Chapter 6:  Real Estate Brokers 

Real Estate Broker

Definition

1.      A broker is licensed under state law to facilitate real estate transactions in return for compensation (typically commission which is a certain dollar figure or a percentage of the purchase price of the property).

Chapter 6:  Real Estate Brokers 

Real Estate Broker

Governed By

1.      Brokers are governed by federal and state law.

Chapter 6:  Real Estate Brokers 

Real Estate Broker

Licensing

Overview

1.      In most states, a broker first must become a licensed salesperson (or sales associate) and work under a broker for a specified period of time.

2.   Brokers must pass certain courses and pass a state examination.

3.   Coursework and exams usually cover residential and commercial financing, property valuation, real estate investment, leasing of real property, zoning, brokerage office procedures, ethics, handling of escrow accounts, the law of agency, and relevant state and federal laws. 

Chapter 6:  Real Estate Brokers 

Real Estate Broker

Licensing

Overview

1.  In most states, a broker first must become a licensed salesperson (or sales associate) and work under a broker for a specified period of time.
2. Brokers must pass certain courses and pass a state examination. Coursework and exams usually cover residential and commercial financing, property valuation, real estate investment, leasing of real property, zoning, brokerage office procedures, ethics, handling of escrow accounts, the law of agency, and relevant state and federal laws.
3. Continuing education required to maintain license.

Real Estate Broker

Licensing

Law of Agency

Chapter 6:  Real Estate Brokers 

Law of Agency:  Brokers and salespersons are instructed in the law of agency since agency relationships are created between brokers and their salespersons and brokers and their clients.

Brokers operate under a series of contracts

Chapter 6:  Real Estate Brokers

Realtor

Realtor: a real estate licensee who voluntarily becomes a member of a local board of realtors that is affiliated with the National Association of Realtors^®.

Brokers and salespersons cannot use the term realtor on their advertisements, stationary, or business cards unless they are members of their local board of realtors.

Realtors can be called real estate agents but are part of a local or state board.

Realtors are more trained and scrutinized and have a board looking over them.

Chapter 6:  Real Estate Broker

        Real estate agent: a real estate licensee, either a real estate salesperson or real estate broker.

 Real estate agent: a real estate licensee maybe either a real estate salesperson or real estate broker.

Agent: 

The term agent refers to the agency relationship created between brokers or salesperson and their client. 

Authorizes the broker or salesperson to act on the clients behalf and in the clients best interest.

Chapter 6 Real Estate Brokers

Brokerage

    Brokerage:  the name given to the business engaged in by real estate brokers.

Brokerage Firm:  May be a sole proprietorship, general partnership, or a corporation.

Chapter 6:  Real Estate Broker

Multiple Listing Services (MLS)

An organization of brokers who agree to publicize their listings to all other broker members through service.

Multiple listing service (MLS)

• To aid in finding buyers for their listing, many brokers belong to a multiple listing service.
• Each broker who is a member has access to all other listings of all other brokers.
• Information is shared through computerized multiple listing directories.
• Sharing of information helps brokers build an inventory of listings and increases the chance of finding a buyer through help of other brokers who will share the commission.
• Broker must get the consent of seller before listing a property.
• Many broker agreements have a clause where seller agrees to give consent to the mls service.

Chapter 6:  Real Estate Broker

    Role of the Broker

Responsibilities of broker versus attorney

 Brokers are hired for their expertise in marketing real property.

Brokers are allowed by law to make representations regarding the value of a particular property. 

Valuation is made by conducting a competitive market analysis, which consists of a comparison of prices of properties similar to the seller’s property that recently have been sold.

The purchase price must ultimately be set by the seller.

 Brokers are allowed by law to partake in preliminary negotiations and the drafting of documents leading to an agreement between the parties. 

Brokers may draft memoranda, deposit receipts, and in some states contracts for sale and purchase, as long as they do not give legal advice.

Brokers may not give opinion of title or prepare documents effecting the transfer of title; attorneys must do this.

Chapter 6:  Real Estate Broker

Role of the Broker

The broker as agent

Agent:  a person authorized to act on behalf of another.

Principal: the person upon whose behalf an agent is authorized to work.

Unless acting as a transaction broker, a real estate broker is the agent of the person the broker is representing in a real estate transaction, regardless of which party pays the broker’s commission.

Agency relationship also exists between a broker and his/her salespersons.

Chapter 6:  Real Estate Broker

Role of the Broker

The broker as agent

Agency relationship also exists between a broker and his/her salespersons.

Chapter 6:  Real Estate Brokers

Role of the Broker

 Types of agents

Universal Agent

      Universal Agent:

Universal agent: agent who is authorized to conduct any and all transactions of every nature that may be lawfully delegated by a principal. 

A real estate broker or salesperson does not act as a universal agent.

Chapter 6:  Real Estate Brokers

Role of the Broker

 Types of agents

General Agent

 General Agent:

General agent: agent who is authorized to act by a principal in all matters related to a particular business.

Chapter 6:  Real Estate Brokers

Role of the Broker

 Types of agents

Special Agent

A/K/A  Limited Agent

Special Agent:

Special agent: agent who is authorized to conduct a single transaction, or a finite series of transactions not anticipated to be of an ongoing nature.

Broker hired by seller to sell seller's primary residence > Special Agency has formed

Chapter 6:  Real Estate Brokers

Role of the Broker

 Types of agents

Subagent

Subagent:

Subagent: someone who is authorized by an agent to aid in a transaction for a principal if authorized under the original agency agreement. 

Examples: Salespersons are subagents of brokers. 

A subagent also may be another brokerage firm.

Chapter 6:  Real Estate Brokers

Role of the Broker

 Types of agents

Single Agent

Single Agent: 

Single agent: a broker representing only one principal in a transaction. 

Owes fiduciary duties to the principal (duties held by a person in a special position of trust).

Chapter 6:  Real Estate Brokers

Role of the Broker

 Types of agents

Dual Agent

Dual Agent:

Dual agent: a broker representing both the buyer and the seller in the same transaction. 

Some states permit this. 

In states that do, the dual agency arrangement must be disclosed to both parties and consented to in writing by both parties. 

Also, in states that permit dual agency, state law may indicate that the broker owes certain fiduciary duties to the parties.

Chapter 6:  Real Estate Brokers

Role of the Broker

 Types of agents

Transaction Broker

Transaction Broker: 

Transaction broker: a broker who provides limited representation to one or both parties in a real estate transaction and does not represent any one party to the detriment of the other.

States that recognize transaction brokers typically are not considered agents of either party, although certain obligations do exist, such as fair dealing, honesty, disclosure, accounting, diligence, skill and care in conducting the real estate transaction.

Typically, the transaction broker does not owe complete confidentiality and loyalty to any one party.

Chapter 6:  Real Estate Brokers

Role of the Broker

Fiduciary Duties

Fiduciary Duties of the Broker:

When acting in an agency capacity, a broker owes his/her principal the following fiduciary duties.

Fiduciary Duties of the Broker:

Fiduciary duties of the broker: When acting in an agency capacity, a broker owes his/her principal the following fiduciary duties.

Care

Obedience

Loyalty

Confidentiality

Disclosure

Accounting

Chapter 6:  Real Estate Brokers

Role of the Broker

Fiduciary Duties

Fiduciary Duties of the Broker:

Care

Care: exercise of reasonable skill and knowledge in representing the principal in a real estate transaction.  The broker must not bind the principal to actions not specifically authorized by the principal, and the broker may not make unauthorized promises or representations on behalf of the principal.

Chapter 6:  Real Estate Brokers

Role of the Broker

Fiduciary Duties

Fiduciary Duties of the Broker:

Obedience

Obedience: requires a broker to follow all instructions given by the principal as long as those instructions are legal.

The broker must submit all offers and counteroffers. 

If unable to carry out instructions, the broker must withdraw.

A broker may not obey an illegal instruction (such as discriminatory practices).

Chapter 6:  Real Estate Brokers

Role of the Broker

Fiduciary Duties

Fiduciary Duties of the Broker:

Loyalty

Loyalty: requires a broker always to act in the best interest of the principal to the exclusion of all other interests. 

This duty is required of single agents.

The broker must not act in self-interest without the informed consent of the principal.

A broker may not purchase a property listed with the broker for himself/herself directly or for any entity in which the broker has an interest without disclosing the interest and receiving the consent of the seller.

The broker may not sell real property he/ she owns without disclosing his/her interest in the property and the fact that he/she is a broker.

Chapter 6:  Real Estate Brokers

Role of the Broker

Fiduciary Duties

Fiduciary Duties of the Broker:

Confidentiality

Confidentiality: required of single agents;   the broker must preserve the confidences of the principal, as long as it is ethically correct to do so. 

Duty exists both during and after termination of the agency relationship.

Chapter 6:  Real Estate Brokers

Role of the Broker

Fiduciary Duties

Fiduciary Duties of the Broker:

Disclosure

Disclosure:  sometimes referred to as notice.

Requires that the broker disclose all material facts that have a bearing on the real estate transaction.

This duty extends beyond the principal and also are owed to third parties.

The duty includes prohibition of both negligent and intentional misrepresentation to either party in a real estate transaction.

Misrepresentation includes misrepresentation by both commission and omission.

Fraudulent misrepresentation: inaccurate representation made with an intent to mislead or deceive. 

Must show that the statements made by the broker were misrepresentations, the statements were material to the transaction, and the party reasonably relied on the statements to his/her detriment.

Chapter 6:  Real Estate Brokers

Accounting: duty in safeguarding any

Monies,

Documents, or property held by the broker on behalf of the principal.  (keys)

Chapter 6:  Real Estate Brokers

Duties of Principal to the Broker

Duties of the principal to the broker:

Accessibility to the property

Accessibility to the principal for consultation

Compensation in accordance with agreement.  I

If the principal is the seller, the agreement should indicate what constitutes procurement of the buyer to justify compensation to the broker. 

Procurement of a “ready, willing and able buyer” refers both to the buyer’s capacity to contract and the buyer’s financial ability to meet the seller’s price and terms.

Chapter 6:  Real Estate Brokers

Broker’s responsibility for earnest money deposits

Earnest money: a sum paid by a buyer at the time of entering a contract to indicate the buyer’s intention of carrying out the terms of the contract.

Chapter 6:  Real Estate Brokers

Broker’s responsibility for earnest money deposits

Escrow Account

Earnest money deposits must be held in an escrow account

Escrow Account:  an account in a bank, savings and loan, credit union, or similar financial institution that is held by a third party and into which funds are deposited to be held until the happening of a stated event.

Chapter 6:  Real Estate Brokers

Broker’s responsibility for earnest money deposits

Escrow Agent

The broker may act as an escrow agent or may utilize the services of an attorney or title company to act as an escrow agent.

Escrow agents are not required to open separate escrow accounts for each client.

Chapter 6:  Real Estate Brokers

Broker’s responsibility for earnest money deposits

Escrow Account Type

Interest Bearing or Non-Interest Bearing

Escrow accounts can be interest-bearing or non-interest-bearing.  I

If escrow account is interest bearing, a written agreement should specify who gets the interest and under what conditions it is paid.

Commingling of escrow deposits with other business funds is prohibited.

Chapter 6:  Real Estate Brokers

Broker’s responsibility for earnest money deposits

Advance Fee Trust Account

Advance fee trust account: a special escrow account in which advance fees paid to a broker are deposited. 

These fees may be used for advertising and other expenses incurred in marketing real property. 

Some states allow advance fees to be deposited in the common escrow account.

Brokers are not required to handle these trust accounts unless they are asking for advance fees.

Advance fees are not to be used to cover the broker’s normal overhead expenses.

Chapter 6:  Real Estate Brokers

Broker’s responsibility for earnest money deposits

Monthly Statements for Escrow and Advance Fee Accounts

Brokers handling the above accounts are required by state law to keep records of monthly statements comparing the broker’s trust liability with the reconciled bank balances of all escrow and trust accounts.

State statutes outline the steps to be taken by a broker faced with conflicting demands for escrow deposits.

Chapter 6:  Real Estate Brokers

Brokers Compensation

Only licensed real estate brokers and real estate salespersons (also known as sales associates) are entitled to commissions.

They may share commissions with other licensed real estate brokers and real estate salespersons.

Commission is negotiated between the broker and the seller or buyer.

If broker is representing the seller, the commission is stated in the listing agreement (a contract between a seller and a broker).

Typically, commission is computed as an agreed-upon percentage of the purchase price of the property.

Chapter 6:  Real Estate Brokers

Brokers Compensation

The date the commission is earned may be different from the date it is paid.

The date earned is crucial because it becomes a legal obligation at that time and the commission may be required to be paid even if the sale is never completed.

The agreement between the broker and the principal indicates when the commission is earned. 

Typically this occurs once the broker finds a ready, willing, and able buyer or when the broker effects a sale by obtaining a contract signed by both parties.

Chapter 6:  Real Estate Brokers

Antitrust Laws

Sherman Act

Brokers must abide by antitrust laws

Antitrust Laws:  laws protecting against unlawful restraints in trade and commerce including the Sherman Act

Sherman Act: a federal antitrust law protecting against unlawful restraints in trade such as price-fixing.

Allocation of markets is also prohibited.  This occurs when two or more brokers agree to assign different market sectors based on criteria such as geographic location or property price ranges.

Chapter 6:  Real Estate Brokers

Types of Listing Agreements

Open Listing

Open listing: the granting of a nonexclusive right to solicit and receive offers on the seller’s real property. 

Chapter 6:  Real Estate Brokers

Types of Listing Agreements

Exclusive Listing

Exclusive listing: a listing agreement in which the seller agrees to list the property with no broker other than the listing broker for the term of the agreement.  As an exclusive agent, the listing broker is entitled to receive compensation if the listing broker or any person other than the seller procures a buyer within the listing term.

Chapter 6:  Real Estate Brokers

Types of Listing Agreements

Exclusive-Right-to-Sell Listing

Exclusive-right-to-sell listing: a listing agreement in which the listing broker is entitled to a commission if anyone (including the seller) procures a buyer within the listing term.

Chapter 6:  Real Estate Brokers

Types of Listing Agreements

Net Listing

Net listing: a listing agreement in which the seller specifies the net amount of money that he/she must receive in order to sell the property. 

Under the terms of the agreement, the broker receives any monies in excess of this specified amount as commission.