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Article 15 - Agency Relationships

      (225 ILCS 454/Art. 15 heading)ARTICLE 15. AGENCY RELATIONSHIPS

    (225 ILCS 454/15‑5)
    (Section scheduled to be repealed on January 1, 2020)
    Sec. 15‑5. Legislative intent.
    (a) The General Assembly finds that application of the common law of agency to the relationships among real estate brokers and salespersons and consumers of real estate brokerage services has resulted in misunderstandings and consequences that have been contrary to the best interests of the public. The General Assembly further finds that the real estate brokerage industry has a significant impact upon the economy of the State of Illinois and that it is in the best interest of the public to provide codification of the relationships between real estate brokers and salespersons and consumers of real estate brokerage services in order to prevent detrimental misunderstandings and misinterpretations of the relationships by consumers, real estate brokers, and salespersons and thus promote and provide stability in the real estate market. This Article 15 is enacted to govern the relationships between consumers of real estate brokerage services and real estate brokers and salespersons to the extent not governed by an individual written agreement between a sponsoring broker and a consumer, providing that there is a relationship other than designated agency. This Article 15 applies to the exclusion of the common law concepts of principal and agent and to the fiduciary duties, which have been applied to real estate brokers, salespersons, and real estate brokerage services.
    (b) The General Assembly further finds that this Article 15 is not intended to prescribe or affect contractual relationships between real estate brokers and the broker's affiliated licensees.
    (c) This Article 15 may serve as a basis for private rights of action and defenses by sellers, buyers, landlords, tenants, real estate brokers, and real estate salespersons. The private rights of action, however, do not extend to the provisions of any other Articles of this Act.
(Source: P.A. 91‑245, eff. 12‑31‑99.)

    (225 ILCS 454/15‑10)
    (Section scheduled to be repealed on January 1, 2020)
    Sec. 15‑10. Relationships between licensees and consumers. Licensees shall be considered to be representing the consumer they are working with as a designated agent for the consumer unless:
        (1) there is a written agreement between the

sponsoring broker and the consumer providing that there is a different relationship; or

(2) the licensee is performing only ministerial acts

on behalf of the consumer.

(Source: P.A. 91‑245, eff. 12‑31‑99.)

    (225 ILCS 454/15‑15)
    (Section scheduled to be repealed on January 1, 2020)
    Sec. 15‑15. Duties of licensees representing clients.
    (a) A licensee representing a client shall:
        (1) Perform the terms of the brokerage agreement

between a broker and the client.

(2) Promote the best interest of the client by:             (A) Seeking a transaction at the price and terms

stated in the brokerage agreement or at a price and terms otherwise acceptable to the client.

(B) Timely presenting all offers to and from the

client, unless the client has waived this duty.

(C) Disclosing to the client material facts

concerning the transaction of which the licensee has actual knowledge, unless that information is confidential information. Material facts do not include the following when located on or related to real estate that is not the subject of the transaction: (i) physical conditions that do not have a substantial adverse effect on the value of the real estate, (ii) fact situations, or (iii) occurrences.

(D) Timely accounting for all money and property

received in which the client has, may have, or should have had an interest.

(E) Obeying specific directions of the client

that are not otherwise contrary to applicable statutes, ordinances, or rules.

(F) Acting in a manner consistent with promoting

the client's best interests as opposed to a licensee's or any other person's self‑interest.

(3) Exercise reasonable skill and care in the

performance of brokerage services.

(4) Keep confidential all confidential information

received from the client.

(5) Comply with all requirements of this Act and all

applicable statutes and regulations, including without limitation fair housing and civil rights statutes.

(b) A licensee representing a client does not breach a duty or obligation to the client by showing alternative properties to prospective buyers or tenants, by showing properties in which the client is interested to other prospective buyers or tenants, or by making or preparing contemporaneous offers or contracts to purchase or lease the same property. However, a licensee shall provide written disclosure to all clients for whom the licensee is preparing or making contemporaneous offers or contracts to purchase or lease the same property and shall refer to another designated agent any client that requests such referral.     (c) A licensee representing a buyer or tenant client will not be presumed to have breached a duty or obligation to that client by working on the basis that the licensee will receive a higher fee or compensation based on higher selling price or lease cost.     (d) A licensee shall not be liable to a client for providing false information to the client if the false information was provided to the licensee by a customer unless the licensee knew or should have known the information was false.     (e) Nothing in the Section shall be construed as changing a licensee's duty under common law as to negligent or fraudulent misrepresentation of material information. (Source: P.A. 96‑856, eff. 12‑31‑09.)

    (225 ILCS 454/15‑20)
    (Section scheduled to be repealed on January 1, 2020)
    Sec. 15‑20. Failure to disclose information not affecting physical condition. No cause of action shall arise against a licensee for the failure to disclose: (i) that an occupant of the property was afflicted with Human Immunodeficiency Virus (HIV) or any other medical condition; (ii) that the property was the site of an act or occurrence that had no effect on the physical condition of the property or its environment or the structures located thereon; (iii) fact situations on property that is not the subject of the transaction; or (iv) physical conditions located on property that is not the subject of the transaction that do not have a substantial adverse effect on the value of the real estate that is the subject of the transaction.
(Source: P.A. 91‑245, eff. 12‑31‑99; 92‑16, eff. 6‑28‑01.)

    (225 ILCS 454/15‑25)
    (Section scheduled to be repealed on January 1, 2020)
    Sec. 15‑25. Licensee's relationship with customers.
    (a) Licensees shall treat all customers honestly and shall not negligently or knowingly give them false information. A licensee engaged by a seller client shall timely disclose to customers who are prospective buyers all latent material adverse facts pertaining to the physical condition of the property that are actually known by the licensee and that could not be discovered by a reasonably diligent inspection of the property by the customer. A licensee shall not be liable to a customer for providing false information to the customer if the false information was provided to the licensee by the licensee's client and the licensee did not have actual knowledge that the information was false. No cause of action shall arise on behalf of any person against a licensee for revealing information in compliance with this Section.
    (b) A licensee representing a client in a real estate transaction may provide assistance to a customer by performing ministerial acts. Performing those ministerial acts shall not be construed in a manner that would violate the brokerage agreement with the client, and performing those ministerial acts for the customer shall not be construed in a manner as to form a brokerage agreement with the customer.
(Source: P.A. 91‑245, eff. 12‑31‑99.)

    (225 ILCS 454/15‑30)
    (Section scheduled to be repealed on January 1, 2020)
    Sec. 15‑30. Duties after termination of brokerage agreement. Except as may be provided in a written agreement between the broker and the client, neither a sponsoring broker nor any licensee affiliated with the sponsoring broker owes any further duties to the client after termination, expiration, or completion of performance of the brokerage agreement, except:
        (1) to account for all moneys and property relating

to the transaction; and

(2) to keep confidential all confidential

information received during the course of the brokerage agreement.

(Source: P.A. 91‑245, eff. 12‑31‑99.)

    (225 ILCS 454/15‑35)
    (Section scheduled to be repealed on January 1, 2020)
    Sec. 15‑35. Agency relationship disclosure.
    (a) A licensee shall advise a consumer in writing of the following no later than beginning to work as a designated agent on behalf of the consumer:
        (1) That a designated agency relationship exists,

unless there is written agreement between the sponsoring broker and the consumer providing for a different brokerage relationship.

(2) The name or names of his or her designated agent

or agents. The written disclosure can be included in a brokerage agreement or be a separate document, a copy of which is retained by the sponsoring broker for the licensee.

(b) The licensee representing the consumer shall discuss

with the consumer the sponsoring broker's compensation and policy with regard to cooperating with brokers who represent other parties in a transaction.

(c) A licensee shall disclose in writing to a customer that the licensee is not acting as the agent of the customer at a time intended to prevent disclosure of confidential information from a customer to a licensee, but in no event later than the preparation of an offer to purchase or lease real property. (Source: P.A. 96‑856, eff. 12‑31‑09.)

    (225 ILCS 454/15‑40)
    (Section scheduled to be repealed on January 1, 2020)
    Sec. 15‑40. Compensation does not determine agency. Compensation does not determine agency relationship. The payment or promise of payment of compensation to a licensee is not determinative of whether an agency relationship has been created between any licensee and a consumer.
(Source: P.A. 91‑245, eff. 12‑31‑99.)

    (225 ILCS 454/15‑45)
    (Section scheduled to be repealed on January 1, 2020)
    Sec. 15‑45. Dual agency.
    (a) A licensee may act as a dual agent only with the informed written consent of all clients. Informed written consent shall be presumed to have been given by any client who signs a document that includes the following:
        "The undersigned (insert name(s)), ("Licensee"), may

undertake a dual representation (represent both the seller or landlord and the buyer or tenant) for the sale or lease of property. The undersigned acknowledge they were informed of the possibility of this type of representation. Before signing this document please read the following: Representing more than one party to a transaction presents a conflict of interest since both clients may rely upon Licensee's advice and the client's respective interests may be adverse to each other. Licensee will undertake this representation only with the written consent of ALL clients in the transaction. Any agreement between the clients as to a final contract price and other terms is a result of negotiations between the clients acting in their own best interests and on their own behalf. You acknowledge that Licensee has explained the implications of dual representation, including the risks involved, and understand that you have been advised to seek independent advice from your advisors or attorneys before signing any documents in this transaction.

WHAT A LICENSEE CAN DO FOR CLIENTS WHEN ACTING AS A DUAL AGENT     1. Treat all clients honestly.     2. Provide information about the property to the buyer

or tenant.

3. Disclose all latent material defects in the property

that are known to the Licensee.

4. Disclose financial qualification of the buyer or

tenant to the seller or landlord.

5. Explain real estate terms.     6. Help the buyer or tenant to arrange for property

inspections.

7. Explain closing costs and procedures.     8. Help the buyer compare financing alternatives.     9. Provide information about comparable properties that

have sold so both clients may make educated decisions on what price to accept or offer.

WHAT LICENSEE CANNOT DISCLOSE TO CLIENTS WHEN ACTING AS A DUAL AGENT     1. Confidential information that Licensee may know about

a client, without that client's permission.

2. The price or terms the seller or landlord will take

other than the listing price without permission of the seller or landlord.

3. The price or terms the buyer or tenant is willing to

pay without permission of the buyer or tenant.

4. A recommended or suggested price or terms the buyer

or tenant should offer.

5. A recommended or suggested price or terms the seller

or landlord should counter with or accept.

If either client is uncomfortable with this

disclosure and dual representation, please let Licensee know. You are not required to sign this document unless you want to allow Licensee to proceed as a Dual Agent in this transaction. By signing below, you acknowledge that you have read and understand this form and voluntarily consent to Licensee acting as a Dual Agent (that is, to represent BOTH the seller or landlord and the buyer or tenant) should that become necessary."

(b) The dual agency disclosure form provided for in subsection (a) of this Section must be presented by a licensee, who offers dual representation, to the client at the time the brokerage agreement is entered into and may be signed by the client at that time or at any time before the licensee acts as a dual agent as to the client.     (c) A licensee acting in a dual agency capacity in a transaction must obtain a written confirmation from the licensee's clients of their prior consent for the licensee to act as a dual agent in the transaction. This confirmation should be obtained at the time the clients are executing any offer or contract to purchase or lease in a transaction in which the licensee is acting as a dual agent. This confirmation may be included in another document, such as a contract to purchase, in which case the client must not only sign the document but also initial the confirmation of dual agency provision. That confirmation must state, at a minimum, the following:         "The undersigned confirm that they have previously

consented to (insert name(s)), ("Licensee"), acting as a Dual Agent in providing brokerage services on their behalf and specifically consent to Licensee acting as a Dual Agent in regard to the transaction referred to in this document."

(d) No cause of action shall arise on behalf of any person against a dual agent for making disclosures allowed or required by this Article, and the dual agent does not terminate any agency relationship by making the allowed or required disclosures.     (e) In the case of dual agency, each client and the licensee possess only actual knowledge and information. There shall be no imputation of knowledge or information among or between clients, brokers, or their affiliated licensees.     (f) In any transaction, a licensee may without liability withdraw from representing a client who has not consented to a disclosed dual agency. The withdrawal shall not prejudice the ability of the licensee to continue to represent the other client in the transaction or limit the licensee from representing the client in other transactions. When a withdrawal as contemplated in this subsection (f) occurs, the licensee shall not receive a referral fee for referring a client to another licensee unless written disclosure is made to both the withdrawing client and the client that continues to be represented by the licensee. (Source: P.A. 96‑856, eff. 12‑31‑09.)

    (225 ILCS 454/15‑50)
    (Section scheduled to be repealed on January 1, 2020)
    Sec. 15‑50. Designated agency.
    (a) A sponsoring broker entering into an agreement with any person for the listing of property or for the purpose of representing any person in the buying, selling, exchanging, renting, or leasing of real estate may specifically designate those licensees employed by or affiliated with the sponsoring broker who will be acting as legal agents of that person to the exclusion of all other licensees employed by or affiliated with the sponsoring broker. A sponsoring broker entering into an agreement under the provisions of this Section shall not be considered to be acting for more than one party in a transaction if the licensees specifically designated as legal agents of a person are not representing more than one party in a transaction.
    (b) A sponsoring broker designating affiliated licensees to act as agents of clients shall take ordinary and necessary care to protect confidential information disclosed by a client to his or her designated agent.
    (c) A designated agent may disclose to his or her sponsoring broker or persons specified by the sponsoring broker confidential information of a client for the purpose of seeking advice or assistance for the benefit of the client in regard to a possible transaction. Confidential information shall not be disclosed by the sponsoring broker or other specified representative of the sponsoring broker unless otherwise required by this Act or requested or permitted by the client who originally disclosed the confidential information.
(Source: P.A. 91‑245, eff. 12‑31‑99.)

    (225 ILCS 454/15‑55)
    (Section scheduled to be repealed on January 1, 2020)
    Sec. 15‑55. No subagency. A broker is not considered to be a subagent of a client of another broker solely by reason of membership or other affiliation by the brokers in a multiple listing service or other similar information source, and an offer of subagency may not be made through a multiple listing service or other similar information source.
(Source: P.A. 91‑245, eff. 12‑31‑99.)

    (225 ILCS 454/15‑60)
    (Section scheduled to be repealed on January 1, 2020)
    Sec. 15‑60. Vicarious liability. A consumer shall not be vicariously liable for the acts or omissions of a licensee in providing licensed activities for or on behalf of the consumer.
(Source: P.A. 91‑245, eff. 12‑31‑99.)

    (225 ILCS 454/15‑65)
    (Section scheduled to be repealed on January 1, 2020)
    Sec. 15‑65. Regulatory enforcement. Nothing contained in this Article limits the Department in its regulation of licensees under other Articles of this Act and the substantive rules adopted by the Department. The Department, with the advice of the Board, is authorized to promulgate any rules that may be necessary for the implementation and enforcement of this Article 15.
(Source: P.A. 96‑856, eff. 12‑31‑09.)

    (225 ILCS 454/15‑70)
    (Section scheduled to be repealed on January 1, 2020)
    Sec. 15‑70. Actions for damages.
    (a) In any action brought under this Article 15, the court may, in its discretion, award only actual damages and court costs or grant injunctive relief, when appropriate.
    (b) Any action under this Article 15 shall be forever barred unless commenced within 2 years after the person bringing the action knew or should reasonably have known of such act or omission. In no event shall the action be brought more than 5 years after the date on which the act or omission occurred. If the person entitled to bring the action is under the age of 18 or under legal disability the period of limitations shall not begin to run until the disability is removed.
(Source: P.A. 91‑245, eff. 12‑31‑99.)

    (225 ILCS 454/15‑75)
    (Section scheduled to be repealed on January 1, 2020)
    Sec. 15‑75. Exclusive brokerage agreements. All exclusive brokerage agreements must specify that the sponsoring broker, through one or more sponsored licensees, must provide, at a minimum, the following services:
        (1) accept delivery of and present to the client

offers and counteroffers to buy, sell, or lease the client's property or the property the client seeks to purchase or lease;

(2) assist the client in developing, communicating,

negotiating, and presenting offers, counteroffers, and notices that relate to the offers and counteroffers until a lease or purchase agreement is signed and all contingencies are satisfied or waived; and

(3) answer the client's questions relating to the

offers, counteroffers, notices, and contingencies.

(Source: P.A. 93‑957, eff. 8‑19‑04.)