1. A. Dual agency occurs when:

   1. (1) an associate broker or qualifying broker is agent for both a seller client and a buyer client in the same transaction;
   2. (2) an associate broker is agent for either a seller client or a buyer client, and the agent's qualifying broker is agent for the other client in the transaction; and,
   3. (3) in a transaction where a buyer client and a seller client are each served by different associate brokers in an agency relationship supervised by the same qualifying broker, and the qualifying broker does not choose the designated agency option, both the associate brokers and the qualifying broker are dual agents in the transaction.
2. B. In all situations, a dual agent shall act in the capacity of a facilitator rather than as an exclusive agent of either party to the transaction.
3. C. Prior to writing or presenting offers, a dual agent shall obtain written authority from the buyer client and the seller client in the form of a separate dual agency agreement.

4. D. Information obtained by an associate broker or qualifying broker prior to the time that written authority for dual agency was granted shall not be disclosed to the other party unless required by law or rules or permitted by the client who originally disclosed the confidential information.

   HISTORY OF 16.61.19 NMAC:

   Pre-NMAC History: The material in this part was derived from that previously filed with the State Records Center and Archives under:

   NMREC Rule 18, Agency: Relationship, Disclosure and Compensation, filed 12/17/1991; and

   Rule 18, Licensee Duties: Brokerage Relationships/ Disclosure, filed 4/13/1995.

   History of Repealed Material:

   16 NMAC 61.19, Licensee Duties; Brokerage Relationships/Disclosures (filed 12/17/1996) repealed 1/1/2000.

   16.61.19 NMAC, Brokerage Relationships and Disclosures (filed 11/30/2001) is repealed effective 1/1/2004.

   Other History:

   Rule 18, Licensee Duties: Brokerage Relationships/ Disclosure (filed 4/13/1995) was reformatted, renumbered, and replaced by 16 NMAC 61.19, Agency Relationships/Disclosures, effective 1/31/1997.

   16 NMAC 61.19, Agency Relationships/Disclosures (filed 12/17/1996) was replaced by 16 NMAC 61.19, Licensee Duties, Brokerage Relationships and Disclosures, effective 1/1/2000.

   16 NMAC 61.19, Brokerage Relationships and Disclosures (filed 12/10/1999) reformatted, amended, renumbered, and replaced by 16.61.19 NMAC, Brokerage Relationships and Disclosures, effective 1/1/2002.

   16.61.19 NMAC, Brokerage Relationships and Disclosures (filed 11/30/2001) replaced by 16.61.19 NMAC, Basic Licensee Duties, Disclosure, Brokerage Relationships and Dual Agency Relationships, effective 1/1/2004.

[16.61.19.10 NMAC - Rp, 16.61.19.11 NMAC, 1/1/2004; A, 1/1/2006]