Chapter 1301:5-6 Management Level Licensees: Dual Agency
(A) A licensee will be found to be a management level licensee under division (K) of section 4735.51 of the Revised Code if both of the following apply:
(1) The licensee has been assigned management duties that involve oversight responsibilities for the brokerage's main office, a branch office, or a division within that brokerage; and,
(2) Those management duties include the supervision of affiliated licensees whose agency duties to their clients may conflict with those of other licensees affiliated with the brokerage.
(B) Unless a licensee meets the requirements of paragraph (A) of this rule, the following are not considered to be management level licensees:
(1) Any licensee who has an ownership interest in the brokerage with which the licensee is affiliated, unless acting in a manner that is calculated to influence or have an effect on a real estate transaction, other than a transaction in which the licensee is a direct participant.
(2) Any licensee who is an officer of the brokerage with which the licensee is affiliated, unless acting in a manner that is calculated to influence or have an effect on a real estate transaction, other than a transaction in which the licensee is a direct participant.
(3) A licensee who voluntarily provides advice and/or assistance to other licensees affiliated with the brokerage but who does not do so as an assigned duty, unless compensated for such advice and/or assistance.
(C) Supervision shall include, but, not be limited to, the general oversight of, or the direction of, activities conducted by other real estate licensees affiliated with the brokerage.
(D) The assignment of supervisory duties to management level licensees does not relieve the brokerage and its brokers from their responsibility to actively oversee and direct the operations of the business conducted on behalf of the brokerage.
(A) A licensee who acts as a host at an open house on behalf of a listing agent will only be considered to be the agent of the seller if one of the following applies:
(1) The licensee was appointed by the listing agent or the brokerage to represent the seller and the seller agreed in writing to that representation;
(2) The licensee assisted in establishing the agency relationship;
(3) The licensee received confidential information from the listing agent; or,
(B) The licensee will not be found to have assisted in establishing an agency relationship as provided in section 4735.53 of the Revised Code as a result of referring a prospective purchaser or seller to another licensee or receiving a referral fee. However, if the licensee making the referral, participates in the real estate transaction which results from the referral and receives a referral fee, the payment of that referral fee must be disclosed to all parties to the transaction. For purposes of this rule, the terms "referral" and "referring" have the same meaning as contained in paragraph (C) of rule 1301:5-5-06 of the Administrative Code.
The written company policy required under section 4735.54 of the Revised Code shall, at a minimum, address the following information and be applicable to all offices of the brokerage:
(A) The types of agency relationships the affiliated licensees of the brokerage may establish including an explanation of each agency relationship authorized and whether any dual agency relationships are permitted;
(B) A current list of positions in the brokerage, if any, which are designated by the brokerage as management level;
(C) The procedure to be followed for an affiliated licensee to be appointed to represent the client of another affiliated licensee, including the procedure for giving prior notification and obtaining approval of the client for this representation;
(D) The type of agency relationship that shall be established and the disclosures that shall be made when licensees are handling real estate transactions involving persons with whom they have a personal, business, or familial relationship;
(E) The type of agency relationship that shall be established and the disclosures that shall be made when licensees are handling real estate transactions involving themselves or any affiliated licensee as a party to the transaction;
(F) The procedures to be followed to ensure that confidential information is not disclosed in violation of the licensee's agency duties. These procedures shall include those steps affiliated licensees are required to follow to protect confidential information from being disclosed to other licensees within the brokerage who are not bound by the agency relationship. This policy must address the following:
(1) Office files;
(2) Computerized records and messages;
(3) Office meetings and discussions;
(4) Facsimile transmissions;
(5) Telephone messages, inter-office messages, and any kind of conversations;
(6) Meetings and conversations with clients ;
(7) Internet websites including social networking sites and blogs.
(G) If the brokerage practices dual agency, the procedures to be followed by a licensee in the event any of the following occurs:
(1) A party to a real estate transaction refuses to consent to dual agency;
(2) A party to a real estate transaction seeks to terminate an agency relationship as the result of an attempt to create a dual agency relationship;
(3) There is a material change to any of the information that was previously disclosed to any party prior to obtaining full consent to the dual agency.
(H) The procedures to be followed by a licensee who wishes to change an agency relationship, to include but not be limited to procedures for securing the written consent of the client(s) to such change; and,
(I) The types of cooperation, and explanation thereof, which are offered other brokerages, including:
(1) Whether the brokerage offers subagency;
(2) Whether the brokerage offers compensation to subagencies and buyer's brokerages;
(3) Whether the brokerage accepts compensation from other brokerages; and,
(4) Whether the types of cooperation are offered on a consistent and equal basis to all brokerages.
(A) Divisions (A)(2) to (A)(4) of section 4735.55 of the Revised Code shall only apply to an agency agreement in which the property identified on the agency agreement falls within the definition of housing accommodation as contained in any municipal, state, or federal fair housing laws and regulations and the disclosures required pursuant to section 4735.56 of the Revised Code.
(B) Unless exempt under paragraph (A) of this rule, the statement regarding blockbusting shall read as follows:
"It is also illegal, for profit, to induce or attempt to induce a person to sell or rent a dwelling by representations regarding the entry into the neighborhood of a person or persons belonging to one of the protected classes."
(A) A broker shall develop a consumer guide to agency relationships that contains the written disclosures required by division (B) of section 4735.56 of the Revised Code.
(B) The consumer guide to agency relationships shall:
(1) Be entitled "Consumer Guide to Agency Relationships". The title font size shall be no less than fourteen points;
(2) Contain the brokerage name and fair housing logo. The brokerage may also include the brokerage logo, a brokerage franchise name or insignia indicating membership in a real estate organization. The name of any salesperson, team advertising name, unlicensed person or entity shall not be included;
(3) Contain the disclosures required pursuant to divisions (A)(2) and (A)(3) of section 4735.55 of the Revised Code, for housing accommodation and vacant land transactions only, in a font size of no less than nine points;
(4) Contain a disclosure that Ohio law requires the guide to be provided to prospective sellers, lessors, purchasers, lessees and the agent is required to obtain their signature acknowledging receipt of the guide;
(5) Contain a disclosure of the brokerage policy on customers that are un-represented;
(6) Provide all required disclosures in a font size of no less than eleven points;
(7) Contain a description of only those forms of agency permissible pursuant to section 4735.53 of the Revised Code.
(C) Other licensees within the same brokerage who later perform acts described in division (C) or (D) of section 4735.56 of the Revised Code are not required to make the disclosures described in section 4735.56 of the Revised Code if previously provided by another licensee within the same brokerage.
(D) The acknowledgement required pursuant to divisions (C) and (D) of section 4735.56 of the Revised Code may be on a document separate from the "Consumer Guide to Agency Relationships". The acknowledgement shall not be contained within any contract, agreement or addendum to which the buyer or seller is a party.
(A) (1) If a purchaser or seller declines to acknowledge receipt of the "Consumer Guide to Agency Relationships" required pursuant to section 4735.56 of the Revised Code or sign an agency disclosure form that is presented as required by section 4735.58 of the Revised Code, the licensee shall note the following on the bottom of the form:
(a) The party(ies) to whom the form was presented;
(b) The date and time the form was presented;
(c) The fact that the party(ies) declines to sign the form; and,
(d) The reason the party(ies) declines to sign the form if known.
(2) If a purchaser or seller declines to acknowledge receipt of "Consumer Guide to Agency Relationships" or sign an agency disclosure statement that is presented as required by section 4735.58 of the Revised Code, notice thereof shall immediately be communicated to a management level licensee in the brokerage who supervises the licensee.
(3) The brokerage shall, for a period of three years from the date of the transaction, maintain a copy of the form containing the information required by paragraph (B)(1) of this rule.
(B) No licensee shall fail to deliver or present an offer to purchase or lease because a party has declined to sign an agency disclosure statement or because an agency disclosure statement was not received.
(C) No modification, alteration, addition, deletion, or reduction in size of the agency disclosure statement shall be permitted. This provision shall not be construed as prohibiting compliance with the requirements of the Americans with Disabilities Act.
The following appendix A contains the form to be used for the agency disclosure statement, as required by section 4735.57 of the Revised Code.
Appendix 1 Agency Disclosure Statement
See Appendix at
(A) When an agency relationship is formed between a licensee and client, that client may delegate to that licensee, the authority to specifically appoint other licensees within the same brokerage to represent the client's interests. This delegation must be done in writing and must be signed by the client. It must also include language notifying the client he has the right to veto the appointment of any other licensee within the brokerage.
(B) If any delegation of authority to appoint as outlined in paragraph (A) of this rule is made, the licensee must notify the client, at the time the appointment takes place, that such an appointment is being made.
(C) When any delegation of authority to appoint as outlined in paragraph (A) of this rule creates a dual agency relationship described in section 4735.70 of the Revised Code, both the seller and the purchaser in the transaction must have full knowledge of the dual representation and consent in writing to the dual representation on the agency disclosure statement described in section 4735.57 of the Revised Code.
(A) Except as provided in section 4735.75 of the Revised Code, a licensee shall not negotiate the sale, exchange or lease of any real property directly with the purchaser or tenant if the licensee has actual knowledge that the purchaser or tenant has entered into a written outstanding agency agreement that grants exclusive agency to another real estate broker.
(B) A licensee is not required to ask a purchaser or tenant whether they have entered into such a written, exclusive agency relationship with another broker; except that a licensee is required to inquire as to the nature of a purchaser or tenant's relationship with another licensee if he has reasonable cause to believe the purchaser or tenant may be currently represented by another licensee.
(C) A licensee may rely upon a definitive representation by a purchaser or tenant that they are not currently subject to a written exclusive agency agreement with another broker and is not required to verify the accuracy of such a representation by a purchaser or tenant. Following such a representation by a purchaser or tenant a licensee may enter into direct negotiations with a purchaser or tenant.
(D) If the purchaser or tenant does not know whether they have entered into a written exclusive agency agreement with another licensee, a licensee is not permitted ot to negotiate with that purchaser or tenant until the purchaser or tenant can verify that they have not entered into such a written exclusive agreement with another licensee.
In accordance with division (D) of section 5302.30 of the Revised Code, the attached residential property disclosure form is prescribed by the director of commerce to permit transferors of residential real estate to disclose material matters relating to the physical condition of the property to be transferred, including, but not limited to, the source of water supply to the property; the nature of the sewer system serving the property; the availability of information relating to the sewage treatment system; the condition of the structure of the property, including the roof, foundation, walls, and floors; the presence of hazardous materials or substances, including lead-based paint, asbestos, urea-formaldehyde foam insulation, and radon gas; and any material defects in the property that are within the actual knowledge of the transferor.
R.C. 119.032 review dates: 06/25/2012 and 06/30/2016
Promulgated Under: 119.03
Statutory Authority: 5302.30
Rule Amplifies: 5302.30
Prior Effective Dates: 6/19/1993, 1/1/2004, 1/1/2007, 11/06/08
Rescinded eff 1-1-05