PRESENTED    BY  Peggy Santmyer
The purpose of the course is to addressthe regulatory aspects of theManagementOperationSupervisionof a real estate brok...
A working knowledge of The Law of Agency Planning and organization of business  entities Requirements for written polic...
   The Texas Real Estate License Act is Chapter    1101 of the Texas Occupations Code   The Texas legislature has empowe...
Section 535.2 of the TREC Rules require the  following to take the 6 hour course as a part  of their 15 hour MCE A broker...
   Buying, Selling or Leasing Real Estate for    another with the expectation of receiving    something of value constitu...
 Individual Partnership Corporation LLC Any   other legal entity
   Sells, exchanges, leases, purchases real    estate for another   Offers or negotiates any of the above   Deals in op...
   An individual with an active Texas    Broker’s License designated by a    business entity (licensed by TREC) to act   ...
   A person who is associated with a    licensed broker for the purpose of    performing real estate brokerage
   Residential or Commercial Sales   Residential or Commercial Leasing and    Property Management, International Selling...
   Can any salesperson be    knowledgeable enough to work in all    of those various fields??   Can any sponsoring broke...
Does Broker liability increase when their sponsored licensees attempt to work in areas of the real estate business that th...
How many real estate specialties can the average broker have the knowledge & experience to train and monitor agents??Is it...
   A broker is required to advise a sponsored    sales person on the scope of their authorized    activities. Trec Rules ...
   A sponsoring broker should create    competency standards required before a    supervised licensee can enter into spec...
   Is a new licensee capable of selling a    downtown high rise office building?   Do new licensees need assistance with...
A broker :  must have written policies to ensure  the competency of their salespeople  within the scope of their practice...
 Sponsoring Brokers may find it  prudent to require a background  check of all employees of the broker  and all employees...
 Thereare no regulations regarding recruiting licensees from other sponsoring brokers.
   A salesperson represented a buyer in the    purchase of a condominium. The buyer told    the salesperson they could no...
   The sponsoring broker was the respondent in    a TREC complaint   The broker was found guilty of having failed    to ...
   The Law of Agency and the Texas Real    Estate License Act govern the relationships    between clients and brokers.  ...
 The relationship requires the consent  of both parties to establish. The consent can happen in writing or  orally or by...
 Agency  by Actual Authority Agency by Ostensible  Authority Agency by Ratification
   Created by an express written or oral    contract between the parties.   The contract can obtain some express    auth...
 Agency  by Ostensible Authority is formed when the principal causes a third party to believe someone is their agent even...
 Agency by Ratification is also known as Agency After the Fact. It happens when the principal allows the agent to act, ev...
   Real estate licensees are sometimes sued by    parties in a transaction for the following    alleged liability for:  ...
General Agency An ongoing relationship Many transactions Broker to Agents Property ManagersSpecial AgencyA  one time ...
 The relationship between a broker and their  sales-agents is general agency. It is on going. The principal (Broker) is ...
   The relationship between the broker and the    sales client is usually special agency. It is for    one transaction. ...
Special Agency                General AgencyBroker Can Not Bind Client   Sales-Agent Can BindOne Time Transaction         ...
The agent (broker) acts as a fiduciary for the client. The agent owes the client: Trust Honesty business dealings Confi...
   The license act gives any licensee or not for    profit real estate board the right to use    information regarding sa...
A   person with Aids or HIV illness  is handicapped according to the  Fair Housing Laws. Section 1101.556 of the License...
 Under the license act a licensee does  not have to disclose death in a  property because of natural  causes, suicide or ...
 Section  62.056(e) of the Code  of Criminal Procedure says  that the licensee has no duty  to disclose registered sex  o...
 Performance Loyalty Reasonable   Care Accounting   for All Monies
 The Broker, as the agent, will use their  best efforts and diligence to market  the property according to the  principal...
   The Broker (and all of the brokers sales    agents) owe the principal 100% loyalty.   When one Broker represents both...
   The duty of loyalty includes the agents full    disclosure to the principal.   TREC Rules require that the licensee  ...
   A broker must ascertain a seller knows    about any appreciation in value before    agreeing to sell the property.   ...
   Protecting the principal from harm requires    the brokers’ competence and expertise.   The broker must avoid any fra...
   Any money collected for a principal must be    promptly remitted or delivered into an escrow    account.   Money belo...
 Performance Compensation Reimbursement Indemnification
The principal is expected to do what ever is necessary to accomplish the purpose of the agency.
 Normally compensation is agreed to in  the Listing Agreement, Buyers’  Representation Agreement, etc. Compensation is e...
 The principal owes the agent  reimbursement for expenses made on  behalf of the principal. Would include minor repairs ...
 The duty arises when the agent, due  to no fault of their own, suffers a loss  while performing duties on behalf of a  p...
   The duty of fidelity is owed to the    principal, however a duty of fairness and    honestly is owed to third parties ...
A broker that represents a buyer may do so under a written or oral agreement.Note: Intermediary transactions require writ...
   A broker is obligated to advise all parties to    have the abstract examined Tx. Occ. Code    1101.652 (b) (29)   If ...
 Fees for services provided Works well for buyers and sellers that  want to do part of the research, etc Rebates to buy...
A broker who represents a party must:Inform their client of material information including offers on the propertyPresent...
   The law states that a broker that represents    both the buyer or tenant and the owner or    landlord in a transaction...
 If the Listing Agreement and  Buyer/Tenant Agreement give the  Broker the right to appoint two  different agents to assi...
Much more complicated transactions  than a sales transaction.Brokers contract with vendors for  service to maintain or rep...
   If a vendor relied on the fact he believed the    agent was acting under authority from the    principal/owner the pri...
   Can be by an agreement of the parties   Can be by one party if it is for just cause      Either party may be exposed ...
   Improper creation of agency was a part of    several TREC hearings last year.   Buyer ask agent to prepare an offer o...
The salesperson was found guilty of  failing to establish a proper  intermediary relationship and failing  to instruct pur...
 Many   Licensees like to work under  legal entities for liability  protection and for tax purposes. The choice should b...
   If an entity is to receive real estate    commissions the entity must be licensed by    TREC.   The entity must desig...
 If the designated officer owns less  than 10% of the entity the entity  must obtain and maintain errors and  omissions i...
 Corporations Partnerships    General Partnership    Limited Partnership Limited   Liability Companies
 Chartered by the State of Texas Owned by shareholders Operated by officers Structured by bylaws S Corp pays no tax a...
General partnership   All partners have liability for the debts of the    partnership   A written agreement is recommend...
 Articles of incorporation are filed with  the Secretary of State Limited liability for the members Taxes passed throug...
   Section 532.2 of the TREC Rules require    brokers to maintain written policies and    procedures addressing:   The r...
 A contract between the broker and the  insurance company Policies need to be scrutinized to  determine exclusions and o...
   Brokers need to address:   Broker/agent safety   Client safety   Cell phone use   Computer use   Checklist for of...
   It is a crime for an unlicensed person to    engage in any activity that requires a real    estate license.   The lic...
   Part of the license act says that assisting to    find buyers, sellers or properties requires a    license. No telemar...
 Unlicensed assistants must refer all  questions about the property to the  licensee Unlicensed persons can train, motiv...
   Single family residence is a single family    home, condo, townhouse.   Does not include a duplex, triplex, 4 plex   ...
   Make sure all licensees keep their license    active.   Determine the extent to which unlicensed    assistants are be...
   TREC Rules say that the broker or    salesperson may not place an ad that    in any way indicates someone other    tha...
 Ifthe assumed name or the corporate name of the Broker contains the name of a salesperson, the ad must also contain eith...
   If a Broker Associate sponsors sales    agents, does the company E&O cover them?   How will the Team or Group be    c...
   Good marketing opportunities but include    risk such as defamation or copyright    infringement   If broker is unsur...
   A false statement made to others either in    writing (libel) or spoken (slander) that harms    another’s reputation....
   When a broker becomes incapacitated by    illness or dies suddenly the entire company is    put on inactive status unt...
   A written policy addressing what    happens in emergency situations may    help alleviate client concerns and help    ...
   Property management issues were the    origination of many TREC complaints in    2011.   Many of the complaints inclu...
   Salesperson entered into a property    management agreement with an owner   Tenant sent rent to salespersons home and...
   Salesperson claimed her former broker    allowed her to manage properties    unsupervised and that she did not know it...
   Brokers must retain “executed” copies    of all transaction files (closed or    terminated) for at least 4 years.   F...
   A broker is required to advise a salesperson    of the scope of the salespersons authorized    activities under the Ac...
   Supervision of sponsored agents is a    broker responsibility.   Broker may delegate, in writing, other    licensees ...
   Brokers must maintain all of the above    records in addition to the following for at    least four years from the clo...
   Property Management Contracts   USPAP documents for appraisals   Sponsorship Agreements with the Sales Agent   Brok...
 That in addition to required MCE  classes each sales agent receives  additional training to remain  competent in their a...
   Secure executed copies of all documents in    a transaction   Devise a filing system making files easy to    find   ...
 Have a written policy regarding having  protected access to files, both in office  and out of office. IRS records must ...
Brokers must assure that sponsored agents  comply with TREC Rules regarding  advertising. Brokers need a policy to  demons...
 Section 1101.652b provide that a  licensee may not: Publish an advertisement that  misleads the public Publish an ad t...
 Offer property on terms other that  those authorized by the owner or the  owner’s agent Make misrepresentations or fals...
   If an advertisement promotes a service    provider and the licensee expects    compensation, a disclosure that the    ...
Alicensee may notadvertise they provide TRECapproved classes unlessapproved to offer suchcourses.
TREC Rules 535.154 provides the following  information: Definitions of advertisements:  ◦ Publications, stationery, busin...
   Each page of a website is an    advertisement and must include the    required disclosure.   Advertisements by e-mail...
A licensee may not place advertising that:    Implies the salesperson is responsible     for the brokerage business    C...
 Place an ad that indentifies a  salesperson as a broker Fail to remove advertising when  property is no longer availabl...
   All advertising must clearly and    conspicuously contain the broker’s name    (entity name or individual name)   An ...
 TREC must be notified within 30 days  of a broker starting or stopping the  use of an assumed name Road signs must iden...
 Any ad offering rebates must disclose the terms of the rebate.
   TREC Complaint against a salesperson who    advertised on Craig’s List with 24 ads.   Failed to identify the broker....
   Was created to provide financial stability to    the United States by improving transparency    and accountability.  ...
   Created in 1974 to help consumers shop for    settlement services and eliminate kick backs.   Section 8 of RESPA proh...
   Requires the lender to furnish the buyer    with a Good Faith Estimate of Closing Cost    within 3 days of application...
Disclosure is required when a settlement service provider refers the consumer to a provider with whom the referring party ...
   Section 9 of RESPA prohibits sellers from    making the buyer purchase the Title    Insurance from a particular title ...
   Under TREC Rules §535.148 a licensee may    not receive compensation from someone    other than the person whom the cl...
   A licensee may not enter into a    contract with a service provider to    provide services on behalf of the    service...
   A licensee may not accept compensation from    a service provider ifthe compensation is    contingent on a party in th...
 A broker should maintain a policy related to  transactions in which a licensee is involved in  buying or selling his or ...
Licensees Buying or Selling Their Own Property, TX. Occ. Code 1101.652(a)(3) & TREC Rules §535.144A broker should maintain...
The policy should consider: Does the Brokers’ E& O Policy cover  the transaction? how such property is advertised, disc...
   All monies held by a broker must be in a    trust account of the broker.   Trust Accounts must be in the name of    t...
 Property managers must have at least  one trust account The broker must be able to give an  accounting of any money hel...
   Supervising Licensees have an obligation to    be available to the sponsored    agents, client, customers during norma...
   Covered by several state and federal laws if    they contain solicitation or advertisements.   If a broker is using t...
TREC Broker Responsibility
TREC Broker Responsibility
TREC Broker Responsibility
TREC Broker Responsibility
TREC Broker Responsibility
TREC Broker Responsibility
TREC Broker Responsibility
TREC Broker Responsibility
TREC Broker Responsibility
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TREC Broker Responsibility

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  • TREC Broker Responsibility

    1. 1. PRESENTED BY Peggy Santmyer
    2. 2. The purpose of the course is to addressthe regulatory aspects of theManagementOperationSupervisionof a real estate brokerage business inTexas
    3. 3. A working knowledge of The Law of Agency Planning and organization of business entities Requirements for written policies & procedures Records retention and control Advertising rules and The anatomy of a complaint filed with the Texas Real Estate Commission
    4. 4.  The Texas Real Estate License Act is Chapter 1101 of the Texas Occupations Code The Texas legislature has empowered the Real Estate Commission to enact Rules of the Commission which describe how they intend to enforce the license act. A violation of the Rules is subject to the same sanctions as a violation of the license act.
    5. 5. Section 535.2 of the TREC Rules require the following to take the 6 hour course as a part of their 15 hour MCE A broker that sponsors salespersons A designated broker of a business entity A licensee that is the delegated supervisor of one or more licensees for 6 months of more during the current license term Licensees and employees required by the sponsoring broker to take the course
    6. 6.  Buying, Selling or Leasing Real Estate for another with the expectation of receiving something of value constitutes the practice of brokerage under the Texas Occupations Code 1101.652(a). Acting for the licensees own account does not fall under the definition of brokerage.
    7. 7.  Individual Partnership Corporation LLC Any other legal entity
    8. 8.  Sells, exchanges, leases, purchases real estate for another Offers or negotiates any of the above Deals in options on real estate Aids, offers or attempts to locate properties or purchasers for any of the above Controls the deposit of rent on a single family residential unit Provides opinions of value in the ordinary course of business
    9. 9.  An individual with an active Texas Broker’s License designated by a business entity (licensed by TREC) to act on the entities behalf. Must be an officer of a corporation, manager of an LLC or general partner of a partnership NOTE: If the DO does not own at least 10% of the entity, the entity will be required to have E&O insurance.
    10. 10.  A person who is associated with a licensed broker for the purpose of performing real estate brokerage
    11. 11.  Residential or Commercial Sales Residential or Commercial Leasing and Property Management, International Selling Sale or rental or coastal area property Sale or rental of farm and ranch property Sale or rental of condos and townhouses Sale of vacant land, Short Sales, Foreclosures …. Just to name a few
    12. 12.  Can any salesperson be knowledgeable enough to work in all of those various fields?? Can any sponsoring broker be knowledgeable enough to train and monitor agents in all of those fields??
    13. 13. Does Broker liability increase when their sponsored licensees attempt to work in areas of the real estate business that they are not trained or experienced in???
    14. 14. How many real estate specialties can the average broker have the knowledge & experience to train and monitor agents??Is it risky for a broker to authorize their agents to do things the broker has no knowledge about?
    15. 15.  A broker is required to advise a sponsored sales person on the scope of their authorized activities. Trec Rules 535.2a The broker is responsible for the authorized activities of their agents If the broker permits the salesperson to conduct activities beyond the authorized scope the broker is responsible to those activities too.
    16. 16.  A sponsoring broker should create competency standards required before a supervised licensee can enter into specific real estate specialties. The standards can be in the office manual, the independent contractor agreement, etc The standards might include education or experience in the various specialties.
    17. 17.  Is a new licensee capable of selling a downtown high rise office building? Do new licensees need assistance with completing contract forms? Does a licensee need to know about the Landlord/Tenant laws before offering property management? Should licensees selling Farm and Ranch property be aware of mineral rights and cash crops?
    18. 18. A broker : must have written policies to ensure the competency of their salespeople within the scope of their practice. must ascertain that the licensees are receiving the necessary education to perform the duties of their authorized activities.
    19. 19.  Sponsoring Brokers may find it prudent to require a background check of all employees of the broker and all employees of the licensees that have access to the office and the files. A broker may want to consult with an attorney regarding the implementation of such a policy.
    20. 20.  Thereare no regulations regarding recruiting licensees from other sponsoring brokers.
    21. 21.  A salesperson represented a buyer in the purchase of a condominium. The buyer told the salesperson they could not afford more that $200 a month for association fees. Condo documents were delivered late and showed fees of $323 a month and no one noticed Salesman did not review the HUD and still no one noticed the $323 monthly fees. Continued….
    22. 22.  The sponsoring broker was the respondent in a TREC complaint The broker was found guilty of having failed to monitor and supervise the sales agent The broker was not aware that the transaction involved a condominium or that the salesperson was inexperienced in handling condominium transactions The broker agreed to a reprimand and paid an administrative fee of $1,000.00.
    23. 23.  The Law of Agency and the Texas Real Estate License Act govern the relationships between clients and brokers. Agency relationships can be created in various ways by written or verbal authority. Broker compensation can come from the brokers principal, the other principal in the transaction or the other principals broker as long as all parties are aware and agree.
    24. 24.  The relationship requires the consent of both parties to establish. The consent can happen in writing or orally or by action of the parties. Confidential information obtained, even in pursuit of an agency relationship, may obligate the broker to keep confidential information confidential forever
    25. 25.  Agency by Actual Authority Agency by Ostensible Authority Agency by Ratification
    26. 26.  Created by an express written or oral contract between the parties. The contract can obtain some express authority plus it includes some implied authority Implied authority is the right to perform certain acts on behalf of the principal even though the acts have not been specified in the contract. ie: marketing, advertising, placing signs, etc.
    27. 27.  Agency by Ostensible Authority is formed when the principal causes a third party to believe someone is their agent even though a contract does not exist
    28. 28.  Agency by Ratification is also known as Agency After the Fact. It happens when the principal allows the agent to act, even though the agent is not authorized, and the principal benefits from the agents actions.
    29. 29.  Real estate licensees are sometimes sued by parties in a transaction for the following alleged liability for: Misrepresentation Breach of contract Negligence Slandering title Fraud Expression of an opinion
    30. 30. General Agency An ongoing relationship Many transactions Broker to Agents Property ManagersSpecial AgencyA one time transaction Broker to Sales Clients
    31. 31.  The relationship between a broker and their sales-agents is general agency. It is on going. The principal (Broker) is always responsible for the acts of the agent that is working within the scope of their authorized duties. General agency comes with a wide range of authority. For example an agent can sign a Listing Agreement and bind the broker. If the agent makes a misrepresentation the broker is liable. Note: Property Management Transactions are usually general agency. Broker can bind principal.
    32. 32.  The relationship between the broker and the sales client is usually special agency. It is for one transaction. The agent does not have the authority to bind the client under special agency or to sign anything for the client. In special agency the principal/client has very little control over the agent. Therefore any misrepresentation or other wrongful acts by the broker (or their agents) will result in the broker being liable rather than the client.
    33. 33. Special Agency General AgencyBroker Can Not Bind Client Sales-Agent Can BindOne Time Transaction Broker Property Manager Broker can Bind Owner On Going Transactions
    34. 34. The agent (broker) acts as a fiduciary for the client. The agent owes the client: Trust Honesty business dealings ConfidentialityThe agent must not do anything that is not in the clients best interest.
    35. 35.  The license act gives any licensee or not for profit real estate board the right to use information regarding sales prices or terms for the purpose of facilitating, selling, leasing, financing or appraising real property. This right exist even if there is a confidentiality clause in the contract, unless the disclosure is specifically prohibited by statute. Tx Occ Code 1101.804
    36. 36. A person with Aids or HIV illness is handicapped according to the Fair Housing Laws. Section 1101.556 of the License Act provides that real estate licensees have no duty to inquire or disclose anything regarding Aids or HIV illness.
    37. 37.  Under the license act a licensee does not have to disclose death in a property because of natural causes, suicide or accident unrelated to the property. Nothing in the law address disclosure in the event of murder, accident related to the property or unnatural causes.
    38. 38.  Section 62.056(e) of the Code of Criminal Procedure says that the licensee has no duty to disclose registered sex offenders. Parties can research on the data base.
    39. 39.  Performance Loyalty Reasonable Care Accounting for All Monies
    40. 40.  The Broker, as the agent, will use their best efforts and diligence to market the property according to the principals instructions. Obtain the best price available for the principal. Corresponding duties apply to buyers agents, tenant representatives or landlords’ agents.
    41. 41.  The Broker (and all of the brokers sales agents) owe the principal 100% loyalty. When one Broker represents both the Buyer and the Seller in one transaction, the conflict is resolved by the intermediary relationship as defined by the act. It is important to follow the procedures defined in the act. Loyalty also means the agent will not advance the agents’ interest to the detriment of the principal. This is the essence of the fiduciary responsibility of the agent.
    42. 42.  The duty of loyalty includes the agents full disclosure to the principal. TREC Rules require that the licensee disclose all known information that may affect the principals decision to accept or reject offers and keep the principal informed of all significant information. A broker that puts their own interest above that of the client may face breach of fiduciary duties allegations.
    43. 43.  A broker must ascertain a seller knows about any appreciation in value before agreeing to sell the property. If a broker has more than a 10% interest in the entity purchasing the property it must be disclosed to the seller A broker working on behalf of his spouse, parent or child must be disclosed. TREC Rules 535.144 (b)
    44. 44.  Protecting the principal from harm requires the brokers’ competence and expertise. The broker must avoid any fraud or misrepresentation that would prevent the principal from making sound decisions Standards of conduct concerning reasonable care can be found in the act, in the TREC Rules and in customary practice within the industry.
    45. 45.  Any money collected for a principal must be promptly remitted or delivered into an escrow account. Money belonging to principals my never be commingled with the brokers’ funds. Tx. Occ. Code 1101.652 (b) (10) and (11) A broker or salesperson may never accept an undisclosed rebate, commission or profit on expenditures. Tx. Occ. Code 1101.652 (b) (13)
    46. 46.  Performance Compensation Reimbursement Indemnification
    47. 47. The principal is expected to do what ever is necessary to accomplish the purpose of the agency.
    48. 48.  Normally compensation is agreed to in the Listing Agreement, Buyers’ Representation Agreement, etc. Compensation is earned when the agent produces a ready, willing and able buyer. Compensation is usually payable when the transaction closes.
    49. 49.  The principal owes the agent reimbursement for expenses made on behalf of the principal. Would include minor repairs made to protect the property for an absentee owner Does not include cost of doing business such as marketing, advertising, etc.
    50. 50.  The duty arises when the agent, due to no fault of their own, suffers a loss while performing duties on behalf of a principal For example if the owner misrepresents the condition of the property to the agent causing the agent to make a misrepresentation to a third party, the agent may be entitled to reimbursement for losses.
    51. 51.  The duty of fidelity is owed to the principal, however a duty of fairness and honestly is owed to third parties in the transaction. All parties are entitled to complete disclosure regarding the property. Tx. Occ. Code 1101.652 (b) (3) and (4) All parties are entitled to know who the broker is representing. Tx. Occ. Code 1101.652 (b) (7) Continued….
    52. 52. A broker that represents a buyer may do so under a written or oral agreement.Note: Intermediary transactions require written permission from both partiesA broker can represent a buyer and be paid by the seller or the seller’s agent, paid by the buyer or paid by both. All commission must be disclosed to the principal.
    53. 53.  A broker is obligated to advise all parties to have the abstract examined Tx. Occ. Code 1101.652 (b) (29) If a broker or agent receives a request for a copy of a document by a person that signed the document, the licensee is obligated to return the document. Tx. Occ. Code 1101.652 (b) (28) All licensees when engaging in real estate on their own behalf are obligated to inform anyone in the transaction they are licensed and shall not use their expertise to the disadvantage of any party. TREC Rules 535.144.
    54. 54.  Fees for services provided Works well for buyers and sellers that want to do part of the research, etc Rebates to buyers do not violate the act
    55. 55. A broker who represents a party must:Inform their client of material information including offers on the propertyPresent offers to the clientHelp the client negotiate the offer
    56. 56.  The law states that a broker that represents both the buyer or tenant and the owner or landlord in a transaction must act as an intermediary under the rules in the license act No dual agency in Texas Both parties must agree to allow the broker to be an intermediary. The listing agreement and the Buyer/ Tenant representation agreement are the usual way permission is given.
    57. 57.  If the Listing Agreement and Buyer/Tenant Agreement give the Broker the right to appoint two different agents to assist the two different parties the Broker may do so. The parties must accept the appointments in writing. TAR Notice of Intermediary works well.
    58. 58. Much more complicated transactions than a sales transaction.Brokers contract with vendors for service to maintain or repair the properties. Vendors expect to be paidIf the agent works within the scope of their authority and the vendor knows who the owner is, the agent is normally not liable for the debt. Continued…………
    59. 59.  If a vendor relied on the fact he believed the agent was acting under authority from the principal/owner the principal may still be liable to the vendor under apparent representation however If the agent was acting outside their scope of authority the owner may have a cause of action against the agent If the vendor never knows the identity of the owner, the agent will probably be liable to the vendor for payment. continued…..
    60. 60.  Can be by an agreement of the parties Can be by one party if it is for just cause Either party may be exposed to legal liability if they default under the contract Can be an operation of law ◦ Death or insanity of the principal or the agent ◦ A change in the law making the transaction illegal ◦ Expiration of the agreement
    61. 61.  Improper creation of agency was a part of several TREC hearings last year. Buyer ask agent to prepare an offer on an in house listing. Buyer had not signed a Buyers Rep. Agent had buyer sign IABS and TAR Notice of Intermediary but no Buyers Rep. There was an amendment to the contract later with an additional $12,000 earnest money and some ambiguous language. Continued…..
    62. 62. The salesperson was found guilty of failing to establish a proper intermediary relationship and failing to instruct purchaser they should seek legal advise before signing the amendment.Agent agreed to: $2500 administrative penalty Reprimand
    63. 63.  Many Licensees like to work under legal entities for liability protection and for tax purposes. The choice should be made only after consultation with both legal and tax consultants.
    64. 64.  If an entity is to receive real estate commissions the entity must be licensed by TREC. The entity must designate an individual broker to be responsible for the actions of the entity as a licensee. The designated broker must be An officer of the corporation A manager of the limited liability company or A general partner of the partnership
    65. 65.  If the designated officer owns less than 10% of the entity the entity must obtain and maintain errors and omissions insurance in the amount of $1million. Legal entities(including individuals) can do business under an Assumed Name. Must file the assumed name with TREC. Can use the TREC dba form.
    66. 66.  Corporations Partnerships General Partnership Limited Partnership Limited Liability Companies
    67. 67.  Chartered by the State of Texas Owned by shareholders Operated by officers Structured by bylaws S Corp pays no tax at the Corporate Level C Corp pays tax at both the Corporate and individual level
    68. 68. General partnership All partners have liability for the debts of the partnership A written agreement is recommended but not required.Limited partnership Filed with the Secretary of State LP or LLP after it’s name The partners have a Partnership Agreement Must have a General Partner that accepts liability
    69. 69.  Articles of incorporation are filed with the Secretary of State Limited liability for the members Taxes passed through to the members No requirement for a general partner An individual broker who is a manager is needed for the LLC to get a real estate license
    70. 70.  Section 532.2 of the TREC Rules require brokers to maintain written policies and procedures addressing: The relationship between the broker and the agents Competency of agents Compensation issues Maintenance of trust accounts and business records
    71. 71.  A contract between the broker and the insurance company Policies need to be scrutinized to determine exclusions and other coverage issues Most E&O policies require timely and complete disclosure of any potential claim
    72. 72.  Brokers need to address: Broker/agent safety Client safety Cell phone use Computer use Checklist for office personnel Listing and contract files Copyright and license obligations Other risk management issues broker thinks is needed
    73. 73.  It is a crime for an unlicensed person to engage in any activity that requires a real estate license. The licensee that employs the unlicensed person can be charged with a crime and penalized by TREC Real estate brokerage activities must be for another person or entity and done with the expectation of receiving something of value
    74. 74.  Part of the license act says that assisting to find buyers, sellers or properties requires a license. No telemarketing Can sit on an open house as host/hostess but must take care not to “show the property” Can set up appointments for the licensee Can open the property (not show the property), put up signs, write ads,etc Must identify themselves as “unlicensed” continued……
    75. 75.  Unlicensed assistants must refer all questions about the property to the licensee Unlicensed persons can train, motivate licensees but can not assist with any real estate activity to buy, sell or lease property. Cannot review contracts May not direct or supervise agents A person who controls the collection of rent on a single family residence must have a real estate license
    76. 76.  Single family residence is a single family home, condo, townhouse. Does not include a duplex, triplex, 4 plex unless a single unit is what is owned One who controls rent is someone that a. Has the authority to use the rent money for management of the property b. Has the right to deposit the rent checks or withdraw money from that account
    77. 77.  Make sure all licensees keep their license active. Determine the extent to which unlicensed assistants are being ask to do activities that may require a real estate license according to TREC Rules Establish written rules describing for agents and unlicensed assistants what the unlicensed person can and cannot do.
    78. 78.  TREC Rules say that the broker or salesperson may not place an ad that in any way indicates someone other than the broker is responsible for operation of the brokerage.All advertising must contain the name of the broker (may be an individual name, entity name or assumed name registered with TREC)` continued…..
    79. 79.  Ifthe assumed name or the corporate name of the Broker contains the name of a salesperson, the ad must also contain either (a) The individual name of the designated officer or (b) Another assumed name of the broker Groups and Teams that contain the name of a salesperson must also advertise including the name of the broker If a corporate name includes the name of a salesperson the D.O. name must also be included in any advertising
    80. 80.  If a Broker Associate sponsors sales agents, does the company E&O cover them? How will the Team or Group be compensated? Are all the assumed names registered with TREC? Is the brokerage name included in all advertising?
    81. 81.  Good marketing opportunities but include risk such as defamation or copyright infringement If broker is unsure of a statement he/she can list it as an opinion. Once on the web it is there forever. If others comment on a brokers blog or website the broker should make a disclaimer that some of the comments are from others and give contact information to have comments removed.
    82. 82.  A false statement made to others either in writing (libel) or spoken (slander) that harms another’s reputation. If a licensee is a victim of defamation he/she should ask the publisher to remove the statement or ask for a retraction. If a licensee is harmed and has evidence of the defamation they may have the right to sue for damages Licensees must be cautious about making false statements about others.
    83. 83.  When a broker becomes incapacitated by illness or dies suddenly the entire company is put on inactive status until they are able to locate a new broker. If the sponsoring broker is a legal entity the entity must find a new D.O. to continue operations. If the sponsoring broker is an individual the agents each must find to new broker to continue their business. Continued…..
    84. 84.  A written policy addressing what happens in emergency situations may help alleviate client concerns and help the firm meet regulatory requirements and continue operations.
    85. 85.  Property management issues were the origination of many TREC complaints in 2011. Many of the complaints included: *Inadequate supervision by the broker. *Lack of knowledge the agent was doing property management. *Improper record keeping. continued…..
    86. 86.  Salesperson entered into a property management agreement with an owner Tenant sent rent to salespersons home and she deposited into her checking account and did not send the owner what was due Owner contacted broker and broker immediately paid the owner the amount due. The broker had a written policy forbidding agents from doing property management. Broker had no knowledge of the property management agreement. Continued….
    87. 87.  Salesperson claimed her former broker allowed her to manage properties unsupervised and that she did not know it was not acceptable. She paid the owner all funds due and ceased all property management activity She agreed to a one year suspension of her license probated for one year, additional education and a $2400 administrative fee.
    88. 88.  Brokers must retain “executed” copies of all transaction files (closed or terminated) for at least 4 years. Files can be kept electronically but broker must be able to reproduce and/or transmit as requested.
    89. 89.  A broker is required to advise a salesperson of the scope of the salespersons authorized activities under the Act. A broker is responsible for the authorized acts of their sponsored sales agents. If the broker allows the sales agent to do things outside of the authorized activity, the broker is also responsible for those acts Authorized acts can be included in the independent contractor agreement and reviewed periodically.
    90. 90.  Supervision of sponsored agents is a broker responsibility. Broker may delegate, in writing, other licensees to assist in administering compliance with the Act and the Rules.
    91. 91.  Brokers must maintain all of the above records in addition to the following for at least four years from the closing or termination of the contract: Disclosures Commission Agreements Work Files Contracts and Related Addenda Receipts and Disbursements Related to the File continued…..
    92. 92.  Property Management Contracts USPAP documents for appraisals Sponsorship Agreements with the Sales Agent Brokers Must Also Maintain Written Policies and Procedures to Ensure That: Sales agents maintain current licenses Sales agents receive all money for services subject to the Act through or with the written consent of the sponsoring broker. Sales Agents receive notice in advance of any changes in the Act, Rules, Contracts continued..
    93. 93.  That in addition to required MCE classes each sales agent receives additional training to remain competent in their authorized activities. Sales agents advertising complies with TREC Rules All trust accounts and any consumer money is handled with appropriate controls by the broker.
    94. 94.  Secure executed copies of all documents in a transaction Devise a filing system making files easy to find Keep duplicate disk if hard copies are shredded Be able to convert and/or transmit to TREC if requested Be able to separate transaction files from other files at the end of four years Continued….
    95. 95.  Have a written policy regarding having protected access to files, both in office and out of office. IRS records must be maintained for 7 years. Independent Contractor Agreements must be maintained between the sales agents and the broker. Confidentiality of personal information does not have an expiration date.
    96. 96. Brokers must assure that sponsored agents comply with TREC Rules regarding advertising. Brokers need a policy to demonstrate compliance. Policies might include: How and by whom sales peoples advertising is reviewed How sales people are educated regarding advertising rules How corrections to advertising are documented
    97. 97.  Section 1101.652b provide that a licensee may not: Publish an advertisement that misleads the public Publish an ad that does not identify themselves as a broker or agent Offer to sell or lease without the knowledge and consent of the owner or the owner’s agent Continued….
    98. 98.  Offer property on terms other that those authorized by the owner or the owner’s agent Make misrepresentations or false promises Place a sign on a property without permission of the owner or the owner’s agent
    99. 99.  If an advertisement promotes a service provider and the licensee expects compensation, a disclosure that the licensee may receive compensation is required. Advertisers may not rank service providers unless the ranking is based on disclosed objective criteria.
    100. 100. Alicensee may notadvertise they provide TRECapproved classes unlessapproved to offer suchcourses.
    101. 101. TREC Rules 535.154 provides the following information: Definitions of advertisements: ◦ Publications, stationery, business cards ◦ Signs and billboards ◦ Radio, television and electronic media ◦ Internet, e-mail, social media, networking websites Does not include: Correspondence from licensee to client Information in a virtual office
    102. 102.  Each page of a website is an advertisement and must include the required disclosure. Advertisements by e-mail, discussion groups, text messages and social networking must include the disclosures. If space is limited the ad can contain a link to “TREC Disclosures”
    103. 103. A licensee may not place advertising that: Implies the salesperson is responsible for the brokerage business Causes someone to think someone not licensed is engaged in brokerage. Is inaccurate in a material way Advertising another broker’s listing without permission. Not including the listing broker’s name in the ad Continued…..
    104. 104.  Place an ad that indentifies a salesperson as a broker Fail to remove advertising when property is no longer available Place an ad the create confusion about the use of the property Use a copywrited trade name without authority to do so.
    105. 105.  All advertising must clearly and conspicuously contain the broker’s name (entity name or individual name) An assumed name , registered with TREC, is the broker’s name and can be use in advertising. All assumed names used in advertising must be registered with TREC If the assumed name contains the name of a salesman, the ad must include another assumed name of the broker or the broker’s actual name.
    106. 106.  TREC must be notified within 30 days of a broker starting or stopping the use of an assumed name Road signs must identify the advertiser as a broker or agent If the broker’s name in the ad is at least 50% as large as the largest other contact information in the ad, it will be considered a safe harbor.
    107. 107.  Any ad offering rebates must disclose the terms of the rebate.
    108. 108.  TREC Complaint against a salesperson who advertised on Craig’s List with 24 ads. Failed to identify the broker. Offered properties no longer available Failed to identify the respondent as an agent. Offered unauthorized rebates Ads contained conflicting information Result = $4800 administrative penalty
    109. 109.  Was created to provide financial stability to the United States by improving transparency and accountability. It targets financial reform and ultimately has an affect on real estate.
    110. 110.  Created in 1974 to help consumers shop for settlement services and eliminate kick backs. Section 8 of RESPA prohibits service providers from paying or giving anything of value for referrals of business. Service providers may pay brokers for actual services rendered. Service providers must be cautious of paying for anything for real estate agents. They can purchase advertising from agents at open houses, in news letters,etc.
    111. 111.  Requires the lender to furnish the buyer with a Good Faith Estimate of Closing Cost within 3 days of application and a booklet explaining their cost. The buyer has the right to examine the HUD closing statement one day prior to closing and the HUD statement compares the Good Faith Estimate with the actual closing cost .
    112. 112. Disclosure is required when a settlement service provider refers the consumer to a provider with whom the referring party has an ownership or other beneficial interest.The referring party must give the disclosure at or prior to the time of referral. The disclosure must describe the business arrangement that exists between the 2 providers and give the borrower an estimate of the second provider’s charges.The referring party may not require the consumer to use the affiliated provider (some exceptions)
    113. 113.  Section 9 of RESPA prohibits sellers from making the buyer purchase the Title Insurance from a particular title company as a condition of the sale. The TREC Legal Update says that the decision of which title company to use must be left to a decision of the parties.
    114. 114.  Under TREC Rules §535.148 a licensee may not receive compensation from someone other than the person whom the client represents unless the licensee discloses to the client that the licensee will receive the compensation and obtains the client’s consent. This does not apply to referral fees between licensees.
    115. 115.  A licensee may not enter into a contract with a service provider to provide services on behalf of the service provider in a transaction if the contract is exclusive (prohibits the licensee from offering similar services on behalf of other service providers).
    116. 116.  A licensee may not accept compensation from a service provider ifthe compensation is contingent on a party in the transaction purchasing a contract or service from the service provider. A licensee must use Form RSC-1, Disclosure of Relationship with Residential Service Company, if the licensee (or the brokerage firm) will receive compensation from the residential service company. The compensation to the broker or salesperson may be in any form, whether a one-time payment or a periodic payment under a contract between the broker and the residential service company.
    117. 117.  A broker should maintain a policy related to transactions in which a licensee is involved in buying or selling his or her own property.Items to consider: E&O coverage on such transactions How such property is advertised, Disclosure of the license status in or contemporaneous with the contract, Whether the licensee must be represented by another licensee in the firm when listing property owned by the licensee.
    118. 118. Licensees Buying or Selling Their Own Property, TX. Occ. Code 1101.652(a)(3) & TREC Rules §535.144A broker should maintain a policy related to transactions in which a licensee is involved in buying or selling his or her own property. continued
    119. 119. The policy should consider: Does the Brokers’ E& O Policy cover the transaction? how such property is advertised, disclosure of the license status in or contemporaneous with the contract, whether the licensee must be represented by another licensee in the firm
    120. 120.  All monies held by a broker must be in a trust account of the broker. Trust Accounts must be in the name of the broker and identified as a trust account. Trust Accounts may be interest bearing and broker may retain the interest with clients permission. continued
    121. 121.  Property managers must have at least one trust account The broker must be able to give an accounting of any money held in escrow Keep all records up to date.
    122. 122.  Supervising Licensees have an obligation to be available to the sponsored agents, client, customers during normal business hours. Licensees need to be reminded of the duty to be fair to all parties in a transaction. Licensees must keep clients informed of any significant information that would alter the desire to buy, sell or lease property.
    123. 123.  Covered by several state and federal laws if they contain solicitation or advertisements. If a broker is using this type of marketing need to be aware of and educated about the statutes.

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