in the same transaction. The licensees may not disclose,
42    except to the licensee's broker, information made
43    confidential by request or instructions of the client the
    
44                               S. B. 425
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 1    licensee is representing, except information allowed to be
 2    disclosed by this Code section or required to be disclosed
 3    by this chapter.
    
 4    (d) In the case of dual agency, each client and broker and
 5    their respective licensees possess only actual knowledge
 6    and information.  There shall be no imputation of
 7    knowledge or information among or between the clients,
 8    brokers, or their affiliated licensees.
    
 9    (e) In any transactions transaction, a broker may without
10    liability withdraw from representing a client who has not
11    consented to a disclosed dual agency at any time prior to
12    the existence of the dual agency.  Such withdrawal shall
13    not prejudice the ability of the broker to continue to
14    represent the other client in the transaction, nor limit
15    the broker from representing the client in other
16    transactions not involving a dual agency.  When such
17    withdrawal as contemplated in this subsection occurs, the
18    broker shall not may receive a referral fee for referring
19    a client to a broker employed by a different real estate
20    brokerage firm.
    
21    (f) Every broker shall develop and enforce an office
22    brokerage relationship policy among affiliated licensees
23    which either specifically permits or rejects the practice
24    of disclosed dual agency, which office brokerage
25    relationship policy shall be disclosed pursuant to Code
26    Section 10-6A-10 and paragraph (1) of subsection (a) of
27    this Code section.
    
28    10-6A-13.
    
29    (a) A broker may assign directly or through the adoption
30    of a company policy different licensees affiliated with
31    the broker as designated agents to exclusively represent
32    different clients in the same transaction.  In addition,
33    the broker may delegate such assignment responsibility to
34    other management level personnel acting under a company
35    policy.  Any company policy adopted to fulfill the
36    requirements of this subsection shall contain provisions
37    reasonably calculated to ensure each client is represented
38    in accordance with the requirements of this chapter.  A
39    designated agent of a seller, landlord, buyer, or tenant
40    shall owe his or her client the duties set forth in Code
41    Section 10-6A-5, 10-6A-6, 10-6A-7, or 10-6A-8 of this
42    chapter, respectively.
    
    
    
43                               S. B. 425
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 1    (b) If a broker appoints different designated agents in
 2    accordance with subsection (a) of this Code section,
 3    neither the broker, the broker's licensees, nor the real
 4    estate brokerage firm shall be deemed to be dual agents.
    
 5    (c) When designated agents are appointed in accordance
 6    with subsection (a) of this Code section, the broker, the
 7    clients, and the designated agents shall be considered to
 8    possess only actual knowledge and information; there shall
 9    be no imputation of knowledge or information between and
10    among the broker, the designated agents, and the clients.
11    Designated agents shall not disclose, except to the
12    designated agent's broker, information made confidential
13    by request or instruction of the client whom the
14    designated agent is representing, except information
15    allowed to be disclosed by this Code section or required
16    to be disclosed by this chapter.  Unless required to be
17    disclosed by law, the broker of a designated agent shall
18    not reveal confidential information it receives from
19    either the designated agent or the client with whom the
20    designated agent is working.  For the purposes of this
21    Code section, confidential information shall be deemed to
22    be any information the disclosure of which has not been
23    consented to by the client that could harm the negotiating
24    position of the client.
    
25    (d) The designation of one or more of a broker's
26    affiliated licensees as designated agents shall not permit
27    the disclosure by the broker or any of the broker's
28    affiliated licensees of any information made confidential
29    by an express request or instruction by a party prior to
30    the creation of the designated agency.  The broker and the
31    broker's affiliated licensees shall continue to maintain
32    such confidential information unless the party from whom
33    the confidential information was obtained permits such
34    disclosure by subsequent word or conduct, or such
35    disclosure is required by law.  No liability shall be
36    created as a result of a broker and the broker's
37    affiliated licensee's compliance with this subsection.
    
38    10-6A-14.
    
39    (a) A broker acting as a transaction broker may provide
40    assistance to buyers, sellers, tenants, and landlords by
41    performing ministerial acts.  Examples of ministerial acts
42    which can be performed by the transaction broker on behalf
43    of any of the parties in a real estate transaction include
44    without limitation the following:
    
45                               S. B. 425
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 1      (1) Identifying property for sale, lease, or exchange;
    
 2      (2) Providing real estate statistics and information on
 3      property;
    
 4      (3) Providing pre-printed real estate form contracts,
 5      leases, and related exhibits and addenda;
    
 6      (4) Acting as a scribe in the preparation of real estate
 7      form contracts, leases, and related exhibits and
 8      addenda;
    
 9      (5) Locating architects, engineers, surveyors,
10      inspectors, lenders, insurance agents, attorneys, and
11      other professionals; and
    
12      (6) Identifying schools, shopping facilities, places of
13      worship, and other similar facilities on behalf of any
14      of the parties in a real estate transaction.
    
15    (b) A broker acting as a transaction broker shall do the
16    following:
    
17      (1) Timely present all offers to and from the parties
18      involving the sale, lease, and exchange of property;
    
19      (2) Timely account for all money and property received
20      by the broker on behalf of a party in a real estate
21      transaction;
    
22      (3) Timely disclose the following to all buyers and
23      tenants with whom the broker is working:
    
24        (A) All adverse material facts pertaining to the
25        physical condition of the property and improvements
26        located thereon including but not limited to material
27        defects in the property, environmental contamination,
28        and facts required by statute or regulation to be
29        disclosed which are actually known by the broker which
30        could not be discovered by a reasonably diligent
31        inspection of the property by the buyer; and
    
32        (B) All material facts pertaining to existing adverse
33        physical conditions in the immediate neighborhood
34        within one mile of the property which are actually
35        known to the broker and which could not be discovered
36        by the buyer upon a diligent inspection of the
37        neighborhood or through the review of reasonably
38        available governmental regulations, documents,
39        records, maps, and statistics.  Examples of reasonably
40        available governmental regulations, documents,
    
    
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 1        records, maps, and statistics shall include without
 2        limitation: land use maps and plans; zoning
 3        ordinances; recorded plats and surveys; transportation
 4        maps and plans; maps of flood plains; crime
 5        statistics; tax maps; school district boundary maps;
 6        and maps showing the boundary lines of governmental
 7        jurisdictions.
    
 8    (c) Transaction brokers shall not knowingly give any party
 9    in a real estate transaction false information; provided,
10    however, that a broker shall not be liable to a party for
11    providing false information to the party if broker did not
12    have actual knowledge that the information was false and
13    discloses to the party the source of the information.
14    Nothing in this subsection shall limit any obligation of a
15    seller under any applicable law to disclose to prospective
16    buyers all adverse material facts actually known by the
17    seller pertaining to the physical condition of the
18    property nor shall it limit the obligation of prospective
19    buyers to inspect and to familiarize themselves with
20    potentially adverse conditions related to the physical
21    condition of the property, any improvements located
22    thereon, and the neighborhood in which the property is
23    located.  No cause of action shall arise on behalf of any
24    person against a broker for revealing information in
25    compliance with this subsection.  No broker shall be
26    liable for failure to disclose any matter other than those
27    matters enumerated in this subsection. Violations of this
28    subsection shall not create liability on the part of the
29    broker absent a finding of fraud on the part of the
30    broker.
    
31    10-6A-13. 10-6A-15.
    
32    Except as may be provided in a written agreement between
33    the parties, a broker shall not be deemed to have an
34    agency relationship with a common source information
35    company.  No broker shall be deemed to be a subagent of
36    any client of another broker solely by reason of
37    membership or other affiliation by such brokers in a
38    common source information company, including but not
39    limited to multiple listing services.
    
40    10-6A-14. 10-6A-16.
    
41    Nothing contained in this chapter shall limit the Georgia
42    Real Estate Commission in its regulation of brokers and
43    the broker's affiliated licensees pursuant to Chapter 40
    
    
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 1    of Title 43 and the substantive rules and regulations
 2    adopted by the commission pursuant thereto."
    
 3                           SECTION 2.
    
 4  All laws and parts of laws in conflict with this Act are
 5  repealed.
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
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