(The following questions and answers are provided by Florida Realtors, the state's real estate association. Questions about these rulings should be directed to the association's legal department at (407) 436-1409.)
License law
Q: I work as an agent for Brokerage A. I want to take on a second job as an administrative assistant for a broker at Brokerage B. Is that OK?
A: This is a situation that requires extremely detailed consideration, especially with regard to the actions you'll be performing at Brokerage B, the restrictions in your independent contractor agreement with Broker A and the sizable probability of misconception and confusion by members of the public in their view of your authority and position in these different roles.
For this reason, the legal department at Florida Realtors doesn't recommend such employment relationships with different real estate companies, even though it's technically possible (although extremely difficult to perform, in a practical sense) to envision a scenario that would not violate Florida law. Technically speaking, if you're not practicing any real estate activity at Brokerage B, there's nothing prohibiting this type of arrangement in your ICA or office policy with Brokerage A. If you're able to create a clear understanding with members of the public as to what unique capacities you're engaged in with regarding each employer, you would not be in violation of Florida law for this activity.
Q: A property developer wants me to manage properties for his beachside residential apartment building, which has 120 units. He previously had a professional management company assisting in the building management, but due to economic conditions, the developer is looking for an alternative manager. I've never tackled something of this size, but I think I'm up to the challenge. I don't have a Community Association Management license. Do I need one for a building this size?
A: Many people mistakenly believe the trigger for mandating a CAM license has to do with the complexity of a management situation. That's not entirely accurate. In this example, there's no mention of an association. If the developer wholly owns the apartment building and no association is involved with it, there is no legal requirement for you to have a CAM license to manage it.
If it is governed under an association and the developer is going to have you manage that association, you would be required to have a CAM license.
That said, some of the things learned in a CAM licensing class may be very useful to you in a complex management situation like the one you describe here, so you may want to consider getting the license regardless.
Q: Do referral fees have to flow through a brokerage company, or can they be paid directly to an associate?
A: Referral fees should flow through the brokerage company to the associate, in accordance with Section 475.42(1)(d),Florida Statutes. Although FREC says that an associate may be paid directly at closing if a broker instructs the closing agent (in a specific writing) to authorize direct payment, FREC has not expanded this to include other situations.
Q: May I share a referral fee with someone who doesn't hold a real estate license?
A: Section 475.25(1)(h), Florida Statutes, prohibits a Florida licensee from paying a fee or compensating someone who doesn't hold a real estate license in Florida or another state.
However, there's a very limited finder's fee exception in Section 475.011(13), Florida Statutes, that permits a property management firm or the landlord personally to pay up to $50 per transaction to an apartment tenant who refers another tenant to live in the same complex.
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.
Brokerage disclosure
Q: I'm a broker representing a buyer purchasing a residential property. I want to be a transaction broker for this buyer. I know that I'm no longer required to provide a Transaction Broker Relationship Notice, but I want my buyer to understand what a transaction broker relationship is. Is it illegal to still provide the buyer with a transaction broker relationship notice?
A: No. the law that required a transaction broker notice to be provided expired in 2008. However, it would not be a violation if the transaction broker notice were still provided.
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 expect to get a listing soon for a 15-acre parcel of agricultural property. Do the "brokerage relationship" disclosure notices of section 475.278, Florida Statutes, have to be provided in this type of listing?
A: No. According to subsection 475.278 (5) (a), Florida Statutes, the real estate licensee disclosure requirements of section 475.278 apply to all "residential sales." 475.278 defines residential sales to include the sale of agricultural property of 10 acres or fewer.
Therefore, the disclosure requirements do not apply to a transaction involving the sale of more than 10 acres of agricultural property.
Advertising
Q: I'm placing an advertisement in the newspaper; do I have to include my telephone number in the ad?
A: No. Rule 61J2-10.025, Florida Administrative Code, does not require that a telephone number appear in the advertisement.
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 recommended 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'm a broker, ordering business cards for my sales associates. What is required to be on licensees' business cards?
A: The business card is a form of advertising. Thus, the information on the business cards must comply with 61J2-10.025(1) and (2), Florida Administrative Code. The business card must include the licensed name of the brokerage firm, and if the licensee's personal name is used, at the very least that person's last name must appear as it is registered with the Florida Real Estate Commission. The card may not include any fraudulent, false, deceptive or misleading information, and it must make clear to reasonable persons that they are dealing with a real estate licensee.
Q: I'm a sales associate. To save money on postage, I'd like to personally deliver my fliers to homeowners' mailboxes. Is this permitted?
A: No. Postal regulations state that "no part of a mail receptacle may be used to deliver any matter not bearing postage, including items or matter placed upon, supported by, attached to, hung from, or inserted into a mail receptacle."
Q: What size must the letters be on my office sign?
A: There is no requirement that the letters be any particular size. Florida Administrative Code Rule 61J2-10.024 included letter size requirements, but the rule was repealed several years ago.
Q: I am a broker who specializes in the sale of gas stations. I want to call gas stations in my area to see if the owners are interested in selling. Do the Do-Not-Call rules apply to businesses?
A: No. The Do-Not-Call rules do not apply to business-to-business calls.
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 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, 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.
Q: I'm having small signs printed to direct prospects to my listings. My brokerage's name is too long to fit on the signs, and larger signs cost a lot more. May I shorten the brokerage's name to fit?
A: No. Rule 61J2-10.025(1), Florida Administrative Code, "all real estate advertisements must include the licensed name of the brokerage firm." Abbreviations aren't allowed.
Q: I'm planning to send a mass mailing to all the homes in the subdivision I farm. Is there a legal requirement that says I must include a disclaimer informing recipients who have already listed their property to ignore the advertisement?
A: No. There is no legal requirement to include any such disclaimer in the advertisement.
Q: I'm placing an advertisement for one of my listings in the local newspaper. The cost is based on the number of lines the advertisement occupies. I'm including my first name in the advertisement but would like to omit my last name because it's very long. May I omit my last name in the advertisement?
A: No. Rule 61J2-10.025(2), Florida Administrative Code, provides: "When the licensee's personal name appears in the advertisement, at the very least the licensee's last name must be used in the manner in which it is registered with the [Florida Real Estate] Commission."