A fiduciary is a person or entity who or which acts on behalf of another and is a role having one of the highest standards known in law.įiduciaries include guardians, trustees, executors, officers, directors, attorneys, and persons acting in an agency capacity, such as real estate agents and agents acting under a “Power of Attorney.” Like all fiduciaries, real estate agents have the duties of undivided loyalty (except in the instance of a dual agency relationship), confidentiality, full disclosure, obedience and the duty to account. The law of agency strictly governs the responsibilities of the agent to the principal, so that a relationship of trust and confidence can be built.

Section 443 of the Real Property Law of the State of New York defines fiduciary duties as requiring reasonable care, undivided loyalty, confidentiality, full disclosure, obedience and a duty to account. “Fiduciary duty” is a critical element of successful day-to-day business operations and interactions in the real estate industry. While it is extremely important for an agent to be responsive and expeditious in an age of instant information, an agent must, at all times, exercise the duty of “reasonable care” and determine whether a certain e-mail or text message contains information that is confidential and not to be shared with another party.įiduciary Duty Under the New York Real Property Law Section 443 The purpose of this article is to highlight to real estate agents, and other fiduciaries alike, that many times without even knowing it an e-mail, e-mail chain, or even a text message to an individual or group, may contain information that was to be held in strict confidence but yet, is inadvertently released to a third party or, even more critical, to an opposing party in a transaction.

Real estate agents must always remember their primary role is that of an agent and that they are a “fiduciary” of their clients, both during and after the agent/client relationship ends.Īs the National Association of Realtors’ Standard of Practice 1-9 points out, “he obligation of Realtors to preserve confidential information (as defined by state law) provided by their clients in the course of any agency relationship or non-agency relationship recognized by law continues after termination of agency relationships or any non-agency relationships recognized by law.” The “duty of confidentiality” is one of the most important duties involving an agent or fiduciary.

Confidential client text messaging