Frequently Asked Questions

Legal Hotline FAQ

a blog of the most frequently asked questions to the MAR legal hotline.


Cindy Sellers
Cindy Sellers
Cindy Sellers's Blog

I understand that real estate licensees may provide ministerial acts in a residential real estate transaction.

For example, a seller’s agent or subagent working with a non-client buyer would typically be involved in pre-qualifying the buyer and assisting the buyer in arranging for a home inspection, termite inspection, well and septic inspection, loan application and other necessary matters to bring the transaction to settlement. Even though the licensee represents the seller, he/she is working closely with the non-client buyer to assist him/her in fulfilling these contractual matters.
 
Similarly, a licensee representing a buyer in the purchase of a home for sale by owner, may provide similar assistance to the seller to complete post-contract matters and facilitate settlement. These acts, which assist a non-client, are “ministerial acts”.
 
A “ministerial act” under the law cannot involve the discretion and exercise of judgment by the licensee. In other words, the licensee may assist the non-client in providing such services, but it must be the non-client who ultimately makes all decisions relative to any pre- or post –contract matters. For example, if the contract of sale is subject to a home inspection, the licensee may assist the non-client buyer in arranging the date, time and place of the home inspection as well as making contact with the home inspector to schedule and complete the home inspection. However, the buyer must select the inspector and decide the date, time and place of the inspection. In other words, the licensee makes no independent decision as to these matters. Consequently, the services the licensee provides regarding the home inspection qualify as a ministerial act.
 
The only condition required under the law regarding ministerial acts is that the written agreement between the licensee and the licensee’s client (i.e., the listing agreement or buyer agency agreement) must contain a statement by the client authorizing the licensee to provide these ministerial acts on behalf of a non-client. Most listing agreements and buyer agency agreements include the required notice and consent.
 



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