Under TREC’s rules (§535.2), brokers and salespersons need to maintain business records including transaction files. These records must be kept in a retrievable format, whether paper or electronic. Communications between clients or customers may be considered to be part of negotiations and may be important records in a transaction. Therefore, brokers and salespersons should develop protocols for how these communications are retained as part of the business record.
Additionally, brokers and salespersons need to exercise care to avoid any statements in these communications that may be later construed as “misrepresentations” of any type, including but not limited to misrepresentations about the intentions of the client(s) with respect to making or accepting offers.
The agent’s statements in an email need to avoid giving the impression that a “deal is done” or that “a party accepts” an offer or counteroffer unless that is clearly the intention of the client and is supported with documentation such as the proper signatures or initials on the written contracts.
With few exceptions, agents do not have the authority to bind their clients, but they communicate for their clients regarding negotiations. That difference needs to be clearly understood by all those involved in the negotiations.
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