Businesses and Professions

CHAPTER 5-20.6
Relationships in Residential Real Estate Transactions

SECTION 5-20.6-6

§ 5-20.6-6. Dual facilitator.

(a) A licensee may assist both the buyer client and the seller client or tenant client and landlord client in the same transaction only as a neutral dual facilitator.

(b) The dual facilitator relationship between the licensee and buyer and seller, or between the licensee and tenant client and landlord client, exists solely for the specific transaction between the parties. In the event the transaction is not completed or fails to close, then the dual facilitator remains the designated client representative for the respective buyer and the seller or tenant and landlord in all future, separate transactions where there is no relationship with the other party.

(c) A licensee may be a neutral dual facilitator only after he or she has obtained the informed, written consent of his or her principal broker and all parties involved in the transaction before presenting an offer to a seller client on behalf of a buyer client or to a landlord client on behalf of a tenant client. Such consent shall specifically inform all parties to the transaction of the following:

(1) The dual facilitator is authorized to assist both parties in a transaction but shall be neutral as to any conflicting interests between the parties to the transaction;

(2) A dual facilitator shall owe a duty to protect the confidential information of all parties and a duty to account for funds;

(3) Confidential information obtained by a dual facilitator from either party may not be disclosed except:

(i) If disclosure is expressly authorized;

(ii) If such disclosure is required by law;

(iii) If such disclosure is intended to prevent illegal conduct; or

(iv) If such disclosure is necessary to prosecute a claim against a person represented or to defend a claim against the licensee. The duty to protect confidential information shall continue after the completion of the transaction; and

(4) If a comparative market analysis was prepared for a seller client or a buyer client and a dual facilitation situation subsequently arises, the dual facilitator may only provide the comparative market analysis to the other party with the prior consent of the party for whom it was initially prepared. A dual facilitator shall not be able to prepare a comparative market analysis for either party after a dual facilitation situation arises as it may adversely affect one party's bargaining position relative to the other party.

In the event that either the seller client or buyer client in the case of a sale of property, or the landlord client and the tenant client in the case of a rental of property, does not consent to dual facilitation, then the principal broker or his or her designee, may, with the consent of the party(ies) withholding consent designate another licensee to represent one of the parties as a designated client representative.

In the event that an affiliated licensee is acting as a dual facilitator, the principal broker or his or her designee shall act as a transaction coordinator in the transaction and shall protect the parties' confidential information. In the event that the clients of a principal broker consent to his or her acting as a disclosed dual facilitator, the principal broker may also oversee the transaction as a transaction coordinator.

History of Section.
(P.L. 1989, ch. 141, § 2; P.L. 1990, ch. 425, § 2; P.L. 2007, ch. 344, § 1; P.L. 2007, ch. 403, § 1; P.L. 2013, ch. 27, § 2; P.L. 2013, ch. 38, § 2; P.L. 2014, ch. 528, § 2.)