In Virginia, real estate agents and brokerages are required to maintain records of communications and documents related to real estate transactions, which may include text messages if they contain material information. These requirements are enforced by the Virginia Real Estate Board under the Virginia Administrative Code (VAC) and related regulations.
1. Record Retention Requirements in Virginia
Retention Period:
Under 18 VAC 135-20-185, real estate brokers must retain all documents and records related to transactions for a minimum of three years from the date of the transaction's closure or the listing agreement's expiration.
Records to Be Retained:
Required records include:
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Contracts, offers, counteroffers, and listing agreements
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Transaction-related disclosures
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Correspondence, including electronic communications (emails and text messages) if they are material to the transaction
2. Inclusion of Text Messages
Material Communications:
Text messages that are considered part of the transaction record include:
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Negotiations, offers, or counteroffers
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Discussions regarding terms, fees, or conditions
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Client instructions or approvals
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Amendments, disclosures, or other transaction-related agreements
These messages must be retained as part of the overall transaction documentation.
Electronic Record Definition:
The Virginia Real Estate Board recognizes electronic communications as part of the “records” that brokers must maintain, as long as they are relevant to a real estate transaction.
3. Methods for Archiving Text Messages
Acceptable Archiving Practices:
Manual Archiving:
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Text messages can be manually exported, saved digitally, or printed and stored with other transaction files.
Automated Tools:
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Brokers can use compliance software designed to capture and archive text messages automatically for efficient record retention.
Centralized Recordkeeping:
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Records, including text messages, must be securely stored and accessible for inspection by the Virginia Real Estate Board for the required retention period.
4. Oversight and Inspections
Audit Authority:
The Virginia Real Estate Board has the authority to audit or inspect a brokerage's transaction records, including electronic communications, to ensure compliance with state regulations.
Broker Responsibility:
Brokers are ultimately responsible for ensuring that all required records, including text messages, are retained for the statutory retention period.
5. Consequences of Non-Compliance
Regulatory Penalties:
Failure to retain required records, including text messages, may result in:
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Fines
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Disciplinary actions, including suspension or revocation of licenses
Legal Risks:
Missing records could lead to legal disputes, claims of misrepresentation, or regulatory violations that increase liability for brokers and agents.
6. Best Practices for Compliance
Establish a Policy:
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Create a brokerage-wide policy requiring all agents to retain material text messages related to transactions.
Use Technology:
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Leverage mobile device management or archiving software to automatically capture and store text messages for the required retention period.
Educate Agents:
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Train agents to identify and retain transaction-related communications, including text messages.
Perform Regular Audits:
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Conduct routine checks to ensure compliance with the brokerage’s retention policy and identify gaps in recordkeeping.
Summary
In Virginia, real estate brokers are required to retain all transaction-related records, including material text messages, for a minimum of three years under 18 VAC 135-20-185. Brokers and agents should treat text messages that pertain to offers, terms, disclosures, and negotiations as part of the official transaction record. Implementing clear policies, using automated archiving solutions, and conducting regular audits can help ensure compliance with Virginia's record-keeping requirements and minimize risks.
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