FACTS:                    

Several weeks after taking the listing, the listing agent discovered that the property was in foreclosure, with a trustee sale scheduled in two months.  The listing agent is concerned about the viability of the listing and any disclosure obligations. 

ISSUE:                      

Must the listing agent disclose the pending Trustee’s Sale if the seller declines to do so? 

ANSWER:                

Yes. 

DISCUSSION:         

Both the seller and the listing agent are required to disclose all known material facts, including that the seller may not be able to perform. See A.A.C. R4-28-1101(B).  The disclosure should be made in writing at or before the time a contract is entered into. Even if the seller declines to make the disclosure, the agent is still obligated to do so.

Note, the Notice of Trustee’s Sale does not affect the enforceability of the listing.