1. Connecticut Real Estate Agent Fiduciary Duties Review and Law Update Connecticut Real Estate Licensee Mandatory Continuing Education Course 2010-2012 CE Cycle

2. Instructor Version 01/28/2011 CT 2010-2012 CE2 2 The course was developed by the Center for Real Estate and Urban Economic Studies University of Connecticut at the request of the Connecticut Real Estate Commission Special thanks to the following individuals for their contributions: Katherine Pancak, Professor, University of Connecticut Marilyn Keating, Vice-Chair, Connecticut Real Estate Commission Lana Ogrodnik, Commissioner, Connecticut Real Estate Commission Linda Dick, Gateway Community College Michele Erling, CT Department of Consumer Protection Kelly Harvey, CT Department of Consumer Protection Terry Hastings, HamiltonLadd Home Loans Judith Johannsen, Esq., Connecticut Association of Realtors, Inc. ® John Morgan, Morgan Testing Services Laureen Rubino, Real Estate Consultant

3. Instructor Version 01/28/2011 CT 2010-2012 CE3 3 Course Goals Understand the difference between a client and a customer. Identify common law and state licensing law FIDUCIARY DUTIES owed to clients. Discuss facts and outcomes of actual cases related to real estate agent fiduciary duties. Talk about current topics in practice that agents seem confused about. Learn about recent legislation related to real estate practice.

4. Instructor Version 01/28/2011 CT 2010-2012 CE4 4 Licensee Relationships Real estate licensee can work with a real estate consumer in one of two ways: 1.Client – agency relationship –signed agency agreement with your brokerage firm –fiduciary duties owed 2.Customer – no agency relationship –either another brokerage firm represents consumer or consumer is unrepresented –no fiduciary duties owed

5. Instructor Version 01/28/2011 CT 2010-2012 CE5 5 Whos Your Client? Firms designated broker enters into agency relationship with client –written representation agreement All salespeople and brokers sponsored by or affiliated with firm represent client –only exception – a salesperson who is a designated agent Agency relationships do not run along in- house team lines

6. Instructor Version 01/28/2011 CT 2010-2012 CE6 6 Duties to Clients Common Law –judge-made law State Licensing Law and Regulations –state legislature and commission made law –Connecticut General Statutes Chapter 392 –Connecticut administrative regulations

7. Instructor Version 01/28/2011 CT 2010-2012 CE7 7 FIDUCIARY DUTIES Confidentiality Obedience Accounting Loyalty –includes using reasonable care and due diligence Disclosure

8. Instructor Version 01/28/2011 CT 2010-2012 CE8 8 Confidentiality Common Law: –Agent must keep clients personal and financial information confidential. State Licensing Law: –Agent cannot reveal confidential information about client. during or after agency relationship also cannot use confidential information to that persons disadvantage

9. Instructor Version 01/28/2011 CT 2010-2012 CE9 9 Confidentiality? You be the judge! Confidentiality Case Study 1 –First Agent enters into a listing with sellers and learns that the property is being sold because sellers are getting divorced. Listing expires. Sellers relist property with another firm. First Agent shows house to buyer client. Can First Agent disclose information about divorce?

10. Instructor Version 01/28/2011 CT 2010-2012 CE10CT 2010-2012 CE10 Confidentiality? You be the judge! Confidentiality Case Study 2 –First Agent enters into listing with sellers. Learns about foundation cracks in sellers property. Listing expires. Sellers paint over cracks and relist house with another firm. First Agent shows house to buyer client. Can First Agent share information about cracks?

11. Instructor Version 01/28/2011 CT 2010-2012 CE11CT 2010-2012 CE11 Confidentiality? You be the judge! Time for Group Discussion

12. Instructor Version 01/28/2011 CT 2010-2012 CE12CT 2010-2012 CE12 Confidentiality? You be the judge! Confidentiality Case Study 1: RESULT –Agent cannot disclose confidential information. –Confidential information is facts concerning a persons assets, liabilities, income, expenses, motivations to purchase, rent or sell real property, and previous offers received or made to purchase or lease real property –Not confidential: information authorized to be disclosed by the client, that is a matter of general knowledge, or that is in the public record.

13. Instructor Version 01/28/2011 CT 2010-2012 CE13CT 2010-2012 CE13 Confidentiality? You be the judge! Confidentiality Case Study 2: RESULT –Agent must disclose information about the condition of the former clients property. –Property condition is not confidential information. –Agent has a duty to both client and customer to disclose property conditions.

14. Instructor Version 01/28/2011 CT 2010-2012 CE14CT 2010-2012 CE14 Obedience Common Law: –Agent must obey clients instructions. as long as instructions are legal and ethical

15. Instructor Version 01/28/2011 CT 2010-2012 CE15CT 2010-2012 CE15 Obedience? You be the judge! Obedience Case Study 1 –Buyer client asked for a home inspection, and agent said he would take care of it. Agent failed to have an inspection done. After closing buyer client found serious defects and sued agent. What result?

16. Instructor Version 01/28/2011 CT 2010-2012 CE16CT 2010-2012 CE16 Obedience? You be the judge! Obedience Case Study 2 –Buyer client asked agent for information about the ethnic make-up of a neighborhood, insisting that they could not live in a neighborhood where people had ethnic backgrounds that would make them potential terrorists. Agent failed to investigate the neighborhoods ethnic background. After closing buyer client found that the house they bought was located in a middle-eastern neighborhood. What result?

17. Instructor Version 01/28/2011 CT 2010-2012 CE17CT 2010-2012 CE17 Obedience? You be the judge! Time for Group Discussion

18. Instructor Version 01/28/2011 CT 2010-2012 CE18 Obedience? You be the judge! Obedience Case Study 1: RESULT –Agents failure to obtain the inspection was a breach of fiduciary duty. –Buyer client awarded over $60,000 in damages.

19. Instructor Version 01/28/2011 CT 2010-2012 CE19 Obedience? You be the judge! Obedience Case Study 2: RESULT –Agent would violate fair housing laws if agent obeyed buyer client. –Agent should have informed buyer client that providing information about a protected classification was a violation of fair housing laws, and therefore agent would not be able to follow those instructions.

20. Instructor Version 01/28/2011 CT 2010-2012 CE20CT 2010-2012 CE20 Accounting Common Law: –Agent must account for all money and documents held for client. State Licensing Law: –Agent must account for money belonging to others. –Agent must hold client and customer money in separate escrow account. –Monies must be deposited in escrow account within 3 banking days of contract acceptance.

21. Instructor Version 01/28/2011 CT 2010-2012 CE21CT 2010-2012 CE21 Accounting? You be the judge! Accounting Case Study 1 –Sellers broker held $16,000 escrow deposit that was to be used as liquidated damages if buyer defaulted on contract. Buyer defaulted; parties agreed to split escrow. Broker refused to release escrow until commission was paid. Can broker do that?

22. Instructor Version 01/28/2011 CT 2010-2012 CE22CT 2010-2012 CE22 Accounting? You be the judge! Accounting Case Study 2 – Seller and buyer entered into a rescission agreement, where escrow deposit was to be returned to the buyer. Sellers broker did not deliver check; buyer contacted DCP. DCP required broker to deliver check to DCP office where buyer broker could pick it up. Check was written on sellers brokerage firm general operating account. Check bounces at first, then clears after redeposit. What result?

23. Instructor Version 01/28/2011 CT 2010-2012 CE23CT 2010-2012 CE23 Accounting? You be the judge! Time for Group Discussion

24. Instructor Version 01/28/2011 CT 2010-2012 CE24CT 2010-2012 CE24 Accounting? You be the judge! Accounting Case Study 1: RESULT –Broker cannot refuse to release escrow funds for reason that brokers commission has not been paid. –Real Estate Commission fined broker $2,000 for violation of statutory accounting duty.

25. Instructor Version 01/28/2011 CT 2010-2012 CE25CT 2010-2012 CE25 Accounting? You be the judge! Accounting Case Study 2: RESULT –Broker cannot refuse to release escrow funds. –Real Estate Commission has right to fine broker suspend or revoke brokers license have broker imprisoned for up to six months

26. Instructor Version 01/28/2011 CT 2010-2012 CE26CT 2010-2012 CE26 Loyalty Common Law: –Agent must put clients interests first. –Agent must use reasonable care and due diligence to represent client competently.

27. Instructor Version 01/28/2011 CT 2010-2012 CE27CT 2010-2012 CE27 Loyalty, continued State Licensing Law: –Agent must disclose any interest that agent has in property to client and customer. –Agent (or anyone in agents family) cant buy property listed with that agent without disclosure to seller. –Agent selling own property must disclose ownership interest to buyers. –Agent entering into exclusive representation agreement must make diligent effort to sell, lease, or find a property.

28. Instructor Version 01/28/2011 CT 2010-2012 CE28CT 2010-2012 CE28 Loyalty? You be the judge! Loyalty Case Study 1 –Brother and sister inherit a house. Siblings entered into listing agreement with designated broker in firm. Second broker in firm makes an offer of $115,000; siblings accept. Second broker immediately resells house for $160,000. Is this a problem?

29. Instructor Version 01/28/2011 CT 2010-2012 CE29CT 2010-2012 CE29 Loyalty? You be the judge! Loyalty Case Study 2 –Buyer client sued real estate brokerage firm for failure to disclose that firm represented other buyers bidding on the same property. What result?

30. Instructor Version 01/28/2011 CT 2010-2012 CE30CT 2010-2012 CE30 Loyalty? You be the judge! Loyalty Case Study 3 Agent represented buyer. Agent recommended a home inspector; inspector lacked necessary expertise to perform a home inspection and failed to discover insect infestation. Buyer sued agent for violation of fiduciary duty. What result?

31. Instructor Version 01/28/2011 CT 2010-2012 CE31CT 2010-2012 CE31 Loyalty? You be the judge! Time for Group Discussion

32. Instructor Version 01/28/2011 CT 2010-2012 CE32CT 2010-2012 CE32 Loyalty? You be the judge! Loyalty Case Study 1: RESULT –All licensees working for the brokerage firm must put the firms clients interests first. –Broker and firm had a duty to communicate information about the value of the property and a more advantageous offer. –Broker is liable to seller for money damages. –Broker is precluded from collecting a commission.

33. Instructor Version 01/28/2011 CT 2010-2012 CE33CT 2010-2012 CE33 Loyalty? You be the judge! Loyalty Case Study 2: RESULT –Other state court held firm representation of two buyers bidding on same property was not dual agency. caveat: as long as separate salespersons worked with the different buyers –Buyer/buyer representation in same transaction may be looked at by a court as dual agency.

34. Instructor Version 01/28/2011 CT 2010-2012 CE34CT 2010-2012 CE34 Loyalty? You be the judge! Loyalty Case Study 3: RESULT –Agent would be liable to client for violating fiduciary duty if agent knew that inspector lacked necessary expertise, or agent did not use reasonable care to investigate the background of the inspector before recommending

35. Instructor Version 01/28/2011 CT 2010-2012 CE35CT 2010-2012 CE35 Disclosure Common Law: –Agent must inform client of all information relevant to the transaction. State Licensing Law: –Agent cannot misrepresent or conceal any material facts. However, certain facts are considered legally nonmaterial, including disease, death, and felony.

36. Instructor Version 01/28/2011 CT 2010-2012 CE36CT 2010-2012 CE36 Disclosure? You be the judge! Disclosure Case Study 1 –Agent failed to tell buyer client that seller would take $24,000 less for property. Buyer client complained to state real estate board. What result?

37. Instructor Version 01/28/2011 CT 2010-2012 CE37CT 2010-2012 CE37 Disclosure? You be the judge! Disclosure Case Study 2 –Agent represented buyer. Agent failed to explain to buyer that purchase was subject to short sale bank approval. Buyer expended money in preparation for purchase. Short sale was not approved. Buyer sues agent and files complaint with Real Estate Commission. What result?

38. Instructor Version 01/28/2011 CT 2010-2012 CE38CT 2010-2012 CE38 Disclosure? You be the judge! Disclosure Case Study 3 – Agent represented buyer. Buyer bought property and later found out that the property acreage was incorrectly reported in the listing. Agent did not independently verify the acreage. Buyer sues agent. What result?

39. CT 2010-2012 CE39 Instructor Version 01/28/2011 CT 2010-2012 CE39 Disclosure? You be the judge! Time for Group Discussion

40. Instructor Version 01/28/2011 CT 2010-2012 CE40CT 2010-2012 CE40 Disclosure? You be the judge! Disclosure Case Study 1: RESULT –Agents failure to tell buyer client that a non- client seller would take $24,000 less for property is a breach of fiduciary duty. –Agents license was revoked.

41. Instructor Version 01/28/2011 CT 2010-2012 CE41CT 2010-2012 CE41 Disclosure? You be the judge! Disclosure Case Study 2: RESULT –Agents failure to inform and educate buyer client about short sale was a breach of fiduciary duty. –Agent was fined $1,000.

42. Instructor Version 01/28/2011 CT 2010-2012 CE42CT 2010-2012 CE42 Disclosure? You be the judge! Disclosure Case Study 3: RESULT –Buyer agents fiduciary duty to disclose to buyer client is much more than seller agents duty to disclose to a buyer customer. –Buyer agent may be found liable for failure to investigate property conditions on behalf of buyer.

43. Instructor Version 01/28/2011 CT 2010-2012 CE43CT 2010-2012 CE43 CURRENT TOPICS Broker Price Opinions –Must be licensed appraiser to estimate value of real estate for a fee. –Only exception for real estate licensee. when conducting a market analysis for a client when determining value for prospective client –in pursuit of listing or agency agreement –fee must be credited if agent lists and sells property cant refer to as appraisal –Licensee cant charge fee to lenders for market analysis of property listed with other.

44. Instructor Version 01/28/2011 CT 2010-2012 CE44 Are you illegally conducting market analyses?

45. Instructor Version 01/28/2011 CT 2010-2012 CE45CT 2010-2012 CE45 CURRENT TOPICS Internet Advertising –Must include: licensees name and office address name of affiliated broker all states where licensee is licensed last date when property information updated

46. Instructor Version 01/28/2011 CT 2010-2012 CE46 Are your internet ads in compliance? licensee name, company name, email, phone name

47. Instructor Version 01/28/2011 CT 2010-2012 CE47CT 2010-2012 CE47 Current Topics, continued Legal Entity Licensing –All partnerships, associations, corporations, and LLCs engaging in real estate must be licensed. –51% or more of entity must be owned by one or more licensed brokers.

48. Instructor Version 01/28/2011 CT 2010-2012 CE48CT 2010-2012 CE48 Current Topics, continued Legal Entity Licensing, continued –Each individual officer of a real estate brokerage firm must be licensed as a broker (salespersons not allowed). –Each individual owner of a real estate brokerage firm that actively manages or controls the real estate brokerage business must be licensed as a broker (salespersons not allowed).

49. Instructor Version 01/28/2011 CT 2010-2012 CE49 Is your company (or other legal entity) licensed? www.elicense.ct.gov Lookup a License Generate Roster Download Roster

50. Instructor Version 01/28/2011 CT 2010-2012 CE50CT 2010-2012 CE50 Current Topics, continued Lapsed Licenses –Once license expires individual cannot lawfully engage in real estate. BROKER – March 31 SALESPERSON – May 31 –Broker with expired license cannot collect commission hold licenses of salespersons

51. Instructor Version 01/28/2011 CT 2010-2012 CE51CT 2010-2012 CE51 Current Topics, continued Lapsed Licenses, continued –Do you know the date your license expires? can check status of licenses at https://www.elicense.ct.gov https://www.elicense.ct.gov –There is NO renewal grace period. formerly 30 day period to pay with no fine as of 10/01/2010, will be late fee if even 1 day late –Sanctions: fines jail time

52. Instructor Version 01/28/2011 CT 2010-2012 CE52 Do you renew every year in a timely manner? www.elicense.ct.gov renew online

53. Instructor Version 01/28/2011 CT 2010-2012 CE53CT 2010-2012 CE53 LAW UPDATE Appraisal Management Companies (state, effective 10/01/2010) –Registration required –CT Public Act 10-77 Dodd-Frank Wall Street Reform and Consumer Protection Act (federal) –Appraisal independence requirements regulations to be developed –H.R. 4173

54. Instructor Version 01/28/2011 CT 2010-2012 CE54CT 2010-2012 CE54 Law Update, continued Tenant Foreclosure Protection (state) –60 days after title transfers to vacate –Security deposit returned if known, double deposit plus interest if unknown, greater of 2 months rent of $2,000 –CGS Sections 47a-20e, 47a-20f Tenant Foreclosure Protection (federal) –90 notice to vacate (sunsets 12/31/2012)

55. Instructor Version 01/28/2011 CT 2010-2012 CE55CT 2010-2012 CE55 WRAP-UP Instructor should report and discuss any other current topics or recent real estate brokerage-related Connecticut legislation or court cases. QUESTIONS? COMMENTS?