§ 5-20.6-6 - Dual facilitator.
SECTION 5-20.6-6
§ 5-20.6-6 Dual facilitator. – (a) A licensee may assist both the buyer client and the seller client or tenantclient and landlord client in the same transaction only as a neutral dualfacilitator.
(b) The dual facilitator relationship between the licenseeand buyer and seller, or between the licensee and tenant client and landlordclient, exists solely for the specific transaction between the parties. In theevent the transaction is not completed or fails to close, then the dualfacilitator remains the designated client representative for the respectivebuyer and the seller or tenant and landlord in all future, separatetransactions where there is no relationship with other party.
(c) A licensee may be a neutral dual facilitator only afterhe or she has obtained the informed, written consent of his or her principalbroker and all parties involved in the transaction before presenting an offerto a seller client on behalf of a buyer client or to a landlord client onbehalf of a tenant client. Such consent shall specifically inform all partiesto the transaction of the following:
(1) The dual facilitator is authorized to assist both partiesin a transaction but shall be neutral as to any conflicting interests betweenthe parties to the transaction;
(2) A dual facilitator shall not have the ability to satisfyfully the duties of loyalty, full disclosure, reasonable care and obedience tolawful instructions, but shall still owe a duty to protect the confidentialinformation of all parties and a duty to account for funds;
(3) Confidential information obtained by a dual facilitatorfrom either party may not be disclosed except:
(i) If disclosure is expressly authorized;
(ii) If such disclosure is required by law;
(iii) If such disclosure is intended to prevent illegalconduct; or
(iv) If such disclosure is necessary to prosecute a claimagainst a person represented or to defend a claim against the licensee. Theduty to protect confidential information shall continue after the completion ofthe transaction; and
(4) If a comparative market analysis was prepared for aseller client or a buyer client and a dual facilitation situation subsequentlyarises, the dual facilitator may only provide the comparative market analysisto the other party with the prior consent of the party for whom it wasinitially prepared. A dual facilitator shall not be able to prepare acomparative market analysis for either party after a dual facilitationsituation arises as it may adversely affect one party's bargaining positionrelative to the other party.
In the event that either the seller client or buyer client inthe case of a sale of property, or the landlord client and the tenant client inthe case of a rental of property, does not consent to dual facilitation, thenthe principal broker or his or her designee, may, with the consent of theparty(ies) withholding consent designate another licensee to represent one ofthe parties as a designated client representative.
In the event that an affiliated licensee is acting as a dualfacilitator, the principal broker or his or her designee shall act as a neutraltransaction coordinator in the transaction, except as required by §5-20.8-2, and shall protect the parties' confidential information.