Q: I’m a broker-associate who’s involved in a commission dispute with my broker. My broker is refusing to pay me a commission to which I feel entitled. If I notify the Florida Real Estate Commission about this issue, will FREC force my broker to pay me the commission?
A: No. FREC does not resolve commission disputes. A commission dispute between a broker and a sales associate is generally a matter that can be resolved by a civil court. However, the brokerassociate’s independent contractor agreement may require some other form of dispute resolution, such as arbitration or mediation.
Q: I’ve been working with a buyer who’s found a property on which he wishes to make an offer. The buyer wants to give me an escrow check to hold while he submits his offer. When must I place this deposit in an escrow account?
A: The deposit must be immediately placed with a title company no later than the end of the third business day following receipt of the item to be deposited. Saturdays, Sundays and legal holidays shall not be considered business days.
Q: I’m a sales associate and I want to open a real estate corporation. May I be an officer or director of a real estate corporation that I form?
A: A sales associate may be a shareholder of a real estate corporation; however, he or she may not be an officer or director of that corporation. Furthermore, the corporation must have a qualifying broker registered with the Department of Business and Professional Regulation. The qualifying broker of the corporation must be an officer or director of the real estate corporation.
Q: A FREC investigator interviewed me as a witness to a transaction that resulted in a complaint against a broker in my area. I don’t want any trouble, so I cooperated and told the investigator what I knew about the transaction. The broker was suspended and is threatening to sue me for talking to the investigator. May I be sued for being a witness?
A: The Florida Statutes provide that a privilege against civil liability is granted to any witness to an investigation, unless the witness acted in bad faith or with malice in providing such information.
Q: I’m a real estate licensee, and I’d like to place a “For Sale by Owner” sign in my front yard to attract potential buyers and other real estate licensees. I’m not actually planning to sell my house; I just want to market my real estate services to anyone who sees my FSBO sign and calls me. Is this allowed?
A: No. The Florida Statutes warn that licensees must not “advertise any property or services in a manner which is fraudulent, false, deceptive, or misleading in form or content.” A rule in the Florida Administrative Code echoes this point, and FREC may also be able to assert that this type of activity is dishonest dealing under a part of Section 475.
In addition, enticing potential buyers and other real estate licensees to call about your house, which you have no intention of selling, in an attempt to market your services is a violation the Realtor Code of Ethics, promulgated by the National Association of Realtors and adopted by the Florida’s state association. The NAR article advises, in part: “Realtors shall be careful at all times to present a true picture in their advertising and representations to the public.”
Q: A bank has contacted me (a sales associate) and wants me to perform broker price opinions on its bankowned properties. May I be paid directly for performing BPOs?
A: No. If a sales associate is performing a BPO for compensation, this is real estate licensed activity that a sales associate may perform only through his or her registered broker. In addition, Section 475 of the Florida Statutes provides that it’s a violation of real estate licensing law for a sales associate to collect “any money in connection with any real estate brokerage transaction, whether as a commission, deposit, payment, rental, or otherwise, except in the name of the employer and with the express consent of the employer.”
Q: I just received a copy of a desktop appraisal for which the appraiser didn’t inspect the subject property. May a licensed appraiser perform an appraisal without inspecting the property?
A: Yes. The Uniform Standards of Professional Appraisal Practice state that an appraiser may use any combination of a property inspection and documents to identify the relevant characteristics of the subject property. The extent of the inspection process is an aspect of the scope of work, which may vary, based on assignment conditions and intended use of the assignment results. It’s up to the appraiser to determine the degree of inspection necessary to produce credible assignment results for the intended use of the appraisal.
Q: My name is John Johnson but everyone calls me Johnny. May I use Johnny in my advertising? How about my business cards and sign?
A: Business cards and signs are considered advertising. The proper way to use a nickname in advertising is to include it in quotation marks after your first name or first initial. For example: John “Johnny” Johnson or J. “Johnny” Johnson. And any time you use your first name or nickname in any advertising, you must also use your last name as it is registered with the Florida Real Estate Commission.
Q: I represent a buyer who entered into a contract to purchase a residential condominium. The contract includes Section 718.503 (2)’s statutorily required language giving the buyer three days after execution of the contract and receipt by the buyer of the condominium documents to cancel. It has been two weeks since the parties entered into the contract, and the seller has yet to provide the condo documents to the buyer. Now the seller wants the buyer to sign an addendum that says the buyer will only have 24 hours from receipt of the documents to cancel. If the buyer signs this amendment, would it be valid and enforceable?
A: No. The disclosure language set forth in Section 718.503(2) provides “any purported waiver of these voidability rights shall be of no effect.” Therefore, an amendment to a contract where the parties presumably agreed to resolve the time period the buyer has to cancel from the three-day period outlined in the statute to 24 hours would not be enforceable.