William G. Mullen III is an attorney, broker/owner of Mullen Real Estate Consultants and 2003 president of the North Shore Association of Realtors.

By an overwhelming majority, directors of the Massachusetts Association of Realtors last week approved an initiative to create a comprehensive framework for defining and clarifying agency relationships in real estate practice. It also, in effect, would create additional business models for brokers and consumers.

The proposal would establish guidelines for the practice of designated agency and facilitation, provide disclosures for informed consent regarding the practice of dual agency and require clear written consent from the consumer for subagency to occur on their behalf, and the vicarious liability associated therewith, in real estate transactions.

While the initiative can be summed up in one paragraph, the concepts and intricacies are much more complex and require a great deal of study to fully understand. However, that has not stopped the vocal minority from already attacking the proposal before the vote was even taken.

First, it is change, and for New Englanders, that always comes slowly. But as an attorney, a professional real estate educator and an active Realtor, I believe that this initiative is where the industry should be moving.

The vocal minority has begun to argue that this proposal is bad for the consumer because it creates confusion, that real estate brokers will be allowed to represent two different parties in the same transaction (dual agency) and that it will favor big companies and discriminate against small companies.

For the record, dual agency is currently allowed under Massachusetts law and is one of the most complicated and convoluted concepts that brokers, consumers and the real estate industry face today. Designated agency, unlike the current law, is not so complex that neither the real estate agent nor consumer can grasp the concept. It is designed to allow consumers to have choices in how they desire to work with a broker, and provide clear guidelines on what duties are required of the broker and their agents.

The new proposal would also require consumers to be advised of the vicarious liability they bear when allowing subagency to occur on their behalf, and execute a form acknowledging it was explained to them. The argument that explaining the consumer’s liability to them is bad because it will confuse the consumer completely eludes me. In fact, the real question should be – why is this not required under current law? The consumer must be informed of the liabilities that they take on whenever they enter into a real estate transaction and it is time to stop underestimating their abilities.

Lastly, the David vs. Goliath controversy will be argued. Opponents claim the new initiative discriminates against the small because small companies will not be able to avail themselves to the benefits of designated agency. That is partly true; a two-person brokerage will not be able to practice designated agency. However, they can take advantage of the benefits under the new facilitation model and, much more importantly, they can continue to practice real estate the exact same way they are practicing today. The initiative was specifically designed to add more business models and consumer choices, while at the same time not eliminating any current models practiced today. So, it can be business as usual for the small company.

But before we draw all the battle lines and get caught up in all the rhetoric, the controversy really comes down to a simpler issue.

It’s the difference between law and broker/agent behavior. Currently, the state of the law provides few guidelines and is confusing for the practitioner and consumer alike; it is, in essence, “bad law.” But there is also some “bad behavior” – often on the part of those who find the current law so confusing they dread its application on a daily basis. The new proposal will clarify many agency and non-agency issues alike. It will provide “good law,” i.e., clear and concise guidelines for behavior.

The idea is simple: if we provide “good law” followed up with extensive and continuing education for the real estate practitioner, then “good behavior” will follow.