Legal Corner
RANM REALTOR® Voice | Fourth Quarter 2008
What Does It Mean When We Say New Mexico Is A “NON-DISCLOSURE” State? You are posting your sign in the yard of a new listing when a man stops and inquires about a house that sold in the neighborhood. The house was not your listing, but you know the home’s sale price from the posting on your local MLS. Are you permitted or prohibited from answering his question?
price of a specific piece of property applies to government employees, not to private citizens. Therefore, a broker who is asked for the specific sales price of a piece of property is not violating this New Mexico statute by providing that information. However, a broker may still be prohibited from providing sales price information based on MLS policy, their legal relationship with the client, and/or their contractual obligations.
for the neighborhood or a range of sales prices for the area. The following MLSs have reported selecting the indicated option: the New Mexico Multi-Board, Option 1; the Southwest MLS, Option 2; the Santa Fe MLS, Option 1; the Las Cruces MLS, Option 1. If your local MLS is not listed, please contact them to determine which option they have selected.
The fact that New Mexico is a “non-disUnder Option #2, if you were the listing closure” state (or probably more accurately broker for the propa “partial-disclosure” erty at issue, you may state) has caused a The New Mexico law against releasing the value disclose the sales price considerable amount or sales price of a specific piece of property apof the home without of confusion among violating MLS policy; brokers. Many plies to government employees, not to private however, your legal believe that due to citizens. However, a broker may still be prohibitrelationship with your New Mexico’s status, client and/or your conit is illegal to disclose ed from providing sales price information based tract with your client/ the sales price of on MLS policy, their legal relationship with the customer may prohibit a specific piece of client, and/or their contractual obligations. such disclosure. If you property. While have an agreement with some New Mexico broyour client not to disclose the sales price kers may be wise to refuse to discuss the information to third parties then you may sales price of a specific piece of property NAR advises local MLSs to choose one be in breach of your agreement if you do with a member of the general public, their of two options in NAR’s MLS Policy, so. If you had an agency agreement with rational is erroneously derived; it is not Part Three, Section F, Sub-Section 13 your seller, depending on several factors, this New Mexico statute that prohibits entitled “Use of MLS Information”. you may be bound by fiduciary duties not them from doing so. to disclose the sale price. These two sceOption #1: Use of information from narios would require further legal analysis The New Mexico law that governs this MLS compilation of current listing based on the individual circumstances. issue is NMSA 1978, Section 7-38-4, information, from the association’s entitled “Confidentiality of Information”, statistical report, or from any sold Based on the foregoing, if not listed, which states the following: or comparable report of the associayou should determine to which, if either . . . it is unlawful for the secretary, any tion or MLS for public mass-media employee or any former employee of advertising by an MLS participant the department to reveal to any person or in other public representations other than the secretary, an employee of may not be prohibited. . . . the department, a county assessor or an employee of a county assessor any inforOption #2: Information from MLS mation gained during his employment compilations of current listing inforabout a specific property or a property mation, from statistical reports, and taxpayer gained as a result of a report from any sold or comparable report Over the last six months, it has been the or information furnished the departof the association or MLS may be position of the New Mexico Manufacment or a county assessor by a taxpayer used by MLS participants as the tured Housing Division (MHD) that a or as a result of an examination of basis for aggregated demonstrations real estate licensee may not sell or offer property or records of a taxpayer. of market share or comparisons of to sell a manufactured home unless . . . it is unlawful for any county assesfirms in public mass-media adverthree criteria have been met: 1) the sor or any employee or former employee tising or in other public represenhome sits on a permanent foundation as of a county assessor to reveal to any tations. This authority does not approved by the MHD; 2) the title to person other than county assessors or convey the right to include in any the manufactured home has been deactheir employees or the secretary or an such advertising or representation tivated with the Department of Motor employee of the department any inforinformation about specific properties Vehicles; and 3) the property was being mation furnished by the department which are listed with other particitaxed as real property by the county asabout a specific property or property pants, or which were sold by other sessor’s office. RANM was told by the owner or any other information gained participants (as either listing or MHD that REALTORS® who were during that person's employment about cooperating broker). . . . in violation of this law would be subject a specific property or a property taxto severe penalties and the manufacpayer gained as a result of a report or If your local MLS has selected Option #1, tured homes that REALTORS® were information furnished the department in the scenario above, you may answer the attempting to sell would be red tagged. or a county assessor by a taxpayer or as inquirer’s question regarding the specific The MHD’s position is based on its a result of an examination of property sales price of the home. However, if your interpretation of NMSA 1978, Section or records of a taxpayer. local MLS has selected Option #2, then 60-14-8 which addresses the exception The section goes on to explain the it is against your MLS’s policy to provide to the manufactured housing licensing circumstances under which such informa- the sales price of a specific property if you requirements for real estate licensees. tion may be released. were not the listing broker and if your knowledge of the sales price came from While informing REALTORS® of the As evidenced by the statute, the prohibiMLS information. This does not prohibit MHD’s position, RANM has also been tion against releasing the value or sales you from providing an average sales price
Legal Corner is researched and written by Ashley Strauss-Martin, RANM Legal Hotline and Forms attorney.
option, your MLS has subscribed. The specific option selected, along with other factors discussed, will dictate the appropriate response if confronted with the above presented scenario. Legal Corner provides a limited and general discussion of some, but not all, aspects of issues that is intended but not guaranteed to be accurate as of the date published. This information may become outdated and it is the responsibility of the user to determine if it is current. No summary of the law is a substitute for legal advice with respect to a particular matter. No attorney-client relationship is intended or implied. If legal advice is required, the services of a competent attorney should be obtained. RANM members are cautioned against engaging in the unauthorized practice of law by advising a consumer of legal rights and obligations or by applying the law to particular facts and circumstances. © 2008 REALTORS® Association of New Mexico .
REALTORS® Ability to Sell Manufactured Homes in Great Debate
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challenging the MHD’s interpretation of NMSA 1978, Section 60-14-8. Please watch RANM OnLine News for more information and to keep abreast of future developments in this area.
MVD to Implement New Changes to Policy to Assist in the Deactivation of Manufactured Home Titles Anyone who has sold a manufactured home and has dealt with the New Mexico Motor Vehicle Department (MVD) on this issue knows how frustrating it can be. At the request of and in conjunction with RANM’s Manufactured Housing Task Force, the MVD has drafted a new policy to streamline the process. In early December the MVD announced it would implement the new policy by the end of January, 2009. For details, visit www.nmrealtor.com.