Real estate broker


A real estate broker, real estate agent or realtor is a person who represents sellers or buyers of real estate or real property. While a broker may work independently, an agent usually works under a licensed broker to represent clients.[1] Brokers and agents are licensed by the state to negotiate sales agreements and manage the documentation required for closing real estate transactions. In North America, some brokers and agents are members of the National Association of Realtors (NAR), the largest trade association for the industry.[2] NAR members are obligated by a code of ethics that go above and beyond state legal requirements to work in the best interest of the client.[3] Buyers and sellers are generally advised to consult a licensed real estate professional for a written definition of an individual state's laws of agency, and many states require written disclosures to be signed by all parties outlining the duties and obligations.

Generally, real estate brokers/ agents fall into four categories of representation:

A real estate broker typically receives a real estate commission for successfully completing a sale. Across the U.S. this commission can generally range between 5-6% of the property's sale price for a full service broker but this percentage varies by state and even region.[4] This commission can be divided up with other participating real estate brokers or agents. Flat-fee brokers and Fee-for-Service brokers can charge significantly less depending on the type of services offered.

Contents

Licensing


In the United States, real estate brokers and salespersons are licensed by each state, not by the federal government. Each state has a real estate “commission” who monitors and licenses real estate brokers and agents. For example, some states only allow for lawyers to create documentation to transfer real property, while other states also allow the licensed real estate agent. There are state laws defining the types of relationships that can exist between clients and real estate licensees, and the lawful duties of real estate licensees to represent clients and members of the public. Rules vary substantially as defined by the law from state to state, for example, on subjects that include what legal language is necessary to transfer real property, agency relationships, inspections, disclosures, continuing education, and other subjects.

In most jurisdictions in the United States, a person must have a license to perform licensed activities, and these activities are defined within the statutes of each state. A main feature of the requirement for having a license to perform those activities is the work done "for compensation". Hence, hypothetically, if a person wants to help a friend out in either selling or buying a property, and no compensation of any kind is expected in return, then a license is not needed to perform all the work. However, since most people would expect to be compensated for their efforts and skills, a license would be required by law before a persons they may receive remuneration for services rendered as a real estate broker or agent. Unlicensed activity is illegal and the state real estate commission has authority to fine people who are acting as real estate licensee, but buyers and sellers acting as principals in the sale or purchase of real estate are usually not required to be licensed. It is important to note that in some states, lawyers handle real estate sales for compensation without being licensed as brokers or agents. However, even lawyers can only perform real estate activities which are incidental to their original work as a lawyer. It cannot be the case that a lawyer can become a seller's selling agent if that is all the service that is being requested by the client. Lawyers would still needed to be licensed as a broker if they wish to perform the licensed activities. Lawyers do however get a break in the minimum education requirements (for example, 90 hours in Illinois).[5]

Specific States Representation Laws


Some state Real Estate Commissions - notably Florida's[6] after 1992 (and extended in 2003) and Colorado's[7] after 1994 (with changes in 2003) created the option of having no agency or fiduciary relationship between brokers and sellers or buyers.

As noted by the South Broward Board of Realtors, Inc. in a letter to State of Florida legislative committees:

"The Transaction Broker crafts a transaction by bringing a willing buyer and a willing seller together and provides the legal documentation of the details of the legal agreement between the same. The Transaction Broker is not a fiduciary of any party, but must abide by the law as well as professional and ethical standards." (such as NAR Code of Ethics).

The result was that in 2003, Florida created a system where the default brokerage relationship had "all licensees ... operating as transaction brokers, unless a single agent or no brokerage relationship is established, in writing, with the customer"[8][9] and the statute required written disclosure of the transaction brokerage relationship to the buyer or seller customer only through July 1, 2008.

In the case of both Florida[9] and Colorado,[7] dual agency and sub-agency (where both listing and selling agents represent the seller) no longer exist.

Other brokers and agents may focus on representing buyers or tenants in a real estate transaction. However, licensing as a broker or salesperson authorizes the licensee to legally represent parties on either side of a transaction and providing the necessary documentation for the legal transfer of real property. This business decision is for the licensee to decide. They are fines for people acting as real estate agents when not licensed by the state.

In the United Kingdom, an estate agent is a person or business entity whose business is to market real estate on behalf of clients. There are significant differences between the actions, powers, obligations, and liabilities of brokers and estate agents in each country, as different countries take markedly different approaches to the marketing and selling of real property.

Written agreement


It is important to have a clear written legal documentation for an agreement between the broker and the client, for the protection of both of them. If the parties only have an oral agreement, it is more likely for a dispute to arise concerning the agreement to represent clients and for how real property being sold. Legal documentation is required to define whether the broker can enforce the parties' compensation agreement, the duration of the relationship, whether the relationship is "exclusive", and other issues. Enforceability of oral agreements, what kinds of legal agreements are required to be in writing, and other important issues vary from state to state.

Real estate education

To become licensed, most states require that an applicant take a minimum number of classroom hours to study real estate law before taking the state licensing exam. Such education is often provided by real estate firms or by education companies, either of which is typically licensed to teach such courses within their respective states. The courses are designed to prepare the new licensee primarily for the legal aspects of the practice of transferring real estate and to pass the state licensing exam.

Once licensed, the licensee in most states is initially designated a salesperson and must work under a broker's license. Some other states have recently eliminated the salesperson's license and instead, all licensees in those states automatically earn their broker's license.

A real estate agent must place their license under a managing broker. Typically there may be multiple licensees holding broker's licenses within a firm but only one broker or the firm itself, is the managing or principal broker and that individual or firm is then legally responsible for all licensees held under their license.

The term agent is not to be confused with salesperson or broker. An agent is simply a licensee that has entered into an agency relationship with a client. A broker can also be an agent for a client. It is commonly the firm that has the actual legal relationship with the client through one of their sales staff, be they salespersons or brokers.

In all states, the real estate licensee must disclose to prospective buyers and sellers the nature of their relationship [10] within the transaction and with the parties. See below for a broker/licensee relationship to sellers and their relationship with buyers.

In the United States, there are commonly two levels of real estate professionals licensed by the individual states but not by the federal government:

The difference between salespersons and brokers


Before the Multiple Listing Service (MLS) was introduced in 1967, when brokers (and their licensees) only represented sellers by providing a service to provide legal documentation on the transfer real property, the term "real estate salesperson" may have been more appropriate than it is today, given the various ways that brokers and licensees now help buyers through the legal process of transferring real property. Legally, however, the term "salesperson" is still used in many states to describe a real estate licensee.

Real estate salesperson (or, in some states, Real estate broker)

When a person first becomes licensed to become a real estate agent, they obtain a real estate salesperson's license (some states use the term "broker") from the state in which they will practice. To obtain a real estate license, the candidate must take specific coursework (between 40 and 120 hours) and pass a state exam on real estate law and practice. To work, salespersons must be associated with (and act under the authority of) a real estate broker. In Delaware, for example, the licensing course requires the candidate to take 99 classroom hours in order to qualify to sit for the state and national examination. In Ohio, a license candidate must complete 120 hours of classroom education. Each successive year thereafter, the license holder must participate in continuing education in order to remain abreast of state and national changes.

Many states also have reciprocal agreements with other states, allowing a licensed individual from a qualified state to take the second state's exam without completing the course requirements or, in some cases, take only a state law exam.

Real estate broker (or, in some states, qualifying broker)

After gaining some years of experience in real estate sales, a salesperson may decide to become licensed as a real estate broker (or Principal/qualifying broker) in order to own, manage, or operate their own brokerage. In addition, some states allow college graduates to apply for a broker's license without years of experience. College graduates fall into this category once they have completed the state-required courses as well. California allows licensed attorneys to become brokers upon passing the broker exam without having to take the requisite courses required of an agent. Commonly more coursework and a broker's state exam on real estate law must be passed. Upon obtaining a broker's license, a real estate agent may continue to work for another broker in a similar capacity as before (often referred to as a broker associate or associate broker) or take charge of their own brokerage and hire other salespersons (or broker), licensees. Becoming a branch office manager may or may not require a broker's license. Some states allow licensed attorneys to become real estate brokers without taking any exam. In some states, there are no "salespeople" as all licensees are brokers.[11]

Agency relationships with clients versus non-agency relationships with customers


Agency relationships in residential real estate transactions involve the legal representation by a real estate broker (on behalf of a real estate company) of the principal, whether that person(s) is a buyer or a seller. The broker and his licensed real estate salespersons (salesmen or brokers) then become the agents of the principal.

Designated agency

The most recent development in the practice of real estate is "designated agency" which was created to permit individual licensees within the same firm, designated by the principal broker, to act as agents for individual buyers and sellers within the same transaction. In theory, therefore, two agents within the same firm act in strict fiduciary roles for their respective clients. Some states have adopted this practice into their state laws and others have decided this function is inherently problematic, just as was a dual agency. The practice was invented and promoted by larger firms to make it possible in theory to handle the entire transaction in the house without creating a conflict of interest within the firm

Types of services that a broker can provide


Real Estate Services are also called trading services [12] by some jurisdictions. Since each province's and state's laws may differ, it is generally advised that prospective sellers or buyers consult a licensed real estate professional.

Some examples:

These services are also changing as a variety of real estate trends transform the industry.

Real estate brokers and sellers


Services provided to seller as client

Upon signing a listing contract with the seller wishing to sell the real estate, the brokerage attempts to earn a commission by finding a buyer and writing an offer, a legal document, for the sellers' property for the highest possible price on the best terms for the seller. In Canada and the United States, most laws require the real estate agent to forward all written offers to the seller for consideration or review.

To help accomplish the goal of finding buyers, a real estate agency commonly does the following:[citation needed]

The listing contract

Several types of listing contracts exist between broker and seller. These may be defined as:

The broker is given the exclusive right to market the property and represents the seller exclusively. This is referred to as seller agency. However, the brokerage also offers to cooperate with other brokers and agrees to allow them to show the property to prospective buyers and offers a share of the total real estate commission.

Exclusive agency allows only the broker the right to sell the property, and no offer of compensation is ever made to another broker. In this case, the property will never be entered into an MLS. Naturally, this limits the exposure of the property to only one agency.

The property is available for sale by any real estate professional who can advertise, show, or negotiate the sale. The broker/agent who first brings an acceptable offer would receive compensation. Real estate companies will typically require that a written agreement for an open listing be signed by the seller to ensure payment of a commission if a sale takes place.

Although there can be other ways of doing business, a real estate brokerage usually earns its commission after the real estate broker and a seller enter into a listing contract and fulfill agreed-upon terms specified within that contract. The seller's real estate is then listed for sale.

In most of North America, a listing agreement or contract between broker and seller must include the following:

Net listings: Property listings at an agreed-upon net price that the seller wishes to receive with any excess going to the broker as commission. In many states including Georgia, New Jersey and Virginia [18 VAC §135-20-280(5)] net listings are illegal, other states such as California and Texas state authorities discourage the practice and have laws to try and avoid manipulation and unfair transactions [22 TAC §535(b)] and (c).

Brokerage commissions

In consideration of the brokerage successfully finding a buyer for the property, a broker anticipates receiving a commission for the services the brokerage has provided. Usually, the payment of a commission to the brokerage is contingent upon finding a buyer for the real estate, the successful negotiation of a purchase contract between the buyer and seller, or the settlement of the transaction and the exchange of money between buyer and seller. Under common law, a real estate broker is eligible to receive their commission, regardless of whether the sale actually takes place, once they secure a buyer who is ready, willing, and able to purchase the dwelling.[13] The median real estate commission charged to the seller by the listing (seller's) agent is 6% of the purchase price. Typically, this commission is split evenly between the seller's and buyer's agents, with the buyer's agent generally receiving a commission of 3% of the purchase price of the home sold.

In North America, commissions on real estate transactions are negotiable and new services in real estate trends have created ways to negotiate rates. Local real estate sales activity usually dictates the amount of agreed commission. Real estate commission is typically paid by the seller at the closing of the transaction as detailed in the listing agreement.

Economist Steven D. Levitt famously argued in his 2005 book Freakonomics that real estate brokers have an inherent conflict of interest with the sellers they represent because their commission gives them more motivation to sell quickly than to sell at a higher price. Levitt supported his argument with a study finding brokers tend to put their own houses on the market for longer and receive higher prices for them compared to when working for their clients. He concluded that broker commissions will reduce in future.[14] A 2008 study by other economists found that when comparing brokerage without listing services, brokerage significantly reduced the average sale price.[15]

RESPA

Real estate brokers who work with lenders can not receive any compensation from the lender for referring a residential client to a specific lender. To do so would be a violation of a United States federal law known as the Real Estate Settlement Procedures Act (RESPA). Commercial transactions are exempt from RESPA. All lender compensation to a broker must be disclosed to all parties. A commission may also be paid during negotiation of contract base on seller and agent.

Lock-box

With the seller's permission, a lock-box is placed on homes that are occupied, and after arranging an appointment with the homeowner, agents can show the home to prospective buyers. When a property is vacant, a lock-box will generally be placed on the front door. The listing broker helps arrange showings of the property by various real estate agents from all companies associated with the MLS. The lock-box contains the key to the door of the property, and the box can only be opened by licensed real estate agents.

Shared commissions with co-op brokers

If any buyer's broker or his agents brings the buyer for the property, the buyer's broker would typically be compensated with a co-op commission coming from the total offered to the listing broker, often about half of the full commission from the seller. If an agent or salesperson working for the buyer's broker brings the buyer for the property, then the buyer's broker would commonly compensate his agent with a fraction of the co-op commission, again as determined in a separate agreement. A discount brokerage may offer a reduced commission if no other brokerage firm is involved and no co-op commission paid out.

If there is no co-commission to pay to another brokerage, the listing brokerage receives the full amount of the commission minus any other types of expenses.

Real estate brokers and buyers


Services provided to buyers

Buyers as clients

With the increase in the practice of buyer brokerages in the United States, agents (acting under their brokers) have been able to represent buyers in the transaction with a written "Buyer Agency Agreement" not unlike the "Listing Agreement" for sellers referred to above. In this case, buyers are clients of the brokerage.

Some brokerages represent buyers only and are known as exclusive buyer agents (EBAs). Consumer Reports states, "You can find a true buyer's agent only at a firm that does not accept listings."[16] The advantages of using an Exclusive Buyer Agent is that they avoid conflicts of interest by working in the best interests of the buyer and not the seller, avoid homes and neighborhoods likely to fare poorly in the marketplace, ensure the buyer does not unknowingly overpay for a property, fully inform the buyer of adverse conditions, encourage the buyer to make offers based on true value instead of list price, and work to save the buyer money. A buyer agency firm commissioned a study that found EBA purchased homes were 17 times less likely to go into foreclosure.[citation needed]

A real estate brokerage attempts to do the following for the buyers of real estate only when they represent the buyers with some form of written buyer-brokerage agreement:

Buyers as customers

In most states until the 1990s, buyers who worked with an agent of a real estate broker in finding a house were customers of the brokerage since the broker represented only sellers.

Today, state laws differ. Buyers or sellers may be represented. Typically, a written "Buyer Brokerage" agreement is required for the buyer to have representation (regardless of which party is paying the commission), although by his/her actions, an agent can create representation.

Education


A person may attend a pre-license course lasting 60 hours and then be tested by the state for a real estate agent's license. Upon passing, the new licensee must place their license with an established real estate firm, managed by a broker. Requirements vary by state but after some period of time working as an agent, one may return to the classroom and test to become a broker. For example, California and Florida require you to have a minimum experience of two years as a full-time licensed agent within the prior 5 years. Where as Indiana only requires one year experience as a real estate salesperson and Arizona requires three out of the prior five years.[17][18] Brokers may manage or own firms. Each branch office of a larger real estate firm must be managed by a broker.

States issue licenses for a multi year period and require real estate agents and brokers to complete continuing education prior to renewing their licenses. For example, California licensees must complete 45 hours of continuing education every 4 years in topics such as agency, trust fund handling, consumer protection, fair housing, ethics, and risk management. Many states recognize licenses from other states and issue licenses to existing agents and firms upon request without additional education or testing however the license must be granted before real estate service is provided in the state.

California does not have license reciprocity with other states. An applicant for licensure is not, however, required to be a resident of California to obtain a license.

In Illinois, the salesperson license was replaced by a broker license in 2011. the new license requires 90 hours of pre-license education, 15 of which must be interactive, and 30 hours of post-license education. The pre-license education requirement includes a 75-hour topics course and a 15-hour applied real estate principles course.[5]

Organizations


Several notable groups exist to promote the real estate industry and to assist members who are in it.

The National Association of Realtors (NAR) is the largest real estate organization and one of the largest trade groups anywhere. Their membership exceeds one million. NAR also has state chapters as well as thousands of local chapters. Upon joining a local chapter, a new member is automatically enrolled in the state and national organizations. When the principals of a firm join, all licensed agents in that firm must also belong. A Realtor is a real estate broker or salesperson who is also a member of the National Association of Realtors, which is an industry trade association. The word "Realtor" is a registered trademark, protected under the US and international law.

The Realtor Political Action Committee (RPAC) is a separate entity, and also the lobbying arm of NAR. In 2005, they were considered the largest PAC in the United States. According to realtor.org, RPAC is the largest contributor to direct contributions to federal candidates.

The National Association of Exclusive Buyer Agents is a group of agents and brokers who work in firms that represent buyers only. They assist in locating exclusive buyer agents for homebuyers through the Web site www.naeba.org.

The National Association of Real Estate Brokers (NAREB) was founded in 1947 as an alternative for African Americans who were excluded from the dominant NAR. Both groups allow members to join without regard to race. However, NAREB has historically been an African American-centric group with a focus on developing housing resources for intercity populations.

The Real Estate Institute of Canada (REIC) was established in 1955 and is a not-for-profit membership organization offering continuing education courses and designation programs for Canadian real estate professionals across multiple sectors.[19][20]

See also


References


  1. ^ "Real Estate Professionals Explained: Agent, Broker, REALTOR®" . Real Estate News and Advice | Realtor.com®. 2014-03-10. Retrieved 2018-12-27.
  2. ^ "About NAR" . www.nar.realtor. Retrieved 2018-12-27.
  3. ^ "2018 Code of Ethics & Standards of Practice" . www.nar.realtor. Retrieved 2018-12-28.
  4. ^ Bankrate.com. "How Much Is Real Estate Agent Commission? | Bankrate.com" . Bankrate. Retrieved 2018-12-20.
  5. ^ a b "FAQs" . www.illinoisrealtors.org. Illinois Realtors. Retrieved August 16, 2018.
  6. ^ "Statutes & Constitution :View Statutes : Online Sunshine" . Leg.state.fl.us. Retrieved 2014-02-10.
  7. ^ a b "Outline of types of representation available in Colorado, including Transaction Brokerage" (PDF). Dora.state.co.us. Retrieved 2014-02-10.
  8. ^ Evans, Blanche (2 July 2003). "FLORIDA IMPLEMENTS DEFAULT TRANSACTION BROKERAGE STATUTE" . realtytimes.com/. Realty Times. Retrieved 2 February 2014.
  9. ^ a b The 2007 Florida Statutes . Chapter 475 Real Estate Brokers — Part I; Real Estate Brokers, Sales Associates, and Schools (ss. 475.001-475.5018), Section 475.278 Authorized brokerage relationships; presumption of transaction brokerage; required disclosures (1) Brokerage Relationships: (a) Authorized brokerage relationships. — A real estate licensee in this state may enter into a brokerage relationship as either a transaction broker or as a single agent with potential buyers and sellers. A real estate licensee may not operate as a disclosed or non-disclosed dual agent ... (b)Presumption of transaction brokerage. — It shall be presumed that all licensees are operating as transaction brokers unless a single agent or no brokerage relationship is established, in writing, with a customer."
  10. ^ "Realtor Code of Ethics - Disclosure" (PDF). Real Estate Association Standards of Business Practice.
  11. ^ "Real Estate Broker's License: Examination and Licensing Application Requirements" . New Mexico Administrative Code. State of New Mexico Commission of Public Records.
  12. ^ "Real Estate Laws Website" . BC Real Estate Laws - Pat 1 Trading Services.
  13. ^ https://www.law.com/newyorklawjournal/almID/1202588713813/Getting-a-Brokerage-Commission-Paid/
  14. ^ Daniel Gross (20 Feb 2005). "Why a Real Estate Agent May Skip the Extra Mile" . The New York Times. Archived from the original on 3 Sep 2016.
  15. ^ B. Douglas Bernheim; Jonathan Meer (13 Jan 2012). "Do Real Estate Brokers Add Value When Listing Services Are Unbundled?" . The National Bureau of Economic Research. Retrieved 3 Sep 2016.
  16. ^ Consumer Reports, May 2005
  17. ^ "Indiana Real Estate License Requirements" . Mortgagenewsdaily.com. Retrieved 2014-02-10.
  18. ^ "Arizona Real Estate Broker's License Requirements" . Re.state.az.us. Retrieved 2014-02-10.
  19. ^ "Professional Recognition of our Programs" . Real Estate Division at Sauder, UBC. January 8, 2019.
  20. ^ "Real Estate Institute of Canada (REIC)" . Thomson Reuters Canada Limited. Retrieved 8 January 2019.







Categories: Sales occupations | Real estate brokers | American real estate brokers | Auctioneers




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