Frequently Asked Questions

May a licensee act as a statutory broker for one party to a transaction and a seller agent or buyer agent for the other party?

No. By definition, a statutory broker is one who assists one or more parties to the transaction but doesn’t represent any party to the transaction.  It is therefore not possible to be a statutory broker for one party while representing the other party as a seller agent or buyer agent.

Should an agent have a new buyer who has been assigned the buyer’s rights under a buy-sell agreement execute new relationship disclosure documents?

Probably. Unless the assignee buyer is simply an entity owned by all of the assignor buyers who assigned the buyer rights under the buy-sell agreement, the new assignee should be review and sign a relationship disclosure form.  The buyer agent should also have the assignee buyer sign a new buyer broker agreement.

May a licensee act as a statutory broker for one party to a transaction and a seller agent or buyer agent for the other party?

No. By definition, a statutory broker is one who assists one or more parties to the transaction but doesn’t represent any party to the transaction.  It is therefore not possible to be a statutory broker for one party while representing the other party as a seller agent or buyer agent.

Should an agent have a new buyer who has been assigned the buyer’s rights under a buy-sell agreement execute new relationship disclosure documents?

Probably. Unless the assignee buyer is simply an entity owned by all of the assignor buyers who assigned the buyer rights under the buy-sell agreement, the new assignee should be review and sign a relationship disclosure form.  The buyer agent should also have the assignee buyer sign a new buyer broker agreement.

Is it permissible for an agent to represent a seller when the agent is the buyer?

No. The BRR considers it unprofessional conduct for a real estate licensee to act as a seller agent in a transaction where the licensee is the buyer.  It is also unprofessional conduct for the licensee to act as a buyer agent in a transaction in which the licensee is the seller. This is clearly set forth in ARM § 24.210.641.

May a licensee represent a buyer in making an offer on a for-sale by owner property?

Yes. There is nothing that precludes a licensee from being involved in a transaction where the seller is unrepresented.  The licensee may also use the MAR forms in such a transaction.  However, the licensee representing a buyer who desires to purchase a property that is for-sale by owner should be very careful to clearly explain to the seller that the licensee is not representing the seller and therefore is unable to provide the seller any guidance or advice.

May a supervising broker supervise salespeople who are not physically located in the same office?

Probably.  BRR regulations impose requirements on a supervising broker to train and supervise salespeople.  However, there is no requirement that the salespeople be in the same office for the supervising broker to do so.  However, a supervising broker needs to analyze how effectively she or he can supervise salespeople when the supervising broker is not in the same location as the salespeople over whom they are supervising.  Therefore, while the rules do not specifically require that a supervising broker is in the same location as the salespeople being supervised, it may create additional risk for the supervising broker.

Is an active real estate license required to host an open house?

Yes.  The BRR has provided guidelines concerning what is acceptable conduct by an unlicensed sales assistant.  These guidelines may be found here.  One of the things an unlicensed sales assistant may not do is host an open house.  The unlicensed assistant may attend the open house, prepare it for showing and gather information from potential buyers during the open house.  However, the unlicensed assistant must be under the guidance and supervisions of a real estate licensee.

What is an in-house agent designate and when may it be used?

Prior to the effect of the 1995 amendments to the Real Estate Licensing Act (RELA), a concern was presented that if a broker took a listing all other brokers in his or her office were deemed the agent of the seller. This often led to a real or perceived need to act as a dual agent on in-house transactions (e.g. those transactions in which a licensee in an office took the listing and another licensee in the same office was representing a buyer as a buyer agent). In order to provide an avenue other than dual agency on transactions where the buyer agent and seller agent are affiliated with the same brokerage, RELA was amended to provide for the designation of a particular broker or salesperson in an office to serve as a "in-house seller agent designate" and another to serve as an "in-house buyer agent designate" thus avoiding the potential need to disclose or obtain consent to a dual agent relationship. The designations are made by a broker (preferably a manager or owner) in the office designating one broker or salesperson as the in-house seller agent designate and another as the in-house buyer agent designate.  Such designation can be best memorialized by a memorandum to the files detailing the designations.  After the designation and throughout the transaction, the two in-house designates, despite being in the same office, will represent the buyer and seller individually.

Unfortunately, Montana law does not provide any statutory guidance concerning what policies or procedure should be adopted by an office to take advantage of in-house designation.  At a minimum, it is likely that policies and procedures should be in place to protect information which might be deemed confidential from inadvertent disclosure. 

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