Minimum services law -- review

HB 150, which went into affect October 9 defines a licensee's duties as well as which of those duties may be waived. Further, the law requires that the new `Waiver of Duties Statement' form is signed when any of those duties is waived.

The `Waiver of Duties' is reprinted again in this issue (opposite). The version which appeared in the October issue was incorrect as it was reproduced in a scaled down size. Please note that licensees must use the full 8.5" x 11" version as it appears opposite.

The form as well as more detailed information is available at ColumbusRealtors.com Articles on the new law have appeared in the July August & October issues of the In Contract magazine and the September and October issues of Ohio REALTOR®.

Review of Key Points of the new lawLicensee's fiduciary duties
The new law clarifies the fiduciary duties an Ohio real estate licensee owes to their buyer or seller as listed in Ohio Revised Code 4735.62. These duties are spelled out under Required Duties' on the form (opposite).

When to use the `Waiver of Duties Statement'
A licensee must use the Waiver of Duties Statement if his client is waiving one or more of the duties listed in the "Duties That May Be Waived" section of the form. The Waiver must be signed at the time the listing agreement is entered into.

Should a change occur during the course of your relationship (i.e. the client signs the waiver and then asks you to perform a waived duty), you certainly have the right to decline. But should you agree, document the change.

Conversely, if you intend to perform all required duties but end up not performing one of these duties at the client's request (i.e. the seller has their attorney draft the counteroffer), you are not required to execute the form. But you should document this situation.

Negotiating directly with a seller or buyer
HB 150 makes an exception to the prohibition of negotiating directly with another broker's client if that broker has given written authorization to negotiate directly with his client. The broker's written authorization could be provided in an e-mail, letter, print advertising or through the MLS.

If written authorization is provided, the buyer's agent may:

Deliver or communicate any offer, counteroffer or proposal;
Discuss or review the terms of any offer, counteroffer or proposal;
Facilitate communication regarding an offer, counteroffer, or proposal and
Prepare any response as directed.
However, a buyer's agent may not prepare a counteroffer at the seller's request, unless this activity is specifically authorized by the listing broker.

Advertising as For Sale By Owner
Ohio Revised Code 4735.16(B)(2) prohibits a broker who is representing a seller under an exclusive right to sell listing agreement from advertising the property as a "for sale by owner" or "for sale with owner" or otherwise mislead the public to believe that the seller is not represented by a broker.