10-6A-5 (2019)
Duties and responsibilities of broker engaged by seller
(a) A broker engaged by a seller shall: (1) Perform the terms of the brokerage engagement made with the seller; (2) Promote the interests of the seller by: (A) Seeking a sale at the price and terms stated in the brokerage engagement or at a price and terms acceptable to the seller; provided, however, that the broker shall not be obligated to seek additional offers to purchase the property while the property is subject to a contract of sale, unless the brokerage engagement so provides; (B) Timely presenting all offers to and from the seller, even when the property is subject to a contract of sale; (C) Disclosing to the seller material facts which the broker has actual knowledge concerning the transaction; (D) Advising the seller to obtain expert advice as to material matters which are beyond the expertise of the broker; and (E) Timely accounting for all money and property received in which the seller has or may have an interest; (3) Exercise reasonable skill and care in performing the duties set forth in this subsection and such other duties, if any, as may be agreed to by the parties in the brokerage engagement; (4) Comply with all requirements of this chapter and all applicable statutes and regulations, including but not limited to fair housing and civil rights statutes; and (5) Keep confidential all information received by the broker dur1053
ing the course of the engagement which is made confidential by an express request or instruction from the seller unless the seller permits such disclosure by subsequent word or conduct, or such disclosure is required by law; provided, however, that disclosures between a broker and any of the broker’s affiliated licensees assisting the broker in representing the seller shall not be deemed to breach the duty of confidentiality described above. (b) A broker engaged by a seller shall timely disclose the following to all parties with whom the broker is working: (1) All adverse material facts pertaining to the physical condition of the property and improvements located on such property including but not limited to material defects in the property, environmental contamination, and facts required by statute or regulation to be disclosed which are actually known by the broker which could not be discovered by a reasonably diligent inspection of the property by the buyer; and (2) All material facts pertaining to existing adverse physical conditions in the immediate neighborhood within one mile of the property which are actually known to the broker and which could not be discovered by the buyer upon a diligent inspection of the neighborhood or through the review of reasonably available governmental regulations, documents, records, maps, and statistics. Examples of reasonably available governmental regulations, documents, records, maps, and statistics shall include without limitation: land use maps and plans; zoning ordinances; recorded plats and surveys; transportation maps and plans; maps of flood plains; tax maps; school district boundary maps; and maps showing the boundary lines of governmental jurisdictions. Nothing in this subsection shall be deemed to create any duty on the part of a broker to discover or seek to discover either adverse material facts pertaining to the physical condition of the property or existing adverse conditions in the immediate neighborhood. Brokers shall not knowingly give prospective buyers false information; provided, however, that a broker shall not be liable to a buyer for providing false information to the buyer if the broker did not have actual knowledge that the information was false and discloses to the buyer the source of the information. Nothing in this subsection shall limit any obligation of a seller under any applicable law to disclose to prospective buyers all adverse material facts actually known by the seller pertaining to the physical condition of the property nor shall it limit the obligation of prospective buyers to inspect and to familiarize themselves with potentially adverse conditions related to the physical condition of the property, any improvements located on the property, and the neighborhood in which the property is located. No cause of action shall arise on behalf of any
person against a broker for revealing information in compliance with this subsection. No broker shall be liable for failure to disclose any matter other than those matters enumerated in this subsection. Violations of this subsection shall not create liability on the part of the broker absent a finding of fraud on the part of the broker. (c) A broker engaged by a seller in a real estate transaction may provide assistance to the buyer by performing ministerial acts of the type described in Code Section 10-6A-14; and performing such ministerial acts shall not be construed to violate the broker’s brokerage engagement with the seller nor shall performing such ministerial acts for the buyer be construed to form a brokerage engagement with the buyer. (d) A broker engaged by a seller does not breach any duty or obligation by showing alternative properties to prospective buyers.
History
Code 1981, § 10-6A-5, enacted by Ga. L. 1993, p. 376, § 1; Ga. L. 2000, p. 929, § 1; Ga. L. 2024, p. 1052, § 2(51)/SB 448, effective July 1, 2024. Amendments. The 2024 amendment, effective July 1, 2024, part of an Act to revise, modern-
ize, and correct the Code, substituted “however, that” for “however,” in subparagraph (a)(2)(A).
Annotations
JUDICIAL DECISIONS Seller disclosure form provided by agent. - Form disclosure statement provided by a real estate agent to the buyer plainly stating that the representations the statement contained were solely those of the seller was insufficient to form the basis for a claim of fraud because the statement was simply relaying information to the buyer without actual knowledge of the alleged falsity. ReMax North Atlanta v. Clark, 244 Ga. App. 890, 537 S.E.2d 138, 2000 Ga. App. LEXIS 886 (2000). Buyer’s claim against seller’s agents barred because buyer did not exercise diligence. - Buyer’s claim under Georgia Brokerage Relationships in Real Estate Transactions Act, O.C.G.A. § 10-6A-1 et seq., against the sellers’ real estate agent and the employer failed because the buyer did not exercise diligence in determining the boundaries of the property; the buyer could have easily ascertained the actual property lines, and the buyer was unable to recover from the
agents based upon any alleged failure to disclose information. Peacock v. Kiser, 272 Ga. App. 83, 611 S.E.2d 747, 2005 Ga. App. LEXIS 221 (2005). No fraud shown by agent. - Trial court erred in denying a real estate agent’s motion for summary judgment in an action against the agent by the home purchasers, alleging that the agent committed fraud by failing to disclose the defective nature of the home’s septic system as there was no evidence that the broker had actual knowledge of any defect in the septic system, nor that the agent had breached the obligations under O.C.G.A. § 10-6A-5(b)(1); even if the septic system was defective, the agent could not be held liable. Dasher v. Davis, 274 Ga. App. 788, 618 S.E.2d 728, 2005 Ga. App. LEXIS 833 (2005), cert. denied, No. S05C2042, 2006 Ga. LEXIS 59 (Ga. Jan. 17, 2006). Because a purchaser failed to act diligently, the purchaser was unable to recover from real estate agents or a broker
based upon any alleged failure on the agents part to disclose information about property the purchaser bought from sellers under the Brokerage Relationships in Real Estate Transactions Act, O.C.G.A. § 10-6A-1 et seq. Shaw v. Robertson, 307 Ga. App. 337, 705 S.E.2d 210, 2010 Ga. App. LEXIS 1077 (2010), cert. denied, No. S11C0636, 2011 Ga. LEXIS 375 (Ga. Apr. 26, 2011). Plaintiff’s Brokerage Relationships in Real Estate Transactions Act, O.C.G.A. § 10-6A-1 et seq., claim failed as the plaintiff was told of the structural defects, and the defects were discoverable by a reasonably diligent inspection. Atlanta Partners Realty, LLC v. Wohlgemuth, 365 Ga. App. 386, 878 S.E.2d 615, 2022 Ga. App. LEXIS 448 (2022). No breach of duties. - Trial court did not err in dismissing the buyers’ action against a real estate company and a real estate agent because any broker-client relationship between them and the company and the agent that could have been created when the agent executed the first purchase and sale agreement as both the buyers’ agent and the seller’s agent ended when that agreement failed due to a low appraisal, and since the buyers engaged a buyer’s agent, the relationship between the company, agent, and buyers was that of broker-customer; in the absence of a written agreement between them, the duties of the company and the agent were those set out in the Brokerage Relationships in Real Estate Transactions Act, O.C.G.A. § 10-6A-5, and although a broker who was engaged only by a seller owed a buyer, who was a “customer” rather than a “client” under the Act, O.C.G.A. § 10-6A-3(8), certain duties in terms of disclosure of information, the buyers’ complaint did not aver that the company and agent breached any of those duties. Jones v. Bill Garlen Real Estate, 311 Ga. App. 372, 715 S.E.2d 777, 2011 Ga. App. LEXIS 733 (2011). Section imposes no special duties regarding pets. - O.C.G.A. §§ 10-6A-5, 10-6A-14, 43-40-15(a), and 43-40-25(b)(25) and related Code sections fail to impose any duties regarding pets
other than the general duty to exercise reasonable skill and care in performing all duties; thus, a trial court’s summary judgment dismissing claims against real estate agents and brokers for injuries arising from a dog bite while the injured person was viewing listed property for sale was affirmed. Gibson v. Rezvanpour, 268 Ga. App. 377, 601 S.E.2d 848, 2004 Ga. App. LEXIS 925 (2004), cert. denied, No. S04C1918, 2004 Ga. LEXIS 904 (Ga. Oct. 12, 2004). Independent contractor. - Because the home buyers failed to show that a realty company knew of the drainage and flooding issues associated with their property, but instead claimed that the company was liable for negligence or negligent misrepresentation for failure to oversee the sales transaction and failure to oversee the listing agent because the company did not comply with the requirements of O.C.G.A. § 43-40-18 and Ga. Comp. R. & Regs. 520-1-.10(4), the realty company was not liable for the acts of the listing agent as the listing agent was an independent contractor, and the homebuyers failed to present any evidence that the realty company assumed the right to control the time, manner, or method of the work. Walker v. Johnson, 278 Ga. App. 806, 630 S.E.2d 70, 2006 Ga. App. LEXIS 353 (2006), overruled in part, Kleber v. City of Atlanta, 291 Ga. App. 146, 661 S.E.2d 195, 2008 Ga. App. LEXIS 396 (2008). Disclosure of material information. - In an action involving a defect in a home’s septic system, the home buyers’ agent was not entitled to summary judgment on a Brokerage Relationship in Real Estate Transactions Act (BRETA), O.C.G.A. § 10-6A-1 et seq., claim because while notice to the buyers’ agent was notice to the buyers under O.C.G.A. § 10-6-58, a disputed issue existed as to whether the buyers’ agent actually disclosed the information as required by O.C.G.A. § 10-6A-5(b)(1) regarding the second pumping of the septic tank to the buyers. Davis v. Silvers, 295 Ga. App. 103, 670 S.E.2d 805, 2008 Ga. App. LEXIS 1217 (2008).