This piece is dedicated to all the good folks who are looking for real estate (in Ecuador, but...really--anywhere...) We have been licensees since the seventies, and supervising brokers for decades. We are not agents now!!!
Here at the Coast, Roxanne and I are being bombarded with questions and visits by Gringos who are in love with the Coast, and who are dying to buy into their little piece of Paradise...That's all well and good...BUT...THERE ARE SHARKS IN THE WATER!!!
In Ecuador, there are absolutely no requirements for becoming a "Real Estate Agent". No training, no supervision, no experience, and no ethics!!! Anybody can tell you that he will "show you property, and for that service, he will charge you $100 per day, and SEVEN PERCENT COMMISSION" at closing.
For example, an attorney will write up the real estate sales contract--and you should insist on it! If it is not in writing, it will not happen--everything must be covered.
I am going to copy and paste a very short summary of the responsibilities of a Real Estate Agent to his client. If you run into a person who says "I am not an Agent", then he is telling you that he refuses to be bound by the rules of agency...don't let this happen to you!
Here they are:
As an agent of your client, you must obey their instructions. That's only if their instructions are not illegal and are in accordance with the contract.
An example would be a deal in which you are the agent of the seller. You have two offers to buy their property and they're almost identical in price and contingencies. Your seller instructs you to accept the offer from Agent B without going back to both buyer agents for further offers because your seller "doesn't like Agent A". Though you may feel that it is unfair to Agent A and their buyer, you must obey the instructions of your seller.
As the agent for your client, you must be loyal and keep their best interests ahead of those of any other party, including yourself. How much commission you might make, particularly in competing offer situations, should not be a consideration and would be disloyal to your client.
Though confidentiality is discussed separately, it is also a component of the loyalty piece. Disclosing anything about your client without their express consent would not be in keeping with this loyalty requirement.
In many states the law requires a real estate agent, whether in an "agency" capacity or not, to disclose material facts to their client. Material facts are those that, if known by the buyer or seller, might have caused them to change their purchase or sale actions.
Beyond that, the fiduciary duty of disclosure would include just about any knowledge the agent had that might benefit their client in the process. If working for the buyer, and you knew the seller was in a financially stressed situation, you would disclose that to help your buyer in the negotiation.
Your fiduciary duty of confidentiality means that you do not disclose anything that you learn about your client, their business, financial or personal affairs or motivations. This duty survives closing and lasts forever. Only a court instruction to disclose can relieve you of this duty.
Accounting for all documents and funds in the transaction is a fiduciary duty. Accurate reporting of the whereabouts of all monies pertaining to the transaction and their ultimate disposition is a fiduciary responsibility.
This duty is one to be very careful of. The words "reasonable care" are only finally fully defined in many cases by a judge or jury when it's too late to change your actions. You, as a licensed real estate professional, are expected to have a certain level of knowledge and be able to advise and guide your client through the process without harm.
Whether on the buyer or seller side, you are expected to advise on price, inspections, negotiations, repairs and many other facets of the transaction. If it's not something you're expected to know, you are expected to advise your client in how to get the information.
Know the laws in your state that pertain to when you are an "agent" and when you are not. When you are, know what's required of you and carefully and diligently try to perform accordingly. Don't try to offer advice or services for which you are not qualified, but know that there have been court rulings that indicated the real estate professional should have known where to send the client for the information they needed.
It is said that an agent may not unjustly enrich himself at the expense of his client..remember that!
Also...commissions must be disclosed--from whatever source--remember that!
All owners must be disclosed (especially including your agent)--remember that!
If you feel uncomfortable with an agent--walk away before you get in a contractual situation.
ALL commission agreements must be in writing--remember that! (Agreements not in writing are seldom enforceable)
We have a terrific lawyer whose name we will pass on to those who send us an email. Remember...lawyers do not work free! You should expect to pay a retainer and sign an employment contract.
That said, Rox and I wish all of you folks, looking for the Ecuador Dream, all the best.