If only one party to the transaction is represented, can the real estate licensee provide services to the unrepresented party?
Yes. A real estate licensee may assist a non-client/customer (“non-client”) in certain pre-contractual matters in a residential transaction and in post-contractual matters relative to completing certain contingencies in the written contract of sale. However, the services must qualify as “ministerial acts,” meaning they do not involve the discretion or judgment of the licensee, and the written agreement between the licensee and their client must authorize the licensee to perform these ministerial acts on behalf of the non-client.
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, 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 contacting 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.
Ministerial acts might include helping with pre-qualifying the buyer, arranging for inspections, providing information regarding the loan application, and facilitating settlement.
Also, the written agreement between the licensee and the licensee’s client (i.e., the listing agreement or buyer agency agreement) must authorize the licensee to provide these ministerial acts on behalf of a non-client. The Maryland REALTORS® Exclusive Right to Sell Residential Brokerage Agreement, the Exclusive Right to Sell Unimproved Land Brokerage Agreement, the Exclusive Right to Lease Residential Brokerage Agreement, and the Exclusive Buyer/Tenant Residential Brokerage Agreement include the required notice and consent.
See Brokers Act §17–528(l), §17–532(h).
Once the seller/lessor signs the listing agreement, must I give seller the Understanding Whom Real Estate Agents Represent form so that the seller/lessor can acknowledge that I represent the seller/lessor?
Answer: No. The Understanding Whom Real Estate Agents Represent form is not required to be signed by a client with whom you have entered into a brokerage agreement.
See Brokers Act §17–530(a)(2).
Once the buyer/tenant signs the buyer/tenant broker agreement, must I give the buyer/tenant the Understanding Whom Real Estate Agents Represent form so that the buyer/tenant can acknowledge that I represent the buyer/tenant?
No. The Understanding Whom Real Estate Agents Represent form is not required to be signed by a client with whom you have entered into a brokerage agreement.
See Brokers Act §17–530(a)(2).
Must I provide the Understanding Whom Real Estate Agents Represent form at an open house?
No. You are following the law if you post the Open House Notice prepared by the Maryland Real Estate Commission in a conspicuous place about the property. This document may not be altered, must be displayed in at least 8.5" x 11" size, in color, and remain on the Maryland Real Estate Commission letterhead. You may download the open house disclosure at: https://www.dllr.state.md.us/forms/mrecopenhouse.pdf.
See Brokers Act §17–530(b)(2).
When is a licensee required to provide the Understanding Whom Real Estate Agents Represent form?
When only one party is represented, the real estate licensee must provide the Understanding Whom Real Estate Agents Represent form to the non-represented party not later than the first scheduled face-to-face contact with the non-represented party.
If the non-represented party refuses to sign the form, the licensee may self-certify that the licensee made the required disclosure.
See Brokers Act §17–530(a)(3), (c), (d), (e).
What must I disclose if the first contact between a buyer’s agent and an unrepresented seller/lessor is not a face-to-face?
If the first contact with an unrepresented seller/lessor is not face-to-face, the buyer’s agent shall disclose through medium in which contact occurred that the buyer’s agent represents the buyer. For example, if you call a FSBO seller to schedule a showing appointment for your buyer client, you would disclose to the seller that you represent the buyer during that first telephone call. Not later than the first scheduled face-to-face contact with the unrepresented seller/lessor, the buyer’s agent must provide the unrepresented seller/lessor with a copy of the Understanding Whom Real Estate Agents Represent form so that the unrepresented seller/lessor can acknowledge that the agent represents the buyer.
See Brokers Act §17–530(a)(3).
What must I disclose if the first contact between a seller’s agent or subagent and an unrepresented buyer/lessee is not face-to-face?
If the first contact with an unrepresented buyer/lessee is not face-to-face, the seller’s agent or subagent shall disclose through the medium in which the contact occurred that the seller’s agent or subagent works for the seller. Not later than the first scheduled face-to-face contact with the unrepresented buyer/lessee, the seller’s agent or subagent must provide the unrepresented buyer with a copy of the Understanding Whom Real Estate Agents Represent form so that the unrepresented buyer/lessee can acknowledge that the seller’s agent or subagent represents the seller.
See Brokers Act §17–530(a)(3).
Question 9: Can a licensee who previously acted as a subagent or seller’s agent switch hats and represent the buyer?
A REALTOR® who acted as a seller’s agent or subagent at the time of an initial showing of a listed property is not precluded from thereafter acting as a buyer's agent for the buyer. If the agent learned any confidential information about the seller while working as a subagent or seller’s agent, Maryland law requires that the agent maintain seller’s confidentiality.
We recommend having the seller acknowledge that the other agent in the transaction initially worked for the seller as a subagent or seller’s agent and now represents the buyer. The Maryland REALTORS® Agency Change Acknowledgement form may be used for this purpose.
See Brokers Act §17–532(b)(3).
What is a subagent?
A subagent shows the home to buyer customers on behalf of the seller but is from a different company than the listing broker. The full definition under the Brokers Act is as follows:
“Subagent” means a licensed real estate broker, licensed associate real estate broker, or licensed real estate salesperson who:
(1) is not affiliated with or acting as the listing real estate broker for a property;
(2) is not a buyer's agent;
(3) has a brokerage relationship with the seller or lessor; and
(4) assists a prospective buyer or lessee in the acquisition of real estate for sale or for lease in a nonagency capacity.
See Brokers Act §17–528(n).
Is there a document I can use to help explain Maryland Agency law to my clients and to customers?
Yes. Maryland REALTORS® has prepared an infographic, “Understanding Brokerage Relationships,” which you can use to discuss Maryland Agency law with your clients and to customers. You may access the document by clicking here.
Can the same broker represent the buyer and the seller?
Yes. This is called “Dual Agency” when one brokerage company represents both the owner and the prospective buyer or tenant of the property.
The broker (or branch manager as designated by the broker) acts as the dual agent in the transaction. They appoint two licensees in the company to act as Intra-Company agents, one represents the seller solely and exclusively while the other represents the buyer solely and exclusively.
The intra-company agents must provide the same services to their clients as an exclusive seller’s or buyer’s agent, including advising their clients as to price and negotiation strategy. Also, dual agents and intra-company agents must keep confidential information about a client’s bargaining position or motivations unless the client gives written consent to disclose the information. However, like all agents, an intra-company agent must disclose any material facts about a property.
If either the buyer or seller refuses to consent in writing to the dual agency, the broker may withdraw from representing the client who refuses to consent. The withdrawal may not prejudice the ability of the licensee to continue to represent the other client in the transaction nor to limit the licensee from representing the client who refused to consent to dual agency in transactions not involving dual agency.
See Brokers Act §17–530.1.
How do I use the Consent for Dual Agency form?
Generally, the seller and buyer consent to dual agency before the dual agency actually arises. As a convenience, the listing agent will typically have the seller sign the consent for dual agency form when the seller is signing the listing agreement and the buyer’s agent will typically have the buyer sign it when the buyer agency agreement is signed. At this point, however, no dual agency has actually occurred.
The current Consent for Dual Agency form contains, on page 2, two subparts. The first subpart is for the seller/buyer to consent in advance for the listing/buyer broker to act as a dual agent in the sale/purchase of property (the seller specifies the property address). This consent authorizes all of the agents affiliated with the listing broker to show the home to their buyer clients. Similarly, the consent authorizes the buyer’s agent to show their client all of the homes listed by the broker with whom they are affiliated.
The second subpart of the form requires the affirmation of the seller/buyer when the actual dual agency occurs. The seller must sign the second subpart, affirming their advance consent for dual agency for the specific buyers identified below. The buyer must sign the second subpart, affirming the advance consent for dual agency for the specific property identified below.
The written consent for dual agency shall include an affirmation that identifies the property and the buyer when the real estate broker or branch office manager is serving as a dual agent and the buyer and seller or lessee and lessor enter into a written contract for sale or for a lease, respectively.
See Brokers Act § 17-530.1.
Can the broker also be the listing agent in a situation where the broker is acting as a dual agent?
No, in the case of dual agency, the broker will be the dual agent and therefore cannot represent the seller as the listing agent. In a dual agency situation, the broker cannot act as an intra-company agent for the seller or the buyer. However, there are two possible ways to get around this problem.
For this analysis, we assume both buyer and seller have executed written brokerage agreements and signed the Consent for Dual Agency form published by the Maryland Real Estate Commission (see FAQ #2). A real estate brokerage needs at least three licensees to participate in dual agency, the dual agent, the seller’s intra-company agent and the buyer’s intra-company agent (see FAQ #27).
The first way is for the broker to assign the listing to another agent in the office who will then be the seller’s intra-company agent, while the broker serves in the role of the dual agent.
The second way to make it work is to avoid dual agency for this property. If the broker elects to continue to represent the seller as the listing agent, the brokerage may withdraw its representation of the buyer, continue to represent the seller, and offer to assist the (now unrepresented) buyer as the seller’s agent. You must be careful to perform only “ministerial acts” on behalf of the buyer (see FAQ #1). Another option, should the buyer prefer to be represented, would be to refer the buyer to another brokerage.
See Brokers Act §17–530.1(b)(1)(vii).
What are the requirements for real estate advertisements in the state of Maryland?
For digital advertisements, also see FAQ #81.
Am I required to use the Equal Housing Opportunity logo in my advertisements?
No, use of the Equal Housing Opportunity logo or slogan is not strictly required. However, it is highly recommended that it be included in all advertisements in order to demonstrate your commitment to fair housing, to assure the public that the properties are available to all persons and in order to limit legal liability.
HUD has issued Advertising Guidelines for Fair Housing: “All advertising of residential real estate for sale, rent, or financing should contain an equal housing opportunity logotype, statement, or slogan as a means of educating the homeseeking public that the property is available to all persons regardless of race, color, religion, sex, handicap, familial status, or national origin.” (54 FR 3308, Jan. 23, 1989, emphasis added). “Should” indicates that this is recommended but not required.
In the event of a fair housing complaint, HUD will consider whether the entity has included the Equal Housing Opportunity logo or slogan in its advertisements as evidence of compliance with the Fair Housing Act. Additionally, if the use of the logo or slogan has been used in advertisements for some geographic areas and not others or for some properties and not others, this could have a discriminatory effect and may indicate a violation of the Fair Housing Act.
The Equal Housing Opportunity logo should be included in all advertisements that are larger than four inches. It should be as large as any other logo in the advertisement and no smaller than half an inch. The slogan “Equal Housing Opportunity” should also be included in the advertisement.
Am I required to use the REALTOR® logo in my advertisements?
No, there is no requirement to use the REALTOR® logo. Members of the National Association of REALTORS® may use the REALTOR® logo, provided that they use it properly. For additional information regarding proper usage of the REALTOR® logo, click here.
What is the one-click rule?
Generally, electronic media advertisements must contain all of the required disclosures on the top 25% of the main page.
There is an exception called the “one-click rule” for electronic media where the app or platform has a limit of 280 characters or less. In this limited situation, the advertisement need not include all of the required disclosures if it includes a hyperlink that takes the use to a page containing all the required disclosures in the top 25% of that page.
To illustrate, Twitter posts (280 character limit), Facebook advertisements (125 character limit) and Instagram advertisements (125 character limit) would all qualify for the one-click rule, but not Facebook posts (63,206 character limit) or Instagram posts (2,200 character limit).
Md. Code Regs. 09.11.02.01(G)(4).
Can I offer a prize, raffle, or contest in my advertisement?
Maybe. If a licensee uses inducements to obtain a listing or a buyer/broker agreement, or to motivate a buyer to purchase certain property, those inducements must be offered to all consumers on the same basis.
For example, a seller may offer a drawing for a prize among attendees at an open house. As long as the only action a consumer has to take is to attend the open house, the Commission does not view this as a contest used to influence a party to purchase property.
See Brokers Act §17-322(b)(9) and Office of the Attorney General’s Counsel to the Real Estate Commission 12/14/10, available here.
Can my advertisement offer a referral fee?
A referral fee can only be paid to a real estate licensee. The act of referring someone for real estate brokerage services is itself real estate brokerage services. So only a real estate licensee can be compensated for real estate referrals.
See Brokers Act §17-101(l)(2) and §17-604(a).
Can my advertisements contain exaggerations or half-truths?
No, you must be careful at all times to present a true and accurate picture in your advertising and representations to the public.
We recommend that you show your proposed advertising to a neighbor or someone unfamiliar with the real estate industry. If that person is able to quickly identify the licensee and the company for whom the licensee works, the ad would most likely acceptable to the Real Estate Commission. If not, the ad may be considered misleading.
See Md. Code Regs. 09.11.02.01(G)(2) and Article 12 of the National Association of REALTORS® Code of Ethics.
Can an advertisement include an individual salesman or associate broker’s name?
Yes, but the advertisement must also include the broker’s name or company name. Also, the connection between the salesman or associate broker and the broker must be obvious in the advertisement.
See Md. Code Regs. 09.11.02.01(G)(2).
Can an advertisement include the phone number or email address of an individual salesman or associate broker?
Yes, the advertisement can include the contact information of a salesman or associate broker, but the identified phone number of the broker or branch office manager must also be included.
See Md. Code Regs. 09.11.02.01(G)(3).
Can an advertisement display the licensee’s nickname instead of their legal name?
Yes. A licensee can use a name other than their full legal name in advertising, including their first name, last name, or nickname, if that name appears on the license certificate and pocket card issued by the Maryland Real Estate Commission. A licensee wishing to transact business using a nickname or to change the name under which they are licensed, must submit an application to the Maryland Real Estate Commission. You may access the form by https://dllr.state.md.us/forms/mreclicchange.pdf
See Brokers Act §17–527.2(a)(4) and (b)(1).
Must an advertisement contain the company’s name?
Yes. Maryland law requires that the individual licensee’s name (as listed on your pocket card that was issued by the Maryland Real Estate Commission) and the name of the company with which you are affiliated (not simply the company logo) be meaningfully and conspicuously placed in the ad.
While the phrase “meaningful and conspicuous” may seem subjective, we strongly advise members to use a commonsense approach to advertising.
See Brokers Act §17–527.2(b).
Is a property manager required to allow a renter to keep a service dog or comfort animal at the property despite their “No Pets” policy?
It depends. Owners of housing facilities are required to make reasonable accommodations in their policies and operations to afford people with disabilities equal housing opportunities.
To qualify, the renter must have a disability, in other words, a “substantial limitation on a major life activity.” The landlord could ask for a note from their doctor or a determination letter from a government agency to make this determination. Also, there must be a connection between the disability and the need for the animal. If the connection is not obvious, the property manager can request documentation.
Allowing an animal that only offers emotional support can be reasonable accommodation.
If allowing the animal counts as a reasonable accommodation, then no fees or pet deposits may be charged.
But, there are a number of exceptions to this requirement. A property manager is not required to allow an animal that is a direct threat to the health and safety of others, the animal would cause substantial physical damage to property or the accommodation would be an undue burden. Also, a request for an unusual animal generally can be denied.
For more information, see HUD’s Assistance Animal Notice, available here.
Can a religious organization rent out one of their properties exclusively or preferentially to members of their faith?
Yes. There is a very narrow religious exemption in the Fair Housing Act that allows a religious organization or related nonprofit to deal exclusively or preferentially with members of their same religion in the “sale, rental, or occupancy of dwellings,” but there are several requirements.
First, the housing must be provided by a religious organization - such as a church, mosque, or synagogue - or a nonprofit that is “operated, supervised, or controlled by or in conjunction with a religious organization.”
Second, the housing must be provided for a purpose “other than a commercial purpose;” essentially, the goal of the religious organization in providing the housing cannot be to generate a profit.
Third, membership in the subject faith or religion must not be “restricted on account of race, color, or national origin.”
Further, the housing cannot be advertised (see FAQ #74) and REALTORS® cannot assist in the transaction (see FAQ #90).
See Section 807(1)(a) of the Fair Housing Act. See also Intermountain Fair Hous. Council v. Boise Rescue Mission Ministries, 717 F. Supp. 2d 1101 (D. Idaho 2010) (interpreting “commercial purpose” as profit purpose).
Can a religious organization advertise a preference for or limitation to members of its religion when trying to rent or sell a property?
No. Even when the religious exemption applies (see FAQ #73), there is no religious exemption from the prohibition on making, printing, and publishing advertisements indicating a preference or limitation because of religion.
See Section 804(c) of the Fair Housing Act.
Can a REALTOR® assist a religious organization in a transaction covered by the religious exemption?
No, a REALTOR® cannot assist a religious organization with a transaction that is limited in any way by religion even if the religious organization can lawfully engage in that transaction.
See 24 CFR § 100.135(a) and Article 10 of the NAR® Code of Ethics.
What is a short sale?
A "short sale" is a real estate transaction where the proceeds of the sale will not generate sufficient funds to pay the debt(s) secured by the property (and the seller is unable to pay the difference) and therefore, any creditor(s) with a security interest in the property must consent to receiving less than they are owed in return for releasing any lien on the property.
When does the Protection of Homeowners in Foreclosure Act apply to real estate licensees?
If a real estate licensee engages in certain activities with a homeowner whose mortgage is at least 60 days in default, they must follow very strict requirements under the Protection of Homeowners in Foreclosure Act (PHiFA). But there is an exemption for a real estate licensee who is acting within the scope of their real estate license.
As the scope of a real estate license is limited to assisting in the purchase or sale of property, to qualify under the exemption, the property must at least be listed on the multiple listing service and be transferred through a settlement.
When operating under the exemption, a real estate licensee must refer the client to other licensed professionals when dealing with topics that are outside the scope of their license, like tax consequences, credit score consequences, avoiding foreclosure, and negotiating with creditors on issues besides the sale.
Should a real estate licensee help a client who is currently in trouble with their mortgage refinance or restructure their loan?
No, helping a client who is currently in trouble with his mortgage to refinance or restructure the loan is beyond the scope of your real estate license and could subject you to disciplinary proceedings before the Real Estate Commission.
In order to help, under the Credit Services Businesses Act (MCSBA) the real estate licensee would have to also be licensed by the Commissioner of Financial Regulation. In addition, if the mortgage is at least 60 days in default, the licensee would also need to follow the requirements of the Protection of Homeowners in Foreclosure Act (PHiFA) (see FAQ #92).
You should speak with your broker, and perhaps with legal counsel, before engaging in such activities. The best practice would be to refer the past client to a reputable and competent counseling agency that has staff trained in working with folks who are in trouble with their mortgage.
Can a licensed real estate agent, who represents a buyer under a buyer agency agreement be considered a “foreclosure consultant” under the Protection of Homeowners in Foreclosure Act?
No. To be considered a foreclosure consultant under Protection of Homeowners in Foreclosure Act (PHiFA), the real estate agent must be providing foreclosure consulting services to the homeowner.