Chapter 1 - Do the Right Thing!: Ethics Requirements for Engaging In Real Estate

Transcription

1 Here are the key lessons from Legal Update II that will be covered in the final exam: Chapter 1 - Do the Right Thing!: Ethics Requirements for Engaging In Real Estate This first chapter covers the license holder s status as a fiduciary, and how that defines the ethical and legal relationship of trust with their clients. A fiduciary is expected to be loyal to the principal to whom he or she owes the duty. This is embodied by the agent s primary duty of fidelity, which is covered in Chapter 22 of the Texas Administrative Code Also covered in this chapter (and 22 TAC chapter 531) are the obligations of integrity and competency that a license holder owes their clients, as well as the consumer information owed to a client. Also illustrated are the various similarities and differences between the Texas Real Estate Commission (TREC) and the Texas Association of Realtors (TAR). Topic 1 - Intro Texas law places responsibilities upon all license holders regarding ethics and conduct. An agent may also belong to a real estate trade association that requires members to follow a code of ethics. Acting in an ethical way typically involves making the right choice when faced with the dilemma of distinguishing between right and wrong. Topic 2 - Fidelity (22 TAC 531.1) A real estate broker or sales agent, while acting as an agent for another, is a fiduciary. Special obligations are imposed when such fiduciary relationships are created. The primary duty of the real estate agent is to represent the interests of the agent s client. The agent s position, in this respect, should be clear to all parties concerned in a real estate transaction; however, the agent, in performing duties to the client, shall treat other parties to a transaction fairly. The real estate agent must be faithful, observant, scrupulous, and meticulous in performing their functions. The real estate agent places no personal interest above that of the interest of the agent s client.

2 Topic 3 - Integrity (22 TAC 531.2) A real estate broker or sales agent s obligation to exercise integrity includes employment of prudence and caution, to avoid misrepresentation. Topic 4 - Competency (22 TAC 531.3) It is the obligation of a real estate agent to be knowledgeable as a real estate brokerage practitioner. The agent should: be informed on market conditions affecting the real estate business and take continuing education in the intricacies involved in marketing real estate be informed on national, state, and local issues and developments exercise judgment and skill in their work performance have knowledge of zoning, local road construction, future city and county plans, location of flood plains, utility districts, school rankings and school boundaries, homeowner associations, subdivision restrictions and more. Topic 5 - Consumer Information (22 TAC ) Legislature has deemed it important for real estate consumers to know where they can file a complaint or apply for assistance from real estate recovery funds when they have a problem with a license holder. TREC has mandated that each active real estate broker provide the new Consumer Protection Notice form by: displaying it in a readily noticeable location in their place of business providing a link to it on their website Topic 6 - TREC and TAR: What s The Difference? TREC and TAR are frequently confused with each other, but this is how the two are broadly defined: TREC Texas Real Estate Commission: a governmental licensing agency that protects the public TAR Texas Association of Realtors : a professional trade organization

3 This section goes on to name the various similarities and differences between TREC and TAR. Here are a few of them: TREC promulgates condominium contract forms. Both TAR and TREC requires sales agents to treat all parties fairly/honestly. TREC cannot provide legal advice to license holders. TAR may lobby the legislature and influence the adoption of new laws, while TREC cannot. Topic 7 - Court Case The court case featured in this section is BADMAND HOLDINGS LLC V. XIE. Some of the topics covered in this court case include: That agents should request proper documentation from the business entities they may represent when buying or selling real estate. The different types of authority and agency that exist and may be binding on business entities and other individuals. Chapter 2 - Fair Housing and Anti-Discrimination Standards This chapter gives an updated summary on the different anti-discrimination requirements that TREC expects from all license holders. This includes a list of the various protected classes whom these standards apply to. Also included is the applicability of fair housing to senior housing and ways to avoid discrimination or preferential practices in advertising. Topic 1 - Intro Title VII of the Federal Civil Rights Act of 1968 is commonly known as the Fair Housing Act. The Fair Housing Act prohibits discrimination against certain protected classes in the sale, rental, or advertising of dwellings, in the provision of brokerage services or in the availability of residential real estate-related transactions.

4 Topic 2 - Discriminatory Practices (22 TAC ) TREC specifically addresses anti-discrimination requirements in the following rule, which applies to all license holders: No real estate license holder shall inquire about, respond to, facilitate inquiries about, or make a disclosure of an owner, previous or current occupant, potential purchaser, lessor, or potential lessee of real property which indicates or is intended to indicate any preference, limitation, or discrimination based on the following: race, color, religion, sex, national origin, ancestry, familial status, or disability. For the purpose of this section, disability includes AIDS, HIV-related illnesses, or HIV infection as defined by the Centers for Disease Control of the United States Public Health Service. Topic 3 - Senior Housing Exemptions The Fair Housing Act allows some senior housing facilities to refuse to sell or rent to families with children under 18. To qualify for this exemption, the facility must prove at least one of the following: elderly housing provided under a HUD-approved program intended for and solely occupied by persons age 62 or older, or intended and operated for occupancy by persons age 55 or older and satisfies additional requirements. Topic 4 - Advertising A good advertising practice is to include the Fair Housing logo or a disclaimer indicating that the brokerage does not discriminate based on race, color, religion,

5 national origin, sex, disability, or familial status. Agents should also be aware of any other protected classes in their area and may wish to include those protected classes in a disclaimer. The application and screening process should be clear and presented to potential applicants before they present a rental application for a specific property. A best practice is to attach a copy of the qualifying criteria to the MLS property listing or to provide that information to potential applicants before accepting applications. Other fair housing topics covered in this section that can result from advertising include: steering, disparate impact, reasonable accommodation, and reasonable modification. Topic 5 - Court Case This section gives a summary of DODD V. CLEARWATER BAY PROPERTY OWNERS ASSOCIATION, a case in which racial discrimination was alleged to have influenced the sale of property. Chapter 3 - Agency The bulk of this chapter involves the Information About Brokerage Services (IABS) form, and specifically what is needed when a license holder chooses to represent both sides of a transaction in the role of an intermediary. Becoming an intermediary requires several key steps and rules when engaging in these types of relationships. In addition to these requirements are a few multiple-choice questions and case studies pertaining to the smaller details involved in serving as an intermediary. Topic 1 - IABS Redux The requirement to give the Information About Brokerage Services form to a client or prospect at the first substantive communication has been a statutory requirement for several years. One example of substantive communication would be discussing the pros and cons of a property with a prospect. On February 1, 2016, use of a new mandatory IABS form took effect, along with a new requirement to post the IABS on a license holder s business website homepage and

6 some specific rules regarding types of acceptable delivery at the first substantive communication. One integral part of the IABS forms is that they must contain contact information. Topic 2 - IABS Pop Off The steps of the intermediary process in a purchase and sale transaction are detailed below: 1. The seller must be the broker s client. 2. The buyer must also be the broker s client. 3. The broker must give the seller a statutory disclosure in writing, explaining the intermediary process. 4. The broker must give the buyer the same statutory disclosure in writing, explaining the intermediary process and that it is required to be given to the seller. 5. The seller must consent in writing to the intermediary relationship. 6. The buyer must consent in writing to the intermediary relationship. 7. The intermediary situation must present itself There are two different levels of intermediary status and some preliminary rules to remember: All relationships are between the broker and the client (seller/buyer). Sales agents do not have clients directly. If the broker is not an intermediary, and both the seller and the buyer are the broker s clients. Any licensed broker can operate at the basic intermediary status level. The basic intermediary status level can be achieved if the broker has - no sales agents, or

7 - Only one sales agent, or - Multiple sales agents Topic 3 - Failure Along the Way This section features Case Study 3 and Case Study 4. Case Study 3 touches on the type of dilemma that can arise when an agent acts as an intermediary without the other client s knowledge. Case study 4 details a listing broker s inability to properly come to an agreement on a termination contract with a seller, and thus causing them to react inappropriately, by listing the sellers active property as temporarily off market. The broker should have terminated the listing agreement after they were no longer able to fulfill the fiduciary duties owed to their clients. Also, they may have been able to enforce the terms of the listing agreement in court. Topic 4 - Court Cases The court cases featured in this section are MCCARTHY V. REALTY AUSTIN (which questions whether merely introducing a property to a buyer should earn them a commission), BURTON CREEK DEV., LTD. V. COTTRELL (which covers the subject of partial performance and its relation to the statute of frauds), SAN SEBASTIAN REALTY CO. V. HUERTA (which covers a dispute over a property owner s alleged refusal to sell), and MAIDA DEV., LLC V. TARANTINO PROPS (which discusses whether a principal-agent relationship was created via ). Chapter 4 - Recovery Fund This chapter details when and how recovery funds are necessary and the differences between The Real Estate Recovery Trust Account and The Real Estate Inspection Recovery Fund. Also covered are the different contingencies and steps necessary for filing an application for reimbursement for a recovery fund with TREC. Topic 1 - Real Estate Recovery Trust Account and Funds

8 TREC maintains two real estate recovery funds to reimburse consumers who suffer damages caused by TREC license holders: The Real Estate Recovery Trust Account and The Real Estate Inspection Recovery Fund. Regardless of the number of applicants, payments from the Real Estate Recovery Trust Account may not exceed $50,000 per transaction, with a maximum of $100,000 per license holder for multiple transactions. Payments from the Real Estate Inspection Recovery Fund may not exceed $12,500 per transaction, with a maximum of $30,000 per license holder for multiple transactions. Topic 2 - Filing a Claim for Reimbursement Before a consumer can file an application for payment from one of the recovery funds, the consumer must file a lawsuit in court and obtain a civil judgment from the court against a TREC license holder. The next steps of filing such a claim are: Obtain an Abstract of Judgment Obtain a Writ of Execution File Your Application Review and Approval If a license is revoked following payment from the recovery fund, the license holder can reapply two years from the date of revocation or repayment of the recovery fund payment in full, plus accrued interest. After payment is made by a license holder from a recovery fund, TRELA requires that their license be revoked if the amount paid from the recovery fund is not repaid before the 31st day after notice of payment was sent to the license holder. Chapter 5 - Hot Topics This chapter is dedicated to some of the more pressing issues affecting real estate license holders in Texas today. The first issue covered is the scope of duties for unlicensed assistants, either in facilitating contact with potential clients or serving in an administrative or property management capacity. The topic of handling multiple offers is covered in a scenario showing that receiving offers via can lead to miscommunication, while sending multiple counteroffers can also cause problems.

9 Issues that can arise when using rebates and broker/agents acting as principals are giving their own sections, which use various scenarios to illustrate their potential pitfalls. And finally, coming soon or pocket listings are depicted as marketing methods that are sometimes necessary, but can also cause a license holder to violate certain TREC rules or laws. Topic 1 - Use of Unlicensed Assistants in Real Estate Transactions Brokers and sales agents often use unlicensed personnel to assist them in conducting their real estate brokerage activities. Care must be taken to ensure that unlicensed personnel do not conduct any of the activities for which a real estate license is required. TREC Rule 535.5(g) states that an unlicensed assistant, identified to callers as such, may confirm information concerning the size, price and terms of property advertised. Taken together, this means that an unlicensed person may, after identifying himself or herself as an unlicensed person, confirm information previously advertised to a caller or a person dropping by. The unlicensed person should not give information about property, other than that inquired about, and should refer any requests for information regarding another property to a licensed agent. This section features a script called You re on Candid Camera, which illustrates the kind of security issues that may come up when using video in selling a home. A few of the takeaways from this scenario are: If a buyer's agent knows that a home has hidden security cameras in the property, the buyer's agent is not legally required to disclose the presence of security cameras. If a sales agent and owner were to film a showing, while reviewing the footage, an improper use of the camera footage would be to use any discriminatory criteria in judging the prospective buyer. Topic 2 - How to Handle Multiple Offers It is the seller s decision whether the agent will tell other agents of the existence of multiple offers and then only the existence, not the details. The agent should discuss

10 and may make recommendations to the seller regarding the best way to respond to multiple offers. Topic 3 - Rebate Issues The Commission Non-Splitter scenario featured in this section involves a broker going back on a promise about rebates. Some of the takeaways from it are: TREC Rule (m) requires that an advertisement must mention that a rebate is subject to the consent of the party the license holder represents. In regard to rebate disclosure in advertising, it rarely matters what forum is being used for the advertisement. Topic 4 - Broker or Agent Acting as Principal This section is comprised of the scenarios Agent/Principal All Wrapped Up, The Advantage Taker, and Just Because You Have a Key, which relate to various broker-agent/principal issues. Topic 5 - Coming Soon Advertisements There has recently been a proliferation of the use of coming soon or pocket listings. License holders should be aware that selling property using this method, under some circumstances, may result in a complaint with TREC and a finding that the license holder has violated TREC laws and rules. Some common characteristics of this practice are: a license holder has a listing on a property and advertises it on a limited basis as coming soon, or does not advertise it at all outside of his or her own brokerage ( pocket listing ); the property is not entered into the local MLS system or other online property listings; the property is not available for general showings or open houses; or the property is not otherwise given full exposure to the market. Although TREC does not restrict how a property can be marketed, license holders still must comply with their required fiduciary duties. Chapter 6 - Court Cases

11 The final chapter consists of two more court cases relating to current issues in Texas Real Estate. Topic 1 - Court Cases STROSS V. REDFIN CORP.: This case involves a claim for copyright infringement. It highlights that a participant must submit a Participant Content Access Agreement (PCAA) to participate in the MLS. RUDER V. JORDAN: This case involves an allegedly defamatory online review against a broker. The property owner who wrote the review argued that the posted statements constituted actionable, objectively verifiable statements of fact and were substantially true. In order to initiate their claim, the broker needed to prove that the published statement was false, caused harm to the broker, and was not an opinion.