BIC TIP #1198: Private Is Not Always Meant to Be Private
When is private not really meant to be private? When it comes to material facts. Stephen Long, The Notorious BIC, often gets asked how a listing broker should disclose something the broker knows about a property, especially when the seller has chosen not to disclose it. The answer comes down to one principle: the buyer must receive it in writing, before making an offer.
Your Duty Does Not Depend on the Seller
Sellers in North Carolina have choices on the RPOADS, and a seller may opt not to make representations. Brokers, however, do not get that option. As a broker, you are bound to discover and disclose material facts to potential buyers.
So if you know something material about the property, your obligation stands, regardless of what the seller decides to put on their own disclosure form.
There Is No Form for That
Unfortunately, there is not a dedicated form for broker disclosure of material facts. Stephen sees many agents place this information in the agent-only or private remarks section of the MLS.
That is fine, as far as it goes. A buyer who is working with a buyer’s agent, or who otherwise has access to those remarks, will see it. But not every buyer has an agent, and not every agent passes everything along. Information hidden in private remarks may never reach the person who needs it.
Flag It Publicly
Stephen’s recommendation is to add a note in the public remarks directing readers to “see agent-only remarks” or “see private remarks.” That small flag alerts everyone that there is additional information to look for.
It does not broadcast sensitive details to the world, but it makes sure buyers and their agents know to ask. Many brokers also keep a written disclosure document ready to hand to any buyer or buyer agent who shows interest, and they keep a record of when it was provided.
The Practical Takeaway
Private remarks are a tool, not a finish line. Your rule as a listing broker is to make sure the buyer has the material fact disclosed to them in writing prior to making an offer. Use the private remarks, flag them in the public remarks, document delivery, and check with your broker-in-charge if you are unsure how to handle a particular disclosure.
This BIC Tip is general real estate education for licensees and consumers, not legal, tax, or financial advice. Rules and forms change, so verify current NCREC rules, MLS rules, and standard forms, and consult a North Carolina attorney or qualified professional about your specific situation. See Disclaimers & Disclosures.
