Aren't You a Real Estate Agent?

Dated: July 14 2021

Views: 83

Aren’t You a Real Estate Agent?

 Across the country there are several different names for people who are licensed to provide real estate services.  You may be familiar with salesperson, agent or broker.  Let’s break it down.  In New Mexico we are licensed as either an Associate Broker or a Qualifying Broker.  We are not agents.  You may think that is odd or even moot but read on to find out why you care.

What is an agent?  The New Mexico Real Estate Commission defines agent as the, “brokerage authorized, solely by means of an express written agreement, to act as a fiduciary for a person and to provide real estate services that are subject to the jurisdiction of the commission”.  It’s important to understand what “fiduciary” means. 

Black's Law Dictionary, 5th Edition, at page 563, defines a fiduciary as ":...a person holding the character of a trustee...in respect to the trust and confidence involved in it and the scrupulous good faith and candor which it requires. A person having duty, created by his undertaking, to act primarily for another's benefit in matters connected with such undertaking." 

I spoke with a lawyer on the subject and on the surface that seems like what you (as a buyer or seller) would want however, the lawyer suggested that fiduciary duties owed under an agency relationship and the liability that stems therefrom is complex and nuanced. It is possible for a buyer or seller to be held liable for the actions of the real estate agent when an agency relationship is created.  For this reason, the New Mexico Real Estate Commission revised commission rules to avoid creating an agency relationship between the consumer and those licensed to provide real estate services except by special written agreement.

What that means is when you enlist the help of someone to sell your home or purchase a home in New Mexico they are not a licensed real estate agent.  They are either a licensed Associate Broker or a licensed Qualifying Broker.  The difference in those two is that a Qualifying Broker needs a bit more continuing education and they usually, but not always, supervise other brokers.

Because we are not “agents” the New Mexico Real Estate Commission put forth duties that we owe to customers, clients, and other brokers in the transaction.  These duties are known as “broker duties”. You can read those in their entirety here (bottom of page 96).  It’s important to understand that the duties owed to you as a customer or client include honesty, ethical & professional conduct & confidentiality among many others. When a broker has breached these duties a complaint can be made to the New Mexico Real Estate Commission. 

Okay, so you aren’t a real estate agent….are you a REALTOR®?

A person licensed to provide real estate services in any state (broker, agent, salesperson) is only a REALTOR® if they are a member of the National Association of Realtors (NAR).  Being a member of NAR means that a broker/agent/salesperson agrees to abide by a special code, the Code of Ethics.

I hope this has clarified the relationship that you may have with your broker.  If you have any questions for me please don’t hesitate to reach out!

 

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Regina McKinney

Regina McKinney is an "outside-the-box" thinker with her finger on the newest, innovative ways of marketing your home. Her deep understanding of the role technology plays in today's real estate market....

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