From #FakeBuyerAgents to Smart Disclosures & Information Fiduciaries

IMG_1705The official minutes are now online but they reveal little about the process or substance of the revised Agency Disclosure form in Massachusetts. As cited in complaints to the Attorney General’s Office and repeated follow-up with the Mass Office of Consumer Affairs (see excerpt and image above), the mandatory form was updated by a group of industry insiders who met at the Mass. Association of Realtors.  Here’s our recap of the board meeting nearly five months ago and our vision for an “Agency Revival.”

PUBLIC COMMENT:

Asked if the RE Board had received comments from the Mass. Association of Buyer Agents (MABA) and the attorney Charles Kilb, said no. Said dozens of peers at MABA had collaborated during 1992 – 1993 to shape the original disclosure, and since they could not be here because of the weather wanted to address MABA’s two main concerns:

MABA Talking Points

1. MABA called for a formal, public comment period including a public hearing, so licensees, consumer advocates, as well as buyers and sellers could comment.

There was no response from the RE Board.

2. Graphically the choice of Designated Agency versus Non-Designated Agency now appears to be the focal point of the disclosure and is misleading.  By framing the undivided loyalty of real buyer agency as a negative (non-Designated Agency), the obvious conflict of interest in the cartoon below now appears to be highest good.  Beyond user design, added that lawyers in the buyer agency community believe designated agency is act of fraud because only Agency + Loyalty = Fiduciary.

Opposing Teams

Critique as real estate consumer advocate

Moving from MABA’s talking points to my own, showed exhibitor brochures from real estate tech conferences last week in NYC to make the point that real estate vendors collect so much personal data about buyers and sellers that we can no longer wait until the first point of contact OFFLINE to discuss fiduciary duties. In fact, law schools at both Harvard and Yale are already talking about the role of #InformationFiduciary

See http://bit.ly/GrandTrust (share via social media)

For that reason, the revised agency disclosure form is already obsolete because disclosure needs to be made at first point of digital interaction.

Use new graphic tools, if not AI, to create next generation agency disclosure

When I tried to argue that Designated Agency had become the new anchor point for the disclosure, working group chair Peter Ruffini noted that Designated Agency did not exist in 1992 and 1993 when the original agency disclosure process created a consensus document.  Since it’s controversial “passage”  in 2005, designated agency has become the default setting for mega-brokers.

To make the existing form easier for the public to understand, recommended using explainer videos (see one created later by MABA’s President Ronald Huth) and infographics online or on the back of the agency disclosure. To my surprise, Kimberly Allard-Moccia, an industry member of the RE Board, leaned into that comment and smiled approvingly!

After acknowledging that the committee had been asked to update the form based on the existing law, pointed to the Board to the future. Informed them that the National Association of Realtors will host their annual convention in Boston in November 2018 for the first time ever and we have the opportunity to engage the industry in the process, not just updating an old form, but creating an next generation agency disclosure.

Said Massachusetts was rightly proud of the document we created in 1993 and we can once again create a disclosure process which establishes best practices. Said it’s conceivable that chat bots, using artificial intelligence, could administer an online disclosure that results in a consumer who has truly given informed consent because they’ve been led through an interactive conversation that reveals the implications of agency choices.

Chair Kevin Sears received the comments well, thanked me for insights and suggested that I work with attorney Justin Davidson from MAR to move the conversation into the future.

CLOSURE & VOTE:

Sears asked the board attorney to comment on the past 10 minutes, and he said that the agency disclosure’s task had been to work within the existing context set by statute. “From my perspective as a lawyer, you did what you could; followed all of the steps.” Kilb said, “What I’m hearing here is what you might want to do in the future.”

That caused Sears to call for a motion on the revised draft of the form: “All in fair, say, I. All opposed say, no.”  The form was passed without any opposing votes.

Sears closed by thanking me for my comments and suggested I follow-up directly with attorneys Mike McDonough and Justin Davidson of MAR to explore the ideas I presented.

AGENCY REVIVAL IN THE FUTURE?

Pointing to new AI technology that has the possibility to automate parts of the transaction, suggested to the committee that agency duties will become more important in the future.

“If agents don’t want to be displaced by technology, they need to offer fiduciary level services. That could result in an “Agency Revival” and the disclosure needs to reflect the importance of loyalty — real fiduciary duties — not a conflict of interest that’s been papered over or agency fraud.”

Once again, board member Kimberly Allard-Moccia’s body language was that she was intrigued by the idea.

Posted in Buyer agent, Consumer protection, Designated Agency, Dual Agency Detective, Dump Dual Agency, Investigative Reporting, RE2020, Real Estate Consumer Bill of Rights, RECALL: Real Estate Consumer Alliance, Tech Trends

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