Here are legal questions and answers from brokers and agents as compiled by Florida Realtors.
Q: I recently opened my own brokerage. In an effort to attract new business, I'd like to place an advertisement offering buyers and sellers who use my services a $200 rebate. 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 you'll be advertising this rebate, you also 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: My real estate license reflects my full legal name, Jane Doe-Smith. However, I'm most commonly known as Jane Doe within the real estate community, and I only recently hyphenated my name legally and changed it on my real estate license. May I continue to use the name Jane Doe in my advertisement?
A: No. Rule 61J2-10.025(2), Florida Administrative Code (FAC), provides that when you use your personal name in an advertisement, at the very least, the last name must be used in the manner in which it is registered with the Florida Real Estate Commission (FREC).
Q: A seller is planning to file a complaint against me with the Florida Real Estate Commission because he is unhappy with the way I handled the sale of his home four years ago. Is there any time limitation for the DBPR/DRE to file an administrative complaint against me?
A: Yes. Section 475.25(5), Florida Statutes , states that "…an administrative complaint against a broker or broker associate must be filed within 5 years after the time of the act giving rise to the complaint or within 5 years after the time the act is discovered or should have been discovered with the exercise of due diligence."
Q: I represent a seller in a transaction. The seller learned after buying the property that it was the site of a murder-suicide years ago. Must this event be disclosed to a prospective buyer even though this murder-suicide did not occur during the seller's ownership of the property?
A: No. Under Section 689.25(1)(b), Florida Statutes, a homicide, suicide, or death that occurred on the property is not a material fact that must be disclosed in a real estate transaction.
Q: I am a sales associate, and customers frequently give me their deposit checks. How quickly do I need to get them to my broker?
A: Chapter 61J2 14.009,Florida Administrative Code, states that you must deliver those checks to your broker or employer no later than the end of the next business day after you received them.
Q: I represent a prospective buyer. The seller is demanding that his attorney be the escrow agent. May the seller make such a demand?
A: Like any other contract term or condition, the choice of an escrow agent is a negotiable item between the parties.
Q: I represent a seller whose lender just filed a foreclosure action. How long does the seller have to exercise his right of redemption?
A: Generally, the owner may exercise his or her right of redemption any time before the clerk files the certificate of sale. However, a later date may be specified in the judgment of foreclosure.
Q: I am a recently married sales associate. I've decided to legally change my name to my married name. Am I required to change my name on my sales associate license?
A: Yes. Rule 61J2-9.007, Florida Administrative Code, provides that when there's been a legal name change, the licensee shall file a request for the real estate license to be reissued in the new name. For a new license to be reissued, a copy of the legal document that legally changed the name (marriage license in this case) must be included in this request.
Q: I became licensed as a sales associate by the DBPR just over a year ago. One of my older colleagues at the office says that makes me eligible to get licensed as a broker. Is this true?
A: No. While that would have been true in 2007, the law was changed in 2008. Section 475.17(2)(b)1, Florida Statutes, now provides that to become licensed as a broker, a person must have held an active real estate sales associate's license for at least 24 months during the preceding five years.
Q: I recently failed my post-licensure end-of-course examination. How long must I wait to retake the exam?
A: According to FREC Rule 61J2-3.020(8)(a), students failing a FREC-prescribed end-of-course examination must wait 30 days from the date of the original exam to retest.
Q: Does Florida law mandate that the real estate closing take place in the county where the real property is located?
A: No. However, many contract for sale/purchase forms include pre-printed provisions indicating where the closing must take place.
Q: I'm a broker who specializes in the sale of businesses and business opportunities. I want to call businesses in my area to see if they're interested in selling. Do the federal Do Not Call laws or regulations apply to businesses?
A: No. The Do Not Call Registry is only for residential telephone numbers.
Q: My buyer made an offer on a property, but the seller has not accepted the buyer's offer. May the buyer withdraw his offer?
A: Yes. The buyer may withdraw; however, his withdrawal must be done prior to the seller's acceptance.
Q: I just received a copy of an appraisal in which the appraiser didn't analyze prior sales of the subject property. Aren't appraisers required to analyze prior sales?
A: Yes. Standards Rule 1-5, USPAP, states that when the value opinion to be developed is market value, an appraiser must analyze all available agreements of sale, options and listings of the subject property current as of the effective date of the appraisal and analyze all sales of the subject property that occurred within the three years prior to the effective date of the appraisal.
Q: I just received a copy of a desktop appraisal for which the appraiser did not inspect the property that is the subject of the appraisal. May a licensed appraiser perform an appraisal without inspecting the property?
A: Yes. The Uniform Standards of Professional Appraisal Practice (USPAP) 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: May I get a flat-fee commission, or can it be based only on percentage of sales price?
A: Commissions are completely negotiable. Therefore, the listing broker and the seller can agree on either a flat fee or one based on a percentage of the sale.
Q: How can I file a complaint with the Florida Real Estate Commission (FREC)?
A: All complaints must be in writing. Although you may write a letter, the Department of Business and Professional Regulation provides a Uniform Complaint Form that is available from various sources, including floridarealtors.com and http://www.MyFloridaLicense.com.
Q: As a broker for a real estate corporation, am I responsible for verifying that my sales associates renew their licenses?
A: Yes. It's the broker's duty to ensure that all broker associates and sales associates hold current licenses. Pursuant to Section 475.25(1)(u) the FREC can discipline a broker if it is determined that he/she "has failed … to direct, control or manage a broker associate or sales associate employed by such broker."
Q: I'm a broker advertising an open house for one of my listings. At the open house, I'm planning to have a $500 cash drawing. Is this legally permissible?
A: No. Games of chance are prohibited under Charter 849, Florida Statutes. A broker who desires to have a cash giveaway at an open house could however do so where the winner is determined on a game of skill.
Q: Since real estate licensees are presumed to be transaction brokers, does that mean that licensees are no longer required to provide the Transaction Broker Notice to buyers and sellers whom the licensee intends to represent as a transaction broker?
A: Yes.
Q: May I, as a broker, directly pay my former sales associates commissions they earned while still with my brokerage? Or do I have to pay them through their new broker?
A: A commission is earned at the time the real estate activity that earns it is performed. Therefore, if sales associates earned commissions while at your brokerage, you are allowed to pay them directly without going through the new broker.
Q: I'm a broker and I manage residential property for a landlord. I've been told that the disclosure requirements of the "Brokerage Relationship Disclosure Act" don't apply to rentals. Is this true?
A: Yes, this is true. The disclosure requirements of the "Brokerage Relationship Disclosure Act" don't apply to the rental or leasing of real property unless, the law states: "an option to purchase all or a portion of the property improved with four or fewer residential units is given …"
Q: I'm a unit owner in a condominium, and I'm having trouble getting my condominium association to answer my questions. I've left numerous phone messages. How can I get them to answer my question?
A: Section 718.112 (2)(a)2, Florida Statutes, provides that "when a unit owner files a written inquiry by certified mail with the board of administration, the board shall respond in writing to the unit owner within 30 days of receipt of the inquiry. The board's response shall either give a substantive response to the inquirer, notify the inquirer that a legal opinion has been requested, or notify the inquirer that advice has been requested from the division. If the board requests advice from the division, the board shall, within 10 days of its receipt of the advice, provide in writing a substantive response to the inquirer. If a legal opinion is requested, the board shall, within 60 days after the receipt of the inquiry, provide in writing a substantive response to the inquiry."
Q: I'm a property manager for a landlord who owns a condominium unit and hasn't been paying his assessments to the condominium association. The tenants just informed me that they had been notified by the association that they must pay their monthly rent to the association until further notice. Can the condominium association do that?
A: Yes. Pursuant to Section 718.116(11),Florida Statutes, if the unit is occupied by tenants and the unit owner is delinquent in paying any monetary obligation due to the association, the association may make a written demand that the tenants pay their future monetary obligations related to the condominium unit to the association. The tenants must do this until the association releases them or they discontinue tenancy in the unit. The association must mail written notice to the unit owner of the association's demand and must, upon request, provide the tenants with written receipts for payments made. Tenants who act in good faith in response to a written demand from an association are immune from any claim from the unit owner.