The following are provided by the legal department at Florida Realtors:
Q: A real estate licensee is disciplined by the Florida Real Estate Commission. What can that person do to get his or her record cleared?
A: Section 455.2255(1), Florida Statutes, states, in part, that a “licensee may petition the department to review a disciplinary incident to determine whether the specific violation meets the standard of a minor violation as set forth in Section 455.225(3).” So, the person should write FREC’s legal department and state his or her case.
Q: Can 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: Can a sales associate perform broker price opinions on its bank-owned properties for the bank? And, can the associate 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 475.42(1)(d), 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 on the employer.”
Q: A buyer makes an offer on a property, but the seller has not accepted it. Can the buyer withdraw his offer?
A: Timing, timing, timing. The answer is yes, the buyer can withdraw, but only before the seller’s acceptance.
Q: Can the seller and buyer agree that the seller will hold the buyer’s earnest money deposit?
A: Yes. The escrow holder is negotiable between the parties.
Q: A sales associate wants to open a real estate corporation. Can that person be an officer or director of that corporation?
A: A sales associate may be a shareholder of a real estate corporation but not an officer or director of that corporation as per Chapter 61J2-5.016, Florida Administrative Code. 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 sales associate switched brokers. Is that person entitled to a commission on a listing that he or she procured and had under contract (but did not close) before he or she left with the former broker?
A: It depends. Generally, the only recourse would be to file a civil lawsuit against the former broker. In determining the agent’s right to be paid, the court could consider the independent contractor agreement between the broker and the sales associate, if one exists. If no such agreement exists, or if the independent contractor agreement is silent on the issue of payment of commissions after termination, the court would consider other evidence such as the broker’s office policy manual, verbal agreements between the broker and sales associate concerning commissions, and past business practices of the broker as well as what is customary in the industry.
Q: In an effort to attract new business, a broker decides to place an advertisement offering a $200 rebate to buyers and sellers. Is this legal?
A: Yes. The Florida Real Estate Commission (FREC) Rule 61J2-10.028(2) provides that a licensee may share brokerage compensation with a party to a transaction as long as full disclosure is given to all interested parties. Furthermore, since the broker will be advertising this rebate, there also is a need to comply with FREC Rule 61J2-10.025, which provides, in part, that real estate advertisements must not be false, fraudulent, deceptive or misleading. The ad should clarify any conditions or limitations that apply.
Q: A client wants to list and sell her mobile home located on a lot she rents from a mobile home park. Can a real estate broker list and sell her mobile home?
A: No. A real estate licensee may sell a mobile home and the land on which the mobile home is located without having a mobile home dealer’s license. Here, since the seller does not own the land, the broker would first need to obtain a mobile home dealer’s license issued by the Department of Highway Safety and Motor Vehicles (DHSMV). Contact information, including application forms required for licensure as a Mobile Home Dealer, can be found at the DHSMV’s Web site located at www.hsmv.state.fl.us.