As of Aug. 28, all real estate licensees in Missouri are required to get a buyer’s agency agreement signed before providing brokerage services to a buyer. This change aligns with the NAR settlement from last year and creates consistency for all real estate licensees and consumers by matching the existing statutory requirement for a seller’s agent. However, as with any law change, there are questions, and of particular note is how the change affects ministerial acts and certain current brokerage practices.
The formal definition of Ministerial Acts is found in §339.710.19 RMSo., but can be summed up as “acts that require a real estate license to perform, but do not rise to the level of needing a written brokerage services agreement.” The list of acts defined in statute is non-exhaustive (meaning, not all examples are listed) and includes things like responding to telephone inquiries from customers regarding the price and location of a property and price and availability of brokerage services; however, the recent concern is whether signing a buyer up for alerts via a “portal” would be considered a ministerial act or would it require a written agency agreement under the Aug. 28 law change?
As the statutory list is non-exhaustive, it can be inferred the legislature meant to account for changes in business practices and technology that would occur after the passing of the statute 20+ years ago. Therefore, the fact that “electronic” portals and communications are not listed should not be an issue when considering whether something is a ministerial act currently. The real question is whether the signing up for a portal and alerts rises to a level of “representation” of a buyer. After consulting with the MREC, we’ve determined this practice likely does not rise to the level of representation requiring a written agency agreement and instead falls under advertising or solicitation of potential clients. This practice is similar to a licensee preparing a CMA or BPO to present at a listing presentation when attempting to secure a seller-client.
Like the CMA/BPO during the listing presentation, the practice of signing a buyer up for portal alerts on potential properties is meant to provide a “value proposition” for the licensee seeking to potentially convert that potential buyer to a client. However, much like in the CMA/BPO scenario where a potential seller may hear several listing presentations from different licensees before ultimately signing an agency agreement or not, a potential buyer may sign up for portal alerts with multiple different licensees before deciding whether to buy or not. It is important to note that just because this practice would generally be a ministerial act, it does not prevent a licensee from signing a written agency agreement with a potential buyer if the licensee intends to be the sole and exclusive representative for the buyer.
As with any “general rule” there may be exceptions depending on the case and circumstances, and licensees are encouraged to contact legal counsel for specific questions about individual situations.
Questions? Contact LEGAL LINE - a Missouri REALTORS® member benefit!