I represented a buyer who had contracted to buy a home from a FSBO seller. The contract did not close because of reasons not related to the property. The buyer decided to continue renting for several years, and we have terminated our broker-client relationship. The owner of the home has now approached me and asked me to list the property. Can I represent the seller under these circumstances?

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.

A prospective buyer emailed me to view a property I listed after seeing my listing on my website. Is there a form I should give him to disclose that I represent the seller?

No, there isn’t a form available for this purpose. Past agency disclosure forms led to misuse and misunderstandings about the nature of those forms and their intended purpose. Don’t confuse this representation disclosure with the written notice about brokerage services.

Verbal or written disclosure of representation is acceptable, but it should be done upon first contact with another party to the transaction or with another licensee representing a party to the transaction. In this scenario, your call or email response will be the first contact with this prospective buyer.

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