What are a listing agent’s duties relating to the Residential Property Disclosure Statement?

QUESTION: What are a listing agent’s obligations when it comes to a client’s completion of a Residential Property and Owners’ Association Disclosure Statement (the “RPOADS”). Are listing agents required to assist their owner clients in completing that form?

ANSWER: Although the duties imposed on real estate licensees by the Residential Property Disclosure Act are limited to informing their clients about the requirements of the Act, the North Carolina Real Estate Commission’s Real Estate Manual outlines a number of additional duties, including assisting owner clients with completion of the form.

The statutory duty of agents is set forth in Section 47E-8 of the North Carolina General Statutes. That section states that a real estate broker acting as an agent in a residential real estate transaction has the duty to inform each of their clients of the clients’ obligation under the Act. Section 47E-8 goes on to state that if the broker performs this duty, the broker will not be responsible for the client’s refusal to complete the disclosures required by the Act.

The Commission’s Real Estate Manual identifies a number of additional steps that the Commission expects agents to take. They include the following:

• Provide the seller with copies of the RPOADS and the Mineral and Oil and Gas Rights Disclosure (“MOG”).
• Advise the seller that the buyer has a three-day right to terminate a sales contract when the seller or the seller’s agent fails to deliver the disclosure statements to the buyer (or the buyer’s agent) prior to or at the time the buyer makes an offer, and that the buyer has no such right if the disclosure statements are delivered in a timely manner.
• Explain to the seller that the broker has a duty to disclose material facts about the property even if the seller chooses to make no representation regarding the matter.
• Assist the seller in assessing the property and completing the form.
• Monitor the property to ensure the continuing accuracy of the disclosures, and assist the seller in preparing corrected disclosures, if necessary.
• Obtain from the buyer or the buyer’s agent, at the time the buyer submits an offer, copies of the RPOADS and the MOG that have been signed by the buyer and retain those documents in the broker’s file.

The Real Estate Manual includes the following statement: “A licensee who fails to perform these additional duties may violate the Real Estate License Law in some circumstances.”