From Florida Realtors
Q: If the listing broker fails to deliver my offer and claims to be doing so at the seller’s direction, may I demand a copy of the seller’s direction?
A: You can make such a demand, but the listing broker has no obligation to provide it to you. If you feel that the listing broker is breaching Section 475.278, Florida Statutes in failing to deliver the offer, you may file a complaint against her with the Florida Real Estate Commission (FREC), and a Department of Real Estate investigator will investigate the issue and then determine whether a violation has occurred.
Q: I’m representing a buyer in a residential short sale transaction. We prepared an offer and submitted it to the listing broker. It was a great offer, where the buyer agreed to pay the asking price due to the property’s high desirability. After a day, I called the listing broker to find out the status of the offer. To my surprise, he told me that the offer was great, but that the seller already had an offer on the property.
Because of this, the listing broker said she would not be delivering my buyer’s offer to the seller. She agreed to hold the offer for submission to the seller in the future should the first offer fall through. May the listing broker decide to refuse to deliver my buyer’s offer to the seller?
A: The answer is a bit complex and finds its legal roots in Chapter 475.278, Florida Statutes. The statute discusses the obligations of the different types of brokerage relationships. One of the obligations found in the statute is “Present[ing] all offers and counteroffers in a timely manner, unless a party has previously directed the licensee otherwise in writing.”
The statute seems to create an obligation for a listing agent to deliver the offer to the seller unless the seller has previously directed him or her otherwise in writing. This means that you need to know whether the listing broker is following the seller’s direction or making the decision to refuse delivery of the offer on her own.
In the event the listing broker has received no written seller direction to the contrary, we suggest the listing broker deliver the offer to the seller or face a possible violation of Chapter 475.278, Florida Statutes.
Q: May I serve a glass of wine to clients over age 21 who visit my office, similar to when a client visits an upscale hair salon?
A: There’s no law prohibiting this activity; however, it’s not recommended for a number of reasons, including but not limited to, premises liability issues and licensing law problems. For example, what happens if the client becomes tipsy at your office and is injured or gets behind the wheel of a car and causes an accident?
Moreover, what if the client enters into an exclusive representation agreement with you, agrees to accept your offer to list his or her property or decides to make an offer to purchase someone else’s property and later regrets the decision and accuses you of serving wine in an effort to influence the outcome? All of these scenarios could open the door to both personal and Florida Real Estate Commission liability.
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: I’m a broker of my own brokerage corporation, which currently handles only residential transactions. I want to set up a branch office to run the commercial side of my business. May I register a trade name for the branch office and continue to use the corporate name for my primary office?
A: No. All branch offices must have the same corporate or trade name as the primary office. Also, no individual, partnership or corporation may be registered under more than one trade name.
Q: Are some brokerage companies required by law to post an Equal Employment Opportunity poster?
A: Yes. Employers with 15 or more employees during 20 weeks of the year are required to display the poster “Equal Employment Opportunity Is the Law” on their premises. The notice must be posted prominently, where employees and applicants for employment can readily see it.
The notice provides information concerning the laws and procedures for filing complaints of violations of employment laws. The Code of Federal Regulations (CFR) 1601.30, Federal Code 29, states, “Every employer … shall post and keep posted in conspicuous places upon its premises notices in an accessible format … Such notice must be posted in prominent and accessible places where notices to employees, applicants and members are customarily maintained …”
The poster can be downloaded via the U.S. Department of Labor Web site.
Q: I’m a real estate broker and have been contacted by a residential homeowners’ association. They want me to manage the HOA. I’ll be responsible for doing things like preparing the HOA’s budget, noticing owners of meetings, and disbursing the HOA’s funds. Would I be required to obtain a Community Association Management (CAM) license before engaging in this activity?
A: It depends. Community association management is defined in Section 468.431, Florida Statutes, as “any of the following practices requiring substantial specialized knowledge, judgment and managerial skill when done for remuneration and when the association or associations served contain more than 10 units or have an annual budget or budgets in excess of $100,000: controlling or disbursing funds of a community association, preparing budgets or other financial documents for a community association, assisting in the noticing or conduct of community association meetings, and coordinating maintenance for the residential development and other day-to-day services involved with the operation of a community association.”
If you’re conducting the types of activities outlined in the definition (which you would appear to be doing) for compensation and the association served contains more than 10 units or has an annual budget in excess of $100,000, you would be required to obtain a CAM license. This type of license may be obtained from the Department of Business and Professional Regulation (Website: www.myflorida.com/dbpr).
Q: I’m a broker for a large brokerage, and I just found out that one of my sales associates pled guilty to a felony drug charge. Do I have a duty to terminate her or to notify the Florida Real Estate Commission?
A: No. You have no duty to do either under the real estate license law. However, your sales associate has a duty to inform FREC, in writing, within 30 days of pleading guilty or nolo contendere to, or being convicted or found guilty of, any felony.
Q: A bank has contacted me (a sales associate) and wants me to perform broker price opinions on its bank-owned 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 475.42(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.”