Yes, it is OK for you to represent the seller in this situation. However, you should make it clear to this new client that you cannot reveal to him any confidential information provided to you by your former client unless that client consents to the release of that information to the seller. While there may be little confidential information obtained from the buyer that would be of interest to the seller, it should be noted that information about material defects in the property is not considered confidential information under the Code of Ethics or the Real Estate License Act. Thus, if you had obtained material information about the property while representing your former buyer client, you would be required to disclose that information to the seller and any subsequent buyer of the property during your representation of the seller.

Nothing in TREC rules prohibits the co-listing of property. However, anyone wishing to co-list property would need to check with their local MLS to verify that co-listing is permitted since it is up to individual MLS boards to decide whether their rules will allow for co-listing. Texas REALTORS® does not have a co-listing form so brokers would need to consult with a private attorney who could draft one for them to address each broker’s obligations, liabilities, division of commission, and any other issues. Additionally, the NAR Code of Ethics provides that they cannot knowingly require a party to pay more than one commission except with their informed consent.

Yes, Texas REALTORS® created the Representation Disclosure (TXR 1417) to allow you to disclose to a party who you represent in the transaction. Don’t confuse this representation disclosure with the written notice about brokerage services, Information about Brokerage Services (TXR 2501, TREC IABS 1-2), which is required unless you know the party is represented by another license holder, the transaction involves a lease of less than one year and a sale is not considered, or the communication occurs at an open house. Such disclosure of representation should be done upon the first substantive communication with another party to the transaction or with another license holder representing a party to the transaction. In this scenario, your call or email response will be the first contact with this prospective buyer, so if verbally disclosed make sure to follow up with the required written disclosure notice.

If a contract is subsequently executed by your seller client and this prospective buyer, a written notation of who you represent will also be provided in the Broker Information section of the TREC contracts.

If the listing agent and seller inadvertently failed to check either box in the “Authorization to Disclose Seller Paying Buyer’s Expenses” Note under Paragraph 5 of the Residential Real Estate Listing Agreement, Exclusive Right to Sell (TXR 1101), the omission can be corrected by using Paragraph E of the Amendment to Residential Listing, Exclusive Right To Sell (TXR 1404). If the listing agent and seller inadvertently failed to check either box in the “Authorization to Disclose Seller Paying Buyer’s Expenses” Note under Paragraph 5 of the or Farm and Ranch Real Estate Listing Agreement, Exclusive Right to Sell (TXR 1201), the omission can be corrected by using Paragraph F of the Amendment to Farm and Ranch Listing, Exclusive Right to Sell (TXR 1422).

Paragraphs E (TXR 1401) and F (TXR 1422) provide a blank section that allows the parties to clarify whether the seller authorizes the broker to disclose that the seller will consider contributing toward a buyer’s expenses, such as buyer’s broker fees or other costs payable by the buyer under a sales contract. This amendment should be signed by the listing agent and seller to properly document the seller’s intent and avoid confusion during marketing and negotiations.