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.'
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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.
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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. (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 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
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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;
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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
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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 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.
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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
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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
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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 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
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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 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
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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
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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 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;
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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
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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.
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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:
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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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