Q: May a broker directly pay a former sales associates commissions they earned while still with his brokerage? Or does he have to pay them through their new broker?
A: If sales associates earned commissions while at one brokerage, the broker is allowed to pay them directly without going through the new broker.
Q: A closing took place over a month ago, and the broker still has not paid the agent the commission. If the agent files a complaint against her broker about this issue with the Florida Real Estate Commission, will FREC force my broker to pay the commission?
A: No. A commission dispute between a broker and a sales associate is generally a matter that must be resolved by a civil court. However, the sales associate’s independent contractor agreement may require some other form of dispute resolution such as arbitration or mediation.
Q: A broker did not pay an agent her commissions so she obtained a civil judgment against him. Even with this civil judgment, the broker still will not pay the agent. Has the broker violated any real estate licensing laws?
A: Yes. If a civil judgment has been obtained against the broker and the broker doesn’t satisfy the judgment within a reasonable time, this is a violation of real estate licensing law. A complaint can be filed with the FREC for violation of Section 475.25(1)(d)1, Florida Statutes.
Q: May a salesperson who has obtained a judgment against his real estate broker for an unpaid commission recover from the Real Estate Recovery Fund?
A: No. According to Section 475.483 (2)(a), Florida Statutes, a person is not qualified to make a claim for recovery from the Real Estate Recovery Fund when the person seeking recovery is a licensed broker or sales associate who acted as a single agent or transaction broker in the transaction that is the subject of the claim. However, a Florida Real Estate Commission complaint for violation of Section 475.25 (1)(d)1, Florida Statutes, could be made when the broker has failed to pay a real estate commission if a civil judgment has been obtained against the licensee and the judgment hasn’t been satisfied in accordance with its terms within a reasonable period.
Q: Are cooperating brokers who procure a buyer entitled to half the overall commission — making their commission always equal to the commission that’s ultimately received by the listing brokerage?
A: No. There is no law entitling a cooperating broker to half the commission received by a listing broker. The cooperating broker is entitled to only the commission amount offered by the listing broker.
Q: A real estate brokerage is considering listing a property for sale that’s particularly hard to sell due to its location. Is the brokerage allowed to charge a higher commission than normal?
A: Yes. Your commission is completely negotiable.
Q: A sales associate changes brokers. Is the agent entitled to a commission on a listing that he procured and had under contract (but did not close) before he terminated the relationship?
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: A broker has an exclusive right of sale residential listing agreement with a seller of a house. Because the seller’s friend bought the house, the seller says he doesn’t have to pay him a commission/brokerage fee. May the broker place a lien on the property?
A: The real estate license law provides that a broker cannot place a lien on a property unless he or she is expressly permitted by contractual agreement with the seller to do so; or he or she is recording a civil judgment rendered by a Florida court.
Therefore, if the listing agreement or any other agreement with the seller does not permit the broker to put a lien on the property, he or she must file a lawsuit against the seller and obtain a judgment, which can then be recorded.
Q: One of an agent’s listings is about to close. The seller asked the agent to give him a portion of my commission at closing. The agent would like to do so but isn’t sure if it’s permissible under Florida’s real estate license law. Is it?
A: Yes. Florida Administrative Code rule, 61J2-10.028(2) provides “[t]he sharing of brokerage compensation by a licensee with a party to the real estate transaction with full disclosure to all interested parties is not considered a violation of Chapter 475, Part I Florida Statutes.”
Q: A salesperson lists a property for a seller. After the closing, the seller refused to pay the commission. May the agent sue for my commission?
A: No. Under Section 475.42(1)(d), Florida Statutes, a sales associate is not allowed to “… commence or maintain any action for commission or compensation in connection with a real estate brokerage transaction against any person except a person registered as her or his employer at the time the sales associate performed the act or rendered the service for which the commission or compensation is due.” Therefore, in order to enforce the listing agreement, the broker would have to file the lawsuit against the seller.
Q: If a broker's license was inactive when the broker procured a listing, is the listing contract valid?
A: No. Section 475.41, Florida Statutes, provides, "No contract for a commission or compensation for any act or service enumerated in Section 475.01(3), is valid unless the broker or sales associate has complied with this chapter in regard to issuance and renewal of the license at the time the act or service was performed."