I've been studying real estate law lately for personal pleasure and to better understand the process of buying and selling because I happen to be selling right now. I opted to "sell by owner" using the popular site forsalebyowner.com. I opted for a package that includes an MLS number and posting to popular real estate sites.

After pulling the trigger, I find that apparently Idaho state law does not allow the sale of any property without a broker taking on the owner as a "customer". I learned this from a broker who called me. He was sent by forsalebyowner.com and is responsible for creating the MLS number. He quoted Idaho code 54-2086. The part that stands out:

(3) The duties set forth in this section are mandatory and may not be waived or abrogated, either unilaterally or by agreement.

My impression until today was that neither a broker nor an agent was required for any real estate sale. The two parties could open escrow and proceed without them, though it is often advised to have a "real estate attorney" draft and review all documents before you sign them. Indeed, after reading nearly everything on forsalebyowner.com, this impression was reinforced. To the broker's credit, he conceded that Idaho is a bit unique.

Is this broker's claim and cite of Idaho code correct?

  • Isn't this a law that applies to licensed agents? I.e. Licensed agents can't waive their duties. – MSalters Jan 20 '18 at 15:57

The cited law pertains to the regulation of real estate brokers and does not, itself, require the use of any broker. In fact, the preamble reads, in part,

If a buyer, prospective buyer, or seller is not represented by a brokerage in a regulated real estate transaction, that buyer or seller remains a customer, and as such, the brokerage and its licensees are nonagents and owe the following legal duties and obligations...

It goes on to discuss various NON-oblgations of the NON-agents, but authorizes them to charge the "customer" fees for whatever services they do provide. This presumably includes such things as a Multiple Listing Service.

  • So the answer to "Can a person sell his own house in Idaho without any assistance from a broker or agent?" is no? And the answer to "Is this broker's claim and cite of Idaho code correct?" is yes? – 608 Jan 22 '18 at 21:10
  • @fredsbend No. It says "If", meaning it's optional. To my knowledge, and not having actually researched Idaho law beyond what you linked, there is generally nothing preventing a person from selling without a broker or agent. Use a lawyer. The agency's citation of the code was relevant, and self-serving, but not conclusive. You do NOT have to use MLS to "list" your property. – Upnorth Jan 23 '18 at 21:49
  • So, because this broker created the MLS, I become his customer and he must meet these minimum service requirements, and naturally may charge his fee for them too. Is that correct? If I opted to try and sell without an MLS, I would not need this broker's services, correct? Thanks. – 608 Jan 23 '18 at 22:35

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