Real Estate Broker and Managing Broker
CONTINUING EDUCATION Course Book 13th Edition
www.InstituteOnline.com (800) 995-1700
Real Estate Broker and Managing Broker
CONTINUING EDUCATION Course Book 13th Edition
AN
ILLINOIS REAL ESTATE CONTINUING EDUCATION PROGRAM
Real Estate Institute (800) 995- 1700 www.InstituteOnline.com
REAL ESTATE BROKER and MANAGING BROKER CONTINUING EDUCATION for ILLINOIS REAL ESTATE LICENSEES 13th Edition COPYRIGHT © 2013 by Real Estate Institute All rights reserved. No part of this book may be reproduced, stored in any retrieval system or transcribed in any form or by any means (electronic, mechanical, photocopy, recording or otherwise) without the prior written permission of Real Estate Institute.
A considerable amount of care has been taken to provide accurate and timely information. However, any ideas, suggestions, opinions, or general knowledge presented in this text are those of the authors and other contributors, and are subject to local, state and federal laws and regulations, court cases, and any revisions of the same. The reader is encouraged to consult legal counsel concerning any points of law. This book should not be used as an alternative to competent legal counsel. Printed in the United States of America. •P3•
Published by
Real Estate Institute 6203 W. Howard Street Niles, IL 60714
(800) 995-1700 www.InstituteOnline.com
Table of Contents Chapter 1. Fair Housing, Agency, License Law and Escrow
Page 1
3 Credit Hours – Core A A review of fair housing laws and guidance for practice under Article 15 Agency Relationships, study of sections of law and rules significant to the sponsor-licensee relationship and rules for the handling of escrow moneys.
2. Creating the Transaction
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3 Credit Hours – Core B A study of listing agreements, contract law, types of listing agreements, multiple listing services, rules of prospecting and solicitation, listing presentations, agency relationships, dual agency, and residential property disclosure.
3. Ethical Practice
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3 Credit Hours – Elective The REALTOR® Code of Ethics – its enforcement, disclosure of representation, latent defects, conflicts of interest, escrows, litigation, and office policies. An explanation of ethical standards set by the Real Estate License Act.
4. Managing Risk
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3 Credit Hours – Elective The unauthorized practice of law, preparing comparable sales, fair housing, disclosures, litigation, office policies, and programs that can be followed to lessen the chance of error or legal complications.
Answer Key For Study Questions
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FAIR HOUSING, AGENCY, LICENSE LAW AND ESCROW FAIR HOUSING Fair housing is the law of the land throughout the United States. What constitutes fair housing or equal opportunity in housing at a national level is set forth in the Civil Rights Act of 1866 and Title VIII of the Civil Rights Act of 1968 (also known as the “Fair Housing Act”). Illinois has its own fair housing law, known as the “Illinois Human Rights Act,” and many municipalities in Illinois have their own human rights laws.
The Civil Rights Act of 1866: Prohibiting Racial Discrimination The Civil Rights Act of 1866 provides that, "All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property." In the case of Jones v. Mayer, decided on June 17, 1968, the U.S. Supreme Court held that the 1866 law prohibits "all racial discrimination, private as well as public, in the sale or rental of property."
The Fair Housing Act The Fair Housing Act of 1968, together with amendments added in 1988, prohibits the following acts if they are based on race, color, religion, sex, national origin, familial status or handicap: x x x
Refusing to sell or rent to, deal or negotiate with any person. Discriminating in terms or conditions for buying or renting housing. Discriminating by advertising that housing is available only to certain classes of people. x Denying that housing is available for inspection, sale or rent when it really is available. x "Blockbusting," which occurs when you persuade owners to sell or rent housing by telling them that minority groups are moving into the neighborhood. x Denying or making different terms or conditions for home loans by commercial lenders, such as banks, savings and loan associations and insurance companies. x Denying to anyone the use of or participation in any real estate services, such as brokers' organizations, multiple listing services or other facilities related to the selling or renting of housing. Be aware that intent to discriminate is not required for you to be found guilty of discrimination. If words or actions result in discrimination, a licensee may be found guilty regardless of intent.
Housing Covered By the Fair Housing Act Prohibitions contained in the Fair Housing Act apply to the following types of housing: x x x
Single-family housing owned by private individuals when a licensee or other person in the business of selling or renting dwellings is used and/or when discriminatory advertising is used. Single-family houses not owned by private individuals. Single-family houses owned by a private individual who owns more than three such houses or who, in any two-year period, sells more than one in which the individual was not the most recent resident.
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x x
Multifamily dwellings of five or more units. Multifamily dwellings containing four or fewer units if the owner does not reside in one of the units.
Acts Not Prohibited By the Fair Housing Act The following acts are not covered by the Fair Housing Act: x
The sale of single-family houses when owned by a private individual if all of the following are true: o The owner owns three or fewer single-family houses. o
A real estate licensee is not used.
o
Discriminatory advertising is not used.
o
No more than one house in which the owner was not the most recent resident is sold during any two-year period.
x
Rentals of rooms or units in two-to-four-family buildings in which the owner lives if discriminatory advertising is not used. x Limiting the sale, rental, or occupancy of dwellings that a religious organization owns or operates for other than a commercial purpose to persons of the same religion, if membership in that religion is not restricted on account of being a member of a protected class. x Limiting to its own members the rental or occupancy of lodgings that a private club owns or operates for other than a commercial purpose. It is important to remember, however, that even these acts are prohibited by the Civil Rights Act of 1866 when discrimination is based on race.
Enforcement Where to File a Complaint Discriminatory acts covered by the Fair Housing Act should be reported to the Department of Housing and Urban Development (HUD). Once a complaint has been received, HUD takes the following actions: x x x x
Notifies the person who filed the complaint (the “complainant”). Notifies the alleged violator (the “respondent”) of the complaint and permits that person to submit an answer. Investigates the complaint to determine if the Fair Housing Act has been violated. Notifies the complainant if the investigation cannot be completed within 100 days of receiving the complaint.
When to File a Complaint Complainants have up to one year after an alleged violation to file a complaint with HUD.
Conciliation HUD will try to resolve the situation by proposing a “conciliation agreement.” A conciliation agreement must protect both the complainant and the public interest. If an agreement is signed, HUD will take no further action. However, if HUD has reasonable cause to believe that a conciliation agreement has been breached, it will recommend that the U.S. Attorney General file suit against the breaching party.
Complaint Referrals If HUD determines that the state or local agency in which the complaint was filed has the same fair housing powers as HUD, the complaint is referred to that agency for © Real Estate Institute
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investigation, and the complainant is notified of the referral. That agency must begin work on the complaint within 30 days, or HUD may assume responsibility for its processing.
What If Help Is Needed Quickly? If immediate help is necessary to stop a serious problem caused by a Fair Housing Act violation, HUD may be able to assist the complainant as soon as the complaint is filed. Then, HUD may authorize the Attorney General to go to court to seek temporary or preliminary relief, pending the outcome of the complaint, if either of the following statements is true: x x
Irreparable harm is likely to occur without HUD’s intervention. There is substantial evidence that a violation of the Fair Housing Act has occurred. For example, if a builder agrees to sell a house but reconsiders after learning that the buyer is black, the buyer might file a complaint with HUD. HUD might authorize the Attorney General to go to court to prevent a sale to any other buyer until the matter has been investigated.
What Happens After a Complaint Investigation? If HUD finds reasonable cause to believe that discrimination has occurred, the complainant is informed. The case is heard in an administrative hearing within 120 days unless either party wants the case to be heard in federal district court. Either way, there is no cost to the filer of the complaint.
The Administrative Hearing If the case goes to an administrative hearing, HUD attorneys will represent the complainant. The complainant may also choose his/her own attorney. An administrative law judge (ALJ) considers evidence from the complainant and the respondent. If the ALJ decides that discrimination has occurred, the respondent can be ordered: x x x x
To compensate the complainant for actual damages, including humiliation, pain and suffering. To provide injunctive or other equitable relief (for example, to make the housing available to the complainant). To pay the federal government a civil penalty to vindicate the public interest. To pay reasonable attorney’s fees and costs.
Federal District Court If the complainant or the respondent chooses to have the case decided in federal district court, the Attorney General will file a suit and litigate it on the complainant’s behalf. Like the ALJ, the district court can order relief and award actual damages, attorney’s fees and costs. In addition, the court can award punitive damages.
Complainant May Also File Suit The complainant may file suit in federal district court or state court within two years of an alleged violation. If the complainant cannot afford an attorney, the court may appoint one. Suit may be brought even after a complaint has been filed, as long as the complainant has not signed a conciliation agreement and an ALJ has not started a hearing. A court may award actual and punitive damages, as well as attorney’s fees and costs.
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Other Tools to Combat Housing Discrimination x x
If there is noncompliance with the order of an ALJ, HUD may seek temporary relief, enforcement of the order or a restraining order in a United States Court of Appeals. The Attorney General may file a suit in federal district court if there is reasonable cause to believe a pattern or practice of housing discrimination exists.
Protected Classes in the Fair Housing Act and the Illinois Human Rights Act Under federal law, housing discrimination is illegal when it is done on the basis of the following characteristics: x Race. x Color. x Religion. x National origin. x Sex. x Physical or mental handicap. x Familial status (an adult with a child 18 or younger living with him or her). Under the Illinois Human Rights Act, the state has exceeded federal standards by also making housing discrimination illegal when it is based on the following characteristics: x x x x x x
Ancestry. Age. Marital status. Sexual orientation. Unfavorable discharge from military service. Military status. Order of protection.
x The Americans With Disabilities Act of 1990
The Americans With Disabilities Act (ADA) was enacted on July 26, 1990, and it is the world’s first comprehensive civil rights law for the protection of persons with disabilities. The ADA prohibits private employers and providers of public accommodations from intentional acts or omissions that cause discrimination against physically or mentally disabled persons. In general terms, the ADA requires employers (including real estate businesses) and those who offer public accommodations (including transportation and telecommunications) to respond to the needs of the disabled. Implementation of the law was accomplished in stages in an effort to ease the impact and allow time for employers, businesses and property owners to make necessary alterations. Alterations that are not possible with a reasonable amount of work are not mandatory. However, all new buildings now must meet the standards set forth under the law.
Discrimination in Brokerage Services The Fair Housing Act declares that it is unlawful to discriminate when providing real estate brokerage services. Specifically, the law prohibits denying a person who is a member of a protected class access or membership to, or participation in, any multiple listing service, real estate brokers' organization or other service, organization, or facility relating to the business of selling or renting dwellings. The law also prohibits discrimination against any person in the terms or conditions of such access, membership, or participation, if such © Real Estate Institute
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discrimination is based on race, color, religion, sex, handicap, familial status or national origin.
Real Estate License Act of 2000 The Real Estate License Act of 2000 contains provisions for disciplining Illinois licensees who violate fair housing laws. Under the law, the Illinois Department of Financial and Professional Regulation (IDFPR) may take any of the following actions: x x x
Refuse to issue or renew a license. Place a licensee on probation, or suspend or revoke licensure. Reprimand or impose a civil penalty not to exceed $25,000 upon any licensee for the following causes: o Influencing or attempting to influence, by any words or acts a prospective seller, purchaser, occupant, landlord or tenant of real estate, in connection with viewing, buying or leasing real estate, so as to promote, or tend to promote, the continuance or maintenance of racially and religiously segregated housing, or so as to retard, obstruct or discourage racially integrated housing on or in any street, block, neighborhood or community. o
Engaging in any act that constitutes a violation of any provision of Article 3 of the Illinois Human Rights Act, whether or not a complaint has been filed with or adjudicated by the Human Rights Commission.
Under the law, a licensee will be disciplined if the court judges that the individual is guilty of illegal discrimination. This portion of the law appears below: x
When there has been an adjudication in a civil or criminal proceeding that a licensee has illegally discriminated while engaged in any activity for which a license is required under this Act, the department, upon the recommendation of the Board as to the extent of the suspension or revocation, shall suspend or revoke the license of that licensee in a timely manner, unless the adjudication is in the appeal process. When there has been an order in an administrative proceeding finding that a licensee has illegally discriminated while engaged in any activity for which a license is required under this Act, The Department, upon recommendation of the Board as to the nature and extent of the discipline, shall take one or more of the disciplinary actions provided for in Section 20-20 of this Act in a timely manner, unless the administrative order is in the appeal process.
Real Estate Licensees and Fair Housing Laws Real estate licensees play a major role in the process of providing fair housing and equal opportunity for everyone in this country. A real estate professional’s prominent position in assisting the public with the purchase and sale of property can expose him or her to potential claims of unfair housing practices. Blockbusting, panic peddling and steering are of particular concern.
Blockbusting, Panic Peddling and Steering “Blockbusting” and “panic peddling” are terms that are typically used interchangeably, even though they had somewhat different meanings in the past. Panic peddling occurs when a real estate licensee attempts to induce an owner to sell a property by implying that people of a particular protected class are moving, or are going to move, into the neighborhood. For example, an agent might warn a prospective seller of an impending change in the neighborhood composition with respect to race, color, religion, sex or national origin. The agent might also insinuate that the entry of these individuals will result © Real Estate Institute
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in undesirable consequences for the neighborhood or community, such as a lowering of property values, an increase in criminal or antisocial behavior or a decline in the quality of schools or other services or facilities. The agent’s actions would be viewed as panic peddling in either of these instances. “Steering” occurs when a licensee attempts to direct a prospect to a particular area based on, for example, the person’s race, color, sex, religion, national origin, handicap or familial status. Intentionally steering a minority prospect to an area in which there are no minorities is also illegal. All prospects must be given the opportunity to choose from the entire inventory of available housing.
Testers Private groups and various governmental entities can monitor a licensee’s behavior through the use of “testers.” Testers can help to determine if licensees are violating any fair housing laws or regulations. Essentially, testers are individuals who pose as prospective real estate consumers and, by working in pairs, can determine if a licensee treats two individuals with equal buying power differently based on race, color, sex, familial status, marital status, religion, national origin or disability. Testers do not have to admit they are testers, even if asked directly. Testers may even proceed to enter into a contract before acknowledging their status as testers. A tester will report any unequal treatment regardless of the services offered to either individual. Remember: the fair housing laws do not emphasize better treatment of individuals belonging to a protected class. Instead, they emphasize equal treatment for all individuals.
Advertising and Fair Housing The Fair Housing Act outlaws almost every discriminatory notice, statement or advertising that relates to the sale or rental of housing. This advertising rule even applies to those housing transactions that are otherwise exempt under the law. The Fair Housing Act makes it unlawful to discriminate in the sale, rental, or financing of housing, or in the provision of brokerage and appraisal services, because of a person’s protected class. The Fair Housing Act makes it unlawful to make, print or publish (or cause to be made, printed, or published) any notice, statement, or advertisement, with respect to the sale or rental of a dwelling, that shows an intention to indicate any preference, limitation or discrimination based on an individual belonging to a protected class. It is recommended that licensees use the equal housing logo in all display advertising. It is also good policy to use the logo on your business cards and stationery as well as in newspaper and magazine advertising. (Classified ads do not require use of the logo since the publisher is required to place a notice regarding equal housing at the beginning of that section of the publication.) HUD has also created a special “equal housing opportunity” poster, which must be prominently displayed in all real estate offices. Sometimes, it may be difficult to determine exactly what constitutes discriminatory advertising. There have been claims by some fair housing organizations that ads using terms such as ”master bedroom” or “in-law apartment” are discriminatory. HUD has addressed these issues at the request of the National Association of Realtors®. HUD issued a statement that stopped short of listing every word or phrase that can or cannot be used in advertising materials. However, HUD did offer guidance by saying that
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words implying preferences are to be avoided, and words describing physical characteristics of the property are permissible.
Signs Federal fair housing law considers signs a form of advertising. Therefore, signs advertising real estate must conform to the same standards as other advertisements. Local governments have dealt with signs in various ways. Some municipalities believe the placing of signs, in and of itself, can amount to a violation. (For example, placing too many signs in an area might be interpreted as a form of panic peddling.) Other local governments believe that sign limitation laws violate fair housing laws because they limit the public’s ability to find out which properties are available. Currently, there is no federal or state law limiting the number of signs allowed or the length of time signs can be displayed on a property in Illinois.
Record Keeping Good record keeping can help you prove that you did not intend to discriminate. Records showing that you used the same method of financial qualification for all of your prospects (and that prospects with the same qualifications were shown the same properties) may help to prove that your intent was to avoid discrimination.
AGENCY Agency is the legal relationship created when one person represents another. When you represent others in any situation, it is as though you are their replacement; or as we sometimes say, you “walk in their shoes.” As real estate professionals, our relationships with the public are guided by multiple sets of rules and standards. For most licensees, these rules and standards come from common law, state statutes, regulatory agencies, real estate associations and multiple listing services. Over the years, these different laws and rules have sometimes been in conflict with one another. This conflict can lead to confusion regarding the correct way to practice our profession. In our study of the current agency law in Illinois, you will see that the overall goal is to protect the public interest by seeing that all people have an understanding of the relationships they are involved in and that they receive full representation in every possible instance.
Types of Agency Relationships A real estate licensee can choose from a variety of ways to serve the public. A licensee can list property and represent sellers, prospect for purchasers and find property for them, or do both. Each of these methods of practice has its place and comes with its own set of rules and regulations. Regardless of which way you choose to practice, you should have an understanding of all the rules in order to function correctly in what has become a more demanding marketplace. In order to discuss agency properly, we must first define some terms. “Single agency” means representing only the buyer or only the seller in a particular transaction. “Dual agency” is the practice of representing both the seller and the buyer in the same transaction. © Real Estate Institute
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“Express agency” occurs when you specifically tell people you will represent them and they agree to it. “Implied agency” is created when you do or say anything that would lead people to believe you are working in their best interest. Unintentional implied agency is very dangerous. If you do or say anything that would make it seem as though you are working on a consumer’s behalf, a court might rule that you were required to act in that person’s best interest throughout the entire transaction. Asking buyers or sellers questions about facts that would influence their negotiating position is one example of something that could cause them to believe that you are representing them. Examples of questions you should not ask if you are not a buyer’s agent include asking the buyer exactly when his or her apartment lease will expire or how much money is available for a down payment. When talking to a seller you do not represent, you would be wrong to ask when the person must move out of the property or how much money is needed to pay off the mortgage. In these instances, a court would probably find that you gave the consumer reason to believe you were representing him or her. After all, if you are not representing people in a transaction, you have no right to know about those things.
Real Estate License Act of 2000: Article 15 – Agency Relationships The key features of Illinois license law relating to agency are designated agency and disclosed dual agency. By designating that a licensee working with a member of the public in a real estate transaction is that person’s agent, the law provides the best possibility that each party in the transaction will receive professional representation. In instances where the licensee considers dual agency necessary and appropriate, Illinois law provides a carefully constructed set of rules and a specific disclosure form to be used. It is intended that the required disclosure and its proper use will protect the public from misunderstanding what to expect from the licensee and protect the licensee if he or she is accused of improper disclosure.
Illinois-Specific Definitions There are a number of terms given specific definitions in the Real Estate License Act. It is important that you understand the meaning of the terms listed below before continuing your study. Some of the most obvious recent changes to the Real Estate License Act relate to the titles of the license categories. The Salesperson category has been renamed “Broker,” and the former Broker category has been renamed “Managing Broker.” In some cases, outdated license categories might still appear in the law and rules. We will describe these licensing changes more in a later section of this course. You can access the law and accompanying rules in their entirety through links at the Illinois Department of Financial and Professional Regulation or Illinois General Assembly websites. “Agency” means a relationship in which a real estate broker or licensee, whether directly or through an affiliated licensee, represents a consumer by the consumer’s consent, whether express or implied, in a real property transaction. “Brokerage agreement” means a written or oral agreement between a sponsoring broker and a consumer for licensed activities to be provided to a consumer in return for compensation or the right to receive compensation from another. Brokerage agreements may constitute either a bilateral or a unilateral © Real Estate Institute
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agreement between the broker and the broker’s client depending upon the content of the brokerage agreement. All exclusive brokerage agreements shall be in writing. “Client” means a person who is being represented by a licensee. “Consumer” means a person or entity seeking or receiving licensed activities. “Customer” means a consumer who is not being represented by a licensee but for whom the licensee is performing ministerial acts. The law makes it clear that any time you are approaching buyers or sellers with the intent to earn a fee (whether the fee will come from them or someone else), you are automatically and instantly changing their status from being members of the general public to being consumers of real estate services. This is important because there are specific rules with regard to the treatment of consumers of real estate services. “Confidential information” means information obtained by a licensee from a client during the term of a brokerage agreement that (i) was made confidential by the written request or written instruction of the client; (ii) deals with the negotiating position of the client; or (iii) is information the disclosure of which could materially harm the negotiating position of the client EXCEPT under any of the following circumstances: x
The client permits the disclosure of information given by that client by word or conduct. x The disclosure is required by law. x The information becomes public from a source other than the licensee. Confidential information shall not be considered to include material information about the physical condition of the property. Protecting information that could influence a client’s negotiating position is as important as disclosing any information that could impact how the client proceeds in the negotiating process. However, be aware that information about a property’s physical condition is never to be withheld from either party in a transaction. “Designated agency” means a contractual relationship between a sponsoring broker and a client in which one or more licensees associated with the broker are designated as agent of the client. “Designated agent” means a sponsored licensee named by a sponsoring broker as the legal agent of a client. “Dual agency” means an agency relationship in which a licensee is representing both buyer and seller or both landlord and tenant in the same transaction. When the agency relationship is a designated agency, the question of whether there is a dual agency shall be determined by the agency relationships of the designated agent of the parties and not of the sponsoring broker. Designated agency is the foundation on which our methods of practice are built. The licensee who has direct contact with the buyer or seller is the only person considered to be the agent of that buyer or seller. A broker can have one licensee under his sponsorship representing the seller and another representing the buyer, and no one will be considered a dual agent.
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“Ministerial acts” means those acts that a licensee may perform for a consumer that are informative or clerical in nature and do not rise to the level of active representation on behalf of a consumer. Examples of ministerial acts include (without limitation) the following: x
Responding to phone inquiries by consumers as to the availability and pricing of brokerage services. x Responding to phone inquiries from a consumer concerning the price or location of property. x Attending an open house and responding to questions about the property from a consumer. x Setting an appointment to view property. x Responding to questions of consumers walking into a licensee’s office concerning brokerage services offered or particular properties. x Accompanying an appraiser, inspector, contractor, or similar third party on a visit to a property. x Describing a property or the property’s condition in response to a consumer’s inquiry. x Completing business or factual information for a consumer on an offer or contract to purchase on behalf of a client. x Showing a client through a property being sold by an owner on his or her own behalf. x Referral to another broker or service provider. The list of ministerial acts seems to encompass the purchaser’s side of the transaction in its entirety. However, if you look carefully at the limitations of each statement and the tone of the law, you should see that the intent is to have all purchasers receive representation rather than for them to be treated as customers. It would be almost impossible to answer a call from a prospective buyer, give the address, give the price, attend an open house, respond to the prospect’s questions about the property, accompany the prospect’s appraiser to the property, and complete the contract to purchase for the prospect without doing or saying one thing that would make the prospective buyer believe you were working as his representative. On the other hand, it may be appropriate to perform one of the individual ministerial acts for someone. If buyers working with another agent ask you about a price, address or other question about the property, it would be possible to simply respond with an answer since they can receive further explanation by asking their own agent. With an understanding of these terms, you are now ready to review the content of Article 15. As in most other parts of this course, we will first present sections of license law. Most sections conclude with a brief, general explanation of the law’s requirements and intent.
Section 15-5: Legislative Intent a)
The General Assembly finds that application of the common law of agency to the relationships among real estate brokers and salespersons and consumers of real estate brokerage services has resulted in misunderstandings and consequences that have been contrary to the best interests of the public. The General Assembly further finds that the real estate brokerage industry has a significant impact upon the economy of the State of Illinois and that it is in the best interest of the public to provide codification of the relationships between real estate brokers and salespersons and consumers of real estate brokerage services in order to prevent detrimental misunderstandings and misinterpretations of the
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relationships by consumers, real estate brokers, and salespersons and thus promote and provide stability in the real estate market. This Article 15 is enacted to govern the relationships between consumers of real estate brokerage services and real estate brokers and salespersons to the extent not governed by an individual written agreement between a sponsoring broker and a consumer, providing that there is a relationship other than designated agency. This Article 15 applies to the exclusion of the common law concepts of principal and agent and to the fiduciary duties, which have been applied to real estate brokers, salespersons, and real estate brokerage services. b)
The General Assembly further finds that this Article 15 is not intended to prescribe or affect contractual relationships between real estate brokers and the broker's affiliated licensees.
c)
This Article 15 may serve as a basis for private rights of action and defenses by sellers, buyers, landlords, tenants, real estate brokers, and real estate salespersons. The private rights of action, however, do not extend to the provisions of any other Articles of this Act.
The purpose of this portion of the law is to set specific rules and standards of practice that will protect the public in their dealings with real estate licensees. This section makes it clear that the courts are to judge the actions of licensees by this statute and not by the rules of common law. This allows licensees and consumers to rely on the provisions of this article to bring legal action to resolve problems or recover damages caused in the course of their brokerage relationship.
Section 15-10: Relationships Between Licensees and Consumers Licensees shall be considered to be representing the consumer they are working with as a designated agent for the consumer unless: (1) there is written agreement between the sponsoring broker and the consumer providing that there is a different relationship; or (2) the licensee is performing only ministerial acts on behalf of the consumer. This section makes it clear that the state prefers that the agent represent everyone he or she works with, rather than treat anyone as an unrepresented customer.
Section 15-15: Duties of Licensees Representing Clients a)
A licensee representing a client shall: (1) Perform the terms of the brokerage agreement between a broker and the client. (2) Promote the best interest of the client by: (A) Seeking a transaction at the price and terms stated in the brokerage agreement or at a price and terms otherwise acceptable to the client. (B) Timely presenting all offers to and from the client, unless the client has waived this duty. (C) Disclosing to the client material facts concerning the transaction of which the licensee has actual knowledge, unless that information is confidential information. Material facts do not include the following when located on or related to real
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estate that is not the subject of the transaction: (i) physical conditions that do not have a substantial adverse effect on the value of the real estate, (ii) fact situations, or (iii) occurrences. (D) Timely accounting for all money and property received in which the client has, may have, or should have had an interest. (E) Obeying specific directions of the client that are not otherwise contrary to applicable statutes, ordinances, or rules. (F) Acting in a manner consistent with promoting the client’s best interests as opposed to a licensee’s or any other person’s selfinterest. (3) Exercise reasonable skill and care in the performance of brokerage services. (4) Keep confidential all confidential information received from the client. (5) Comply with all requirements of this Act and all applicable statutes and regulations, including without limitation fair housing and civil rights statutes. This section replaces the generalities of the fiduciary duties imposed by common law (care, obedience, loyalty, and accounting) and creates a list of statutory duties that are more specific to a real estate transaction. It is intended to give licensees a better understanding of their responsibilities as well as to let the public know what to expect from real estate licensees. The rules promote adherence to the traditional fiduciary duties of loyalty, obedience, care, accounting and disclosure. b)
A licensee representing a client does not breach a duty or obligation to the client by showing alternative properties to prospective buyers or tenants, by showing properties in which the client is interested to other prospective buyers or tenants, or by making or preparing contemporaneous offers or contracts to purchase or lease the same property. However, a licensee shall provide written disclosure to all clients for whom the licensee is preparing or making contemporaneous offers or contracts to purchase or lease the same property and shall refer to another designated agent any client that requests such referral.
c)
A licensee representing a buyer or tenant client will not be presumed to have breached a duty or obligation to that client by working on the basis that the licensee will receive a higher fee or compensation based on a higher selling price or lease cost.
d)
A licensee shall not be liable to a client for providing false information to the client if the false information was provided to the licensee by a customer unless the licensee knew or should have known the information was false.
e)
Nothing in this Section shall be construed as changing a licensee’s duty under common law as to negligent or fraudulent misrepresentation of material information.
The above portion of the law offers protection to real estate licensees regarding some practices that might otherwise seem to be in conflict with other parts of the law.
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Section 15-20: Failure to Disclose Information Not Affecting Physical Condition No cause of action shall arise against a licensee for the failure to disclose (i) that an occupant of the property was afflicted with Human Immunodeficiency Virus (HIV) or any other medical condition; (ii) that the property was the site of an act or occurrence that had no effect on the physical condition of the property or its environment or the structures located thereon; (iii) fact situations on property that is not the subject of the transaction; or (iv) physical conditions located on property that is not the subject of the transaction that do not have a substantial adverse effect on the value of the real estate that is the subject of the transaction. This section protects licensees and excuses them from having to research the background of every property they work with.
Section 15-25: Licensee’s Relationship With Customers a)
Licensees shall treat all customers honestly and shall not negligently or knowingly give them false information. A licensee engaged by a seller client shall timely disclose to customers who are prospective buyers all latent material adverse facts pertaining to the physical condition of the property that are actually known by the licensee and that could not be discovered by a reasonably diligent inspection of the property by the customer. A licensee shall not be liable to a customer for providing false information to the customer if the false information was provided to the licensee by the licensee’s client and the licensee did not have actual knowledge that the information was false. No cause of action shall arise on behalf of any person against a licensee for revealing information in compliance with this Section.
b)
A licensee representing a client in a real estate transaction may provide assistance to a customer by performing ministerial acts. Performing those ministerial acts shall not be construed in a manner that would violate the brokerage agreement with the client, and performing those ministerial acts for the customer shall not be construed in a manner as to form a brokerage agreement with the customer.
This section offers more protection for the licensee than it does for the public by defining how limited the licensee’s obligations are to someone who he or she does not represent. The only thing licensees owe to people who they do not represent is honesty, nothing more.
Section 15-30: Duties After Termination of Brokerage Agreement Except as may be provided in a written agreement between the broker and the client, neither a sponsoring broker nor any licensee affiliated with the sponsoring broker owes any further duties to the client after termination, expiration, or completion of performance of the brokerage agreement, except: (1) to account for all moneys and property relating to the transaction; and, (2) to keep confidential all confidential information received during the course of the brokerage agreement. This section on termination makes it clear that it is necessary to keep confidential information confidential even when the agency relationship has ended. It also points out the fact that, with the exception of confidentiality, there is no further obligation on the part © Real Estate Institute
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of the licensee when the relationship is over. Therefore, if you terminate your relationship with a seller and two days later you show that seller’s home to a buyer, you are not a dual agent.
Section 15-35: Agency Relationship Disclosure a)
b)
c)
A licensee shall advise a consumer in writing of the following no later than beginning to work as a designated agent on behalf of the consumer: (1) That a designated agency relationship exists, unless there is written agreement between the sponsoring broker and the consumer providing for a different brokerage relationship. (2) The name or names of his or her designated agent or agents. The written disclosure can be included in a brokerage agreement or be a separate document, a copy of which is retained by the sponsoring broker for the licensee. The licensee representing the consumer shall discuss with the consumer the sponsoring broker’s compensation and policy with regard to cooperating with brokers who represent other parties in a transaction. A licensee shall disclose in writing to a customer that the licensee is not acting as the agent of the customer at a time intended to prevent disclosure of confidential information from a customer to a licensee, but in no event later than the preparation of an offer to purchase or lease real property.
This section on disclosure should actually be labeled “Read Carefully—This Is How You Protect Yourself.” The obligations of disclosure are clearly set forth in this section. The differences between what you must do for someone you represent and someone you do not represent are significant and must be strictly adhered to.
Section 15-40: Compensation Does Not Determine Agency Compensation does not determine agency relationship. The payment or promise of payment of compensation to a licensee is not determinative of whether an agency relationship has been created between any licensee and a consumer. This section should make it clear to you that just because you do not take your compensation from someone, you are not immune from being considered his or her agent. Likewise, the fact that you accept compensation from someone does not mean you will or must represent that person.
Section 15-45: Dual Agency a)
A licensee may act as a dual agent only with the informed written consent of all clients. Informed written consent shall be presumed to have been given by any client who signs a document that includes the following: (A copy of the document appears on the next page for your review.)
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DUAL AGENCY CONSENT AGREEMENT The undersigned________________________________________________________,(insert name(s)), (Licensee) may undertake a dual representation (represent both the seller or landlord and the buyer or tenant) for the sale or lease of property. The undersigned acknowledge they were informed of the possibility of this type of presentation. Before signing this document please read the following: Representing more than one party to a transaction presents a conflict of interest since both clients may rely upon the Licensee's advice and the client's respective interests may be adverse to each other. Licensee will undertake this representation only with the written consent of ALL clients in the transaction. Any agreement between the clients as to a final contract price and other terms is a result of negotiations between the clients acting in their own best interests and on their own behalf. You acknowledge that the Licensee has explained the implications of dual representation, including the risks involved, and understand that you have been advised to seek independent advice from your advisors or attorneys before signing any documents in this transaction. WHAT A LICENSEE CAN DO FOR CLIENTS WHEN ACTING AS A DUAL AGENT 1. 2. 3. 4. 5. 6. 7. 8. 9.
Treat all clients honestly. Provide information about the property to the buyer or tenant. Disclose all latent material defects in the property that are known to Licensee. Disclose financial qualification of the buyer or tenant to the seller or landlord. Explain real estate terms. Help the buyer or tenant to arrange for property inspections. Explain closing costs and procedures. Help the buyer compare financing alternatives. Provide information about comparable properties that have sold, so both clients may make educated decisions on what price to accept or offer.
WHAT A LICENSEE CANNOT DISCLOSE TO CLIENTS WHEN ACTING AS A DUAL AGENT 1. 2. 3. 4. 5.
Confidential information that Licensee may know about a client, without that client’s permission. The price or terms the seller or landlord will take other than the listing price without permission of the seller or landlord. The price or terms the buyer or tenant is willing to pay without permission of the buyer or tenant. A recommended or suggested price or terms the buyer or tenant should offer. A recommended or suggested price or terms the seller or landlord should counter with or accept.
If either client is uncomfortable with this disclosure and dual representation, please let the Licensee know. You are not required to sign this document unless you want to allow Licensee to proceed as a Dual Agent in this transaction. By signing below, you acknowledge that you have read and understand this form and voluntarily consent to Licensee acting as a Dual Agent (that is, to represent BOTH the seller or landlord and the buyer or tenant) should that become necessary. Dated this _________ day of _________________________________20____________ LICENSEE
CLIENT(S)
____________________________________ signature
____________________________________ signature ___________________________________ print name _____________________________________ signature _____________________________________ print name
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b)
The dual agency disclosure form provided for in subsection (a) of this Section must be presented by a licensee, who offers dual representation, to the client at the time the brokerage agreement is entered into and may be signed by the client at that time or at any time before the licensee acts as a dual agent as to the client.
c)
A licensee acting in a dual agency capacity in a transaction must obtain a written confirmation from the licensee’s clients of their prior consent for the licensee to act as a dual agent in the transaction. This confirmation should be obtained at the time the clients are executing any offer or contract to purchase or lease in a transaction in which the licensee is acting as a dual agent. This confirmation may be included in another document, such as a contract to purchase, in which case the client must not only sign the document but also initial the confirmation of dual agency provision. That confirmation must state, at a minimum, the following: “The undersigned confirm that they have previously consented to (insert name(s), “licensee”), acting as a Dual Agent in providing brokerage services on their behalf and specifically consent to Licensee acting as a Dual Agent in regard to the transaction referred to in this document.”
d)
No cause of action shall arise on behalf of any person against a dual agent for making disclosures allowed or required by this Article, and the dual agent does not terminate any agency relationship by making the allowed or required disclosures.
e)
In the case of dual agency, each client and the licensee possess only actual knowledge and information. There shall be no imputation of knowledge or information among or between clients, brokers, or their affiliated licensees.
f)
In any transaction, a licensee may without liability withdraw from representing a client who has not consented to a disclosed dual agency. The withdrawal shall not prejudice the ability of the licensee to continue to represent the other client in the transaction or limit the licensee from representing the client in other transactions. When a withdrawal as contemplated in this subsection (f) occurs, the licensee shall not receive a referral fee for referring a client to another licensee unless written disclosure is made to both the withdrawing client and the client that continues to be represented by the licensee.
This section makes it clear that dual agency is less desirable than single agency and that lawmakers would prefer that it be avoided. However, it has been left open as an option if you follow a very specific set of rules. You must warn a prospect at your first contact if there is a chance that you might ask him or her to accept being in a dual agency relationship. Furthermore, when you actually are about to create a dual agency relationship, you must have the consent agreement signed by both the buyer and the seller. Finally, the sales contract must confirm the fact that you informed both parties of the potential for dual agency.
Section 15-50: Designated Agency a)
A sponsoring broker entering into an agreement with any person for the listing of property or for the purpose of representing any person in the buying, selling, exchanging, renting, or leasing of real estate may specifically designate those licensees employed by or affiliated with the sponsoring broker who will be acting as legal agents of that person to the exclusion of all
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other licensees employed by or affiliated with the sponsoring broker. A sponsoring broker entering into an agreement under the provisions of this Section shall not be considered to be acting for more than one party in a transaction if the licensees specifically designated as legal agents of a person are not representing more than one party in a transaction. b)
A sponsoring broker designating affiliated licensees to act as agents of clients shall take ordinary and necessary care to protect confidential information disclosed by a client to his or her designated agent.
c)
A designated agent may disclose to his or her sponsoring broker or persons specified by the sponsoring broker confidential information of a client for the purpose of seeking advice or assistance for the benefit of the client in regard to a possible transaction. Confidential information shall not be disclosed by the sponsoring broker or other specified representative of the sponsoring broker unless otherwise required by this Act or requested or permitted by the client who originally disclosed the confidential information.
Designated agency is so important to the way we practice in Illinois that its explanation is worth repeating. The licensee who has direct contact with the buyer or seller is the only person considered to be the agent of that buyer or seller. A broker can have one licensee under his or her sponsorship representing the seller and another representing the buyer, and no one will be considered a dual agent. Furthermore, Section 15-50 may create more of an obligation by what it does not say than by what it does say. The law states that the broker is responsible for keeping confidential information confidential, but it does not specifically tell the broker how to achieve that confidentiality. There is no specific rule to which the broker can attribute his or her actions; therefore, the broker is open to question in any case where confidential information is disclosed.
Section 15-75: Exclusive Brokerage Agreements All exclusive brokerage agreements must specify that the sponsoring broker, through one or more sponsored licensees, must provide, at a minimum, the following services: a)
accept delivery of and present to the client offers and counteroffers to buy, sell, or lease the client’s property or the property the client seeks to purchase or lease;
b)
assist the client in developing, communicating, negotiating, and presenting offers, counteroffers, and notices that relate to the offers and counteroffers until a lease or purchase agreement is signed and all contingencies are satisfied or waived; and
c)
answer the client’s questions relating to the offers, counteroffers, notices, and contingencies.
This portion of the law is often referred to as the "minimum services provision." The requirement for licensees acting under exclusive brokerage agreements to provide these minimum services is intended to avoid problems that arise if a licensee presenting an offer on behalf of his or her buyer client is told to contact the seller directly. As we have stressed earlier, speaking directly with the seller in negotiating a contract could easily lead the seller to the conclusion that the buyer’s representative is actually representing the seller. This situation can lead to a claim of undisclosed dual agency or intentional misrepresentation.
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Summary of Article 15 Illinois seeks to provide full representation to all consumers of real estate services. To accomplish this, the state has set up rules that can be summarized as six key points: x x x x x x
Everyone you work with (buyers or sellers) must be either (a) represented by you or (b) given clear disclosure of the fact that you will not represent them. Who pays you has nothing to do with whom you represent. As a result of implied agency, any time you ask confidential questions or offer advocacy or advice to consumers, they have the right to believe you are representing them. Dual agency should be avoided and must be fully disclosed when practiced. The laws regarding real estate relationships apply to all real estate transactions, including those which are residential, industrial, commercial or agricultural. Facts regarding the physical condition of the property should never be treated as confidential and must be disclosed to all parties in the transaction.
Section 10 – 20: Sponsoring Broker; Employment Agreement a)
A licensee may perform activities as a licensee only for his or her sponsoring broker. A licensee must have only one sponsoring broker at any one time.
b)
Every broker who employs licensees or has an independent contractor relationship with a licensee shall have a written employment agreement with each such licensee. The broker having this written employment agreement with the licensee must be that licensee’s sponsoring broker.
c)
Every sponsoring broker must have a written employment agreement with each licensee the broker sponsors. The agreement shall address the employment or independent contractor relationship terms, including without limitation supervision, duties, compensation, and termination.
d)
Every sponsoring broker must have a written employment agreement with each licensed personal assistant who assists a licensee sponsored by the sponsoring broker. This requirement applies to all licensed personal assistants whether or not they perform licensed activities in their capacity as a personal assistant. The agreement shall address the employment or independent contractor relationship terms, including without limitation supervision, duties, compensation, and termination.
Administrative Rules - Section 1450.735: Employment Agreements a)
b)
c)
Every sponsoring broker shall have a written employment agreement with every sponsored licensee. Sole proprietors shall not be required to have an employment contract with themselves, but shall have an employment agreement with every sponsored licensee. The employment agreement shall be dated and signed by the parties. The agreement shall include, at a minimum, the employment or independent contractor relationship terms, including, but not limited to, supervision, duties, compensation, duration and termination. The term "duration", as used in this subsection, is not intended to require a specific termination date, but rather to allow the parties to negotiate the term of the agreement, such as "at will" or a specific length of time, and how the agreement is renewed or terminated. These provisions shall be included in the agreement. The sponsoring broker shall give to every employee and independent contractor a copy of the employment agreement and any modifications.
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While addressing the need for each licensee to have a sponsorship agreement with his or her sponsor, these rules and portions of the law also raise other issues. Each licensee and sponsor must conduct business at a location and in a manner that will keep the sponsored licensee’s affiliation with his or her one sponsor clear to the public and other licensees. This leads directly to the need for all licensees working at a sponsoring broker’s location to be sponsored by that broker.
Real Estate License Act of 2000 – Section 20 – 20: Disciplinary Actions; Causes a)
The Department may refuse to issue or renew a license, may place on probation, suspend, or revoke any license, reprimand, or take any other disciplinary or non-disciplinary action as the Department may deem proper and impose a fine not to exceed $25,000 upon any licensee or applicant under this Act or any person who holds himself or herself out as an applicant or licensee or against a licensee in handling his or her own property, whether held by deed, option, or otherwise, for any one or any combination of the following causes. A slightly modified list of actions that could result in discipline appears below: x x x x x x x x x x x x x
x
Advertising that is inaccurate, misleading, or contrary to the provisions of the Real Estate License Act. Making any substantial misrepresentation or untruthful advertising. Making any false promises of a character likely to influence, persuade, or induce. Pursuing a continued and flagrant course of misrepresentation or the making of false promises through licensees, employees, agents, advertising, or otherwise. Any misleading or untruthful advertising, or using any trade name or insignia of membership in any real estate organization of which the licensee is not a member. Representing or attempting to represent a broker other than the sponsoring broker. Failing to furnish copies upon request of documents relating to a real estate transaction to a party who has executed that document. Failure of a sponsoring broker to timely provide information, sponsor cards, or termination of licenses to the Illinois Department of Financial and Professional Regulation (IDFPR). Engaging in dishonorable, unethical, or unprofessional conduct of a character likely to deceive, defraud, or harm the public. Employing any person on a purely temporary or single deal basis as a means of evading the law regarding payment of commission to non-licensees on some contemplated transactions. Permitting the use of his or her license as a broker to enable a salesperson or unlicensed person to operate a real estate business without actual participation therein and control thereof by the broker. Any other conduct that constitutes dishonest dealing. Displaying a "for rent" or "for sale" sign on any property without the written consent of an owner or his or her duly authorized agent or advertising by any means that any property is for sale or for rent without the written consent of the owner or his or her authorized agent. Failing to provide information requested by the IDFPR, or otherwise respond to that request, within 30 days of the request.
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x x
x
x x
Advertising by means of a blind advertisement. (Note: “Blind advertisement” refers to an advertisement for real estate without the sponsoring broker’s business name.) Influencing or attempting to influence, by any words or acts, a prospective seller, purchaser, occupant, landlord, or tenant of real estate, in connection with viewing, buying, or leasing real estate, so as to promote or tend to promote the continuance or maintenance of racially and religiously segregated housing or so as to retard, obstruct, or discourage racially integrated housing on or in any street, block, neighborhood, or community. Inducing any party to a contract of sale or lease or brokerage agreement to break the contract of sale or lease or brokerage agreement for the purpose of substituting, in lieu thereof, a new contract for sale or lease or brokerage agreement with a third party. Negotiating a sale, exchange, or lease of real estate directly with any person if the licensee knows that the person has an exclusive brokerage agreement with another broker, unless specifically authorized by that broker. Advertising or offering merchandise or services as free if any conditions or obligations necessary for receiving the merchandise or services are not disclosed in the same advertisement or offer. These conditions or obligations include without limitation the requirement that the recipient attend a promotional activity or visit a real estate site. "Free" includes terms such as "award", "prize", "no charge", "free of charge", "without charge", and similar words or phrases that reasonably lead a person to believe that he or she may receive or has been selected to receive something of value, without any conditions or obligations on the part of the recipient.
Summary of Selected Sections of the Real Estate License Act and Rules The portions of the law we have reviewed above were chosen by the IDFPR with good reason. Either these prohibited actions have specifically led to recent complaints against licensees or the department’s investigators and members of the disciplinary board believe these items to be the underlying causes of problems reported to IDFPR. It is worth noting that issues of inaccurate or misleading advertising, including use and placement of signs, appear in various ways. The issue of not misleading the public as to who is each licensee’s sponsor and, therefore, responsible for the licensee’s actions is also raised more than once and therefore probably requires our working harder to keep our position in each transaction clear to those involved. And finally, we must be very sure not to interfere in another broker’s relationship with his or her client.
RECENT CHANGES AND ADDITIONS TO THE REAL ESTATE LICENSE ACT In August 2013, a few amendments to the Real Estate License Act went into effect. For example, a written brokerage agreement now must have an automatic expiration date or give the client the ability to terminate the agreement annually with 30 days’ written notice. In another change from 2013, a managing broker can return his or her license to the IDFPR and become a broker without needing to complete additional pre-license education or pre-license testing. Changes made to the law in 2010 were significant and are also worthy of a review. In the next few sections, we will highlight some of the changes made to the Real Estate License Act in 2010 that are probably still having an impact on your career. These changes included new licensing classifications.
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New Definitions Some terms were modified or added to the law in 2010. Some of those changes are explained below: “Broker” was modified to clarify that an individual or entity is required to be licensed when performing licensed acts, “whether in person or through any media or technology.” This change leaves no doubt that individuals practicing real estate brokerage solely through the internet or other electronic communication also require a license in Illinois. The definition of “Broker” was also modified to include individuals or entities that assist or direct in procuring or referring of “leads” or prospects, intended to result in the sale, exchange, lease or rental of real estate. “Leads” is a new definition meaning the name or names of a potential buyer, seller, lessor, lessee, or client of a licensee. As a result of these two modifications, an individual now clearly requires a license if hired by a licensee to cold-call prospects to determine their interest in selling property. In addition, a company or individual will require a license if it sells, for example, a list of names of potential real estate investors to a licensee.
New License Classifications Numerous changes were made to the law in 2010 to implement a new structure of licensure for Illinois real estate brokerage licensees. These changes to the law and the administrative rules have resulted in the following: x
Illinois continues to have two categories of licensure, but instead of Salesperson and Broker, the categories are Broker and Managing Broker. x All licensees must hold a license as either a Broker or a Managing Broker. The Salesperson license category no longer exists. x No individual can act as a managing broker for more than 90 days after an appointment as a managing broker has been filed with the IDFPR without obtaining a Managing Broker’s license. x All self-sponsored licensees must hold a Managing Broker license. x Individuals holding the Managing Broker license but not actually acting as a managing broker are not permitted to hold themselves out to the public as Managing Brokers. x The expiration date for Broker licenses is April 30 of even-numbered years. x The expiration date for Managing Broker licenses is April 30 of odd-numbered years. x Education requirements for new Broker applicants must include 90 hours of prelicense education plus 30 hours of post-license education (to be completed by the new Broker’s first license renewal). x Education requirements for Managing Broker applicants must include 45 hours of pre-license education (in addition to the 120 hours described above for Broker applicants). x An individual who wishes to become licensed as a Managing Broker must have been licensed as a Salesperson or Broker for two of the three years before applying for a Managing Broker license. These new education, experience and licensure requirements are designed to increase accountability for licensees, especially managing brokers who are responsible for escrow funds and supervision of other licensees. © Real Estate Institute
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Other Changes and New Provisions While most licensees have been focused on the changes to the license classifications, we must not ignore other important changes to the law. These changes include the following: x
New Section 10-35 contains specific provisions regarding “Internet and related advertising,” including: o A requirement that licensees must disclose to consumers in a timely and apparent manner any intention to sell or share the consumer’s information gathered via the Internet or other electronic communication. o
Prohibitions on other deceptive conduct when using the Internet or other electronic advertising. Such conduct includes (i) using a URL or domain name that is deceptive or misleading; (ii) deceptively or without authorization framing another brokerage or multiple listing service website; or (iii) engaging in the deceptive use of metatags, keywords or other devices and methods to direct, drive or divert Internet traffic or otherwise mislead consumers.
These new provisions demonstrate the legislature’s recognition of new technologies and the importance of regulation to protect the public from unscrupulous acts. x
New Section 10-40 requires that every brokerage company or entity, other than a sole proprietorship with no other sponsored licensees, adopt a company or office policy dealing with topics such as: o The agency policy of the entity. o
Fair housing, nondiscrimination and harassment.
o
Confidentiality and client information.
o
Advertising.
o
Training and supervision of sponsored licensees.
o
Required disclosures and use of forms.
o
Handling of risk management matters.
o
Handling of earnest money and escrows.
The rules clarify that these policies must be in writing. Written policies will certainly provide the best evidence of compliance with these provisions, which are intended to ensure proper supervision and communication with sponsored licensees. Also, please note these items are only examples of topics that are to be included in an office policy manual. Licensees should consider all of the issues affecting their particular brokerage and refrain from limiting their policies to these specific matters. x
Some changes to the law are intended to improve the IDFPR’s capacity to investigate complaints against real estate licensees: o The IDFPR is required to employ a minimum of one investigator per 10,000 licensees and one prosecutor per 20,000 licensees in order to have sufficient staff to perform its required functions. o
The law now allows the IDFPR to utilize “peer review advisors” to conduct the initial investigation of complaints against licensees. Peer review advisors are licensees who have met qualifications established by the IDFPR.
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Summary of Recent Changes and Additions There were many significant changes and additions made to the Real Estate License Act in 2010. In many cases, these changes may affect your day-to-day activities, policies and procedures. Every licensee is responsible for remaining aware of ongoing changes to the laws and regulations governing his or her practice.
ESCROW The Real Estate License Act defines escrow money as follows: "Escrow moneys" means all moneys, promissory notes or any other type or manner of legal tender or financial consideration deposited with any person for the benefit of the parties to the transaction. A transaction exists once an agreement has been reached and an accepted real estate contract signed or lease agreed to by the parties. Escrow moneys includes without limitation earnest moneys and security deposits, except those security deposits in which the person holding the security deposit is also the sole owner of the property being leased and for which the security deposit is being held. The IDFPR tells us that the largest numbers of complaints filed against real estate licensees by the public relate to the mishandling of earnest money. It is also true that these complaints are not usually about the bookkeeping process or what bank is being used. The public complaints are more often about the timely collection, deposit or return of earnest money. Upon investigation, it is found that many of these problems are caused by the actions of sponsored licensees and not the independent decisions or actions of the sponsoring broker. Sometimes it is difficult to decide if these licensees don’t know the law and rules regarding the handling of earnest money or if they are just being neglectful. But regardless of the reason for these problems, a review of escrow rules is important.
Disciplinary Actions and Escrow Accounts Article 20-20 of the Real Estate License Act sets forth causes for disciplinary action associated with the mishandling of escrow moneys. These sections appear below in an abbreviated form and become the basis for the rules that accompany the law: The Department may refuse to issue or renew a license, may place on probation, suspend, or revoke any license, reprimand, or take any other disciplinary or non-disciplinary action as the Department may deem proper or impose a fine not to exceed $25,000 upon any licensee under this Act or against a licensee in handling his or her own property, whether held by deed, option, or otherwise, for any one or any combination of the following causes: o Failure to account for or to remit any moneys or documents coming into his or her possession that belong to others. o Failure to maintain and deposit in a special account, separate and apart from personal and other business accounts, all escrow moneys belonging to others entrusted to a licensee while acting as a real estate broker, escrow agent, or temporary custodian of the funds of others or failure to maintain all escrow moneys on deposit in the account until the transactions are consummated or terminated, except to the extent that the moneys, or any part thereof, shall be (A) disbursed prior to the consummation or termination (i) in accordance with the written direction of the principals to the transaction or their duly authorized agents, (ii) in accordance with the directions providing for the release, payment, or © Real Estate Institute
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distribution of escrow moneys contained in any written contract signed by the principals to the transaction or their duly authorized agents, or (iii) pursuant to an order of a court of competent jurisdiction; or (B) deemed abandoned and transferred to the Office of the State Treasurer to be handled as unclaimed property pursuant to the Uniform Disposition of Unclaimed Property Act. Escrow moneys may be deemed abandoned under this subparagraph (B) only: (i) in the absence of disbursement under subparagraph (A); (ii) in the absence of notice of the filing of any claim in a court of competent jurisdiction; and (iii) if 6 months have elapsed after the receipt of a written demand for the escrow moneys from one of the principals to the transaction or the principal’s duly authorized agent. The account shall be non-interest bearing, unless the character of the deposit is such that payment of interest thereon is otherwise required by law or unless the principals to the transaction specifically require, in writing, that the deposit be placed in an interest bearing account. o Failure to make available to the Department all escrow records and related documents maintained in connection with the practice of real estate within 24 hours of a request for those documents by Department personnel. o Commingling the money or property of others with his or her own money or property. o Requiring a party to a transaction who is not a client of the licensee to allow the licensee to retain a portion of the escrow moneys for payment of the licensee's commission or expenses as a condition for release of the escrow moneys to that party.
Overview of Escrow Rules To give licensees a fuller understanding of what is expected of them when handling escrow moneys, the administrative rules implementing the law set forth detailed requirements for the handling of the public’s funds entrusted to a broker’s care. We will not go over all the rules, many of which only apply to the sponsoring broker. However, we do want to include the rules that seem to cause a large number of complaints and which can stem from the actions of sponsored licensees as much as those of the sponsoring broker. x x x
If an interest-bearing account is required, the recipient of the interest shall be specifically indicated, in writing, by the principals of the transaction. The sponsoring broker shall provide a receipt to the payor of any cash constituting escrow funds and shall retain a copy of the receipt. All escrow moneys accepted by a sponsoring broker shall be placed in the sponsoring broker's escrow account not later than the next business day following the transaction. A transaction exists once an accepted real estate contract is signed or lease agreed to by the parties. If such funds are received on a day prior to a bank holiday or any other day on which the bank or savings and loan association is closed, such funds shall then be deposited on the next business day upon which the depository is open.
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x
x
A sponsoring broker serving as escrow agent shall notify all principals in writing if a principal fails to tender escrow moneys, when a principal's payment as escrow moneys is dishonored by the financial institution on which it was drawn, or when there appears on the face of the governing contract to be a deficiency in the amount on deposit. Sponsoring brokers shall institute office policies to ensure that the sponsored licensees tender escrow moneys received in compliance with these rules. Sponsored licensees may not maintain their own escrow accounts.
Summary The law and rules give the necessary guidance for sponsoring brokers and their sponsored licensees to properly carry out their duties when holding earnest money. To sum it up; it is not our money. All actions regarding earnest money should come first and foremost from the joint instructions of the parties to the transaction for which the earnest money is being held. All actions required should take place in a timely manner, and an accurate and complete paper trail should be kept. Earnest money should never be used in any way to benefit you or your sponsor or be mixed with your funds or your sponsor’s funds.
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CHAPTER 1 Fair Housing, Agency, License Law and Escrow STUDY QUESTIONS Answer the following questions “true” or “false”: 1. Advertising is a separate issue and has no place in a discussion of fair housing. 2. Familial status refers to an adult with a child 18 or younger living with him/her. 3. The Illinois Human Rights Act protects additional classes of individuals not protected under federal law. 4. Performance of any ministerial act will create an agency relationship. 5. Upon completion of the brokerage agreement, confidential information is no longer confidential and may be disclosed. 6. A licensee may act as a dual agent only with the written consent of both clients. 7. Licensed personal assistants are required to have a written employment agreement with the sponsoring broker. 8. Employing any person on a single deal-basis as a means of evading the law is illegal. 9. All escrow moneys must be placed in interest-bearing accounts. 10. A sponsored licensee is permitted to open an escrow account in his or her own name if requested to do so by the client.
Answers to Study Questions appear on Page 74
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CREATING THE TRANSACTION PROSPECTING Real estate licensees have always worked hard to find new business. In the past, they sent mailings, made phone calls or knocked on doors until a prospect was found. Over the last several years, however, our options have increased. We can still send mailings, make phone calls or take a walk through neighborhoods, but now we can also send messages by fax or bulk email. We can even find business by becoming active on social networking websites such as LinkedIn®, Facebook® or Twitter®. Technology has expanded our options, but we must also be aware of the new dangers and regulations that have come with these advances. Licensees today must find ways to utilize technology without losing respect for people’s privacy.
Using the Telephone Consumers can avoid receiving unwanted phone solicitations by putting their phone number on a national do-not-call list. In most instances, businesses (including real estate licensees) are required to check the list before soliciting by phone. The list is known as the “Do Not Call Registry,” and the rules pertaining to it are enforced by the Federal Trade Commission, the Federal Communications Commission and the U.S. Attorney General’s office. Violators are subject to fines of up to $16,000 per call. There are a few important exceptions that let businesses call numbers on the Do Not Call Registry: x x
You can call consumers with whom you currently have a business relationship. You can call consumers with whom you had an existing business relationship within the preceding 18 months. (The 18-month period dates back to the date of the consumer’s last most recent purchase, delivery or payment.) x You can call consumers who have inquired about your services (or submitted an application to your company) within the past three months. x You can call consumers if they have given prior written consent. However, regardless of those exceptions, a party cannot call a consumer if the consumer has asked not to receive any more phone solicitations. The FCC has ruled that real estate licensees are not making phone solicitations subject to the Do Not Call rules when they are representing a buyer and are calling a for-sale-byowner seller to discuss the sale of property to that buyer.
Using the Fax Machine The Telephone Consumer Protection Act prohibits unsolicited facsimile (fax) advertisements. In addition, the Junk Fax Prevention Act directed the FCC to amend its rules regarding fax advertising. It is unlawful to send unsolicited advertisements to any fax machine (including those at businesses or residences) without the recipient’s prior express invitation or permission. Fax advertisements, however, may be sent to recipients with whom the sender has an “established business relationship” (EBR). The FCC rules define an EBR as “a prior or existing relationship formed by a voluntary two-way communication between a person or entity and a business or residential subscriber with or without an exchange of consideration, on the basis of an inquiry, application, purchase or transaction by the business or residential subscriber regarding products or services offered by such person or entity, which relationship has not been previously terminated by either party.” © Real Estate Institute
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Even if an EBR exists, the recipient of the fax must have provided the fax number voluntarily. This requirement is satisfied if any of the following statements are true: x x x
The sender obtained the fax number directly from the recipient. The sender obtained the fax number from the recipient’s own directory, advertisement or website, unless the recipient has noted on such materials that it does not accept unsolicited advertisements at the fax number. The sender obtained the number from a directory compiled by a third party and has taken reasonable steps to verify that the recipient consented to have the number listed.
Using Email The Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, popularly known as the “CAN-SPAM Act,” establishes requirements for commercial email messages. It also gives recipients the right to have themselves removed from a company’s email list and spells out tough penalties for violations. The CAN-SPAM Act covers all commercial messages, which the law defines as “any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service.” Real estate licensees need to understand that the law governs email announcements of new listings and open houses. Each separate email in violation of the CAN-SPAM Act is subject to penalties of up to $16,000, so non-compliance can be costly. The law requires that all email messages contain the following elements: x x x
True and accurate header information. Subject lines that accurately reflect the content of the message. Clear and conspicuous disclosure of the fact that the message is an advertisement. x A valid physical postal address for the sender. x A method to “opt-out” of receiving future emails at no charge. (Senders must honor opt-out requests within 10 business days of receiving them.) Senders of commercial email must monitor what others are doing on their behalf. The law makes it clear that even if a sender hires another company to handle email marketing, the sender cannot contract away the legal responsibility to comply with the law. Both the company whose product is promoted in the message and the company that actually sends the message may be held legally responsible for wrongdoing. Resourceful licensees do not let anti-solicitation laws hinder their success. They find ways to legally work within the guidelines of the law and continue to grow their business.
MEETING THE SELLERS Let’s assume that you have secured an appointment to meet with some property owners. The owners may just want to learn what services you offer or find out the current value of their property. But if they invite you in, there is a good chance they are thinking about becoming sellers. Your first appointment with owners is the perfect opportunity to gather information, explain the marketing process, determine the property’s value and assist the owners in determining their equity. While going over all of these things with them, you can become better acquainted with their situation and specific needs.
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PERFORMING A COMPARABLE MARKET ANALYSIS The most common reason owners want to talk to a real estate licensee is to learn the current value of their home. Because of the time we spend marketing for sellers and locating property for purchasers, we are presumed to have excellent knowledge of market conditions. In order to calculate a reasonable estimate of a property’s value, we need to perform a “comparable market analysis” (CMA). The analysis focuses on current and future market trends as they apply to a specific property. Licensees prepare a CMA in a manner similar to the way an appraiser uses the comparison approach in a formal appraisal. To complete the CMA correctly, you need to consider zoning information and the sales price of similar property.
Zoning One of the first and easiest steps in determining the value of a property is to check the current zoning. If zoning rules will allow the property to be used for a purpose other than for its current use, you should determine what the highest and best use for the property would be. This will help you decide if the property should be evaluated based on its current use or another allowable use that would indicate a higher value. Current zoning information for many communities may be obtained online. However, a visit to the building and zoning department of a village or city will often provide more current information, including details about contemplated changes that may affect the property in the future.
Comparables The sales comparison approach is perhaps the simplest and most common method used to determine a property’s value. This approach estimates market value by comparing the property being evaluated to similar properties that have recently sold, are currently being offered for sale, or have been offered for sale and not sold. This is the primary method considered when appraising single-family residences that are not income-producing properties. (For income-producing properties, such as apartment buildings, the licensee estimates value based on the income from the property being evaluated and the rate of return demanded by purchasers in recent sales of similar properties.) Typically, three to six comparable sales are needed for an accurate estimate of a property’s value. Since real properties are unique, exact comparisons are not possible. But you should still aim to make as close of a comparison as you can. Location is the primary determining factor in the value of real property, so a licensee should compare the property to recently sold properties in the same neighborhood. The comparable properties should also be structurally similar to the subject property. Finally, since economic conditions have a major impact on the sales price of a property, a comparable property’s date of sale is also important. Once we have found very similar comparables, adjustments must be made for any significant remaining differences between the subject property and the comparables. If the comparable has a feature that makes it more valuable than the subject property, we subtract from its selling price to arrive at a more accurate comparison. If a comparable property has features that make it less valuable than the subject property, we find a more accurate comparison by adding to the comparable’s selling price. Adjustments should be made for differences in physical condition as well as for economic changes due to market timing. Another important consideration is any special financing that was involved with the sale of a comparable property. © Real Estate Institute
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Additional Aspects Affecting Value If an owner transfers property to a loved one at a very nominal price, the sale does not reflect the true current market at the time of sale and should not be used as a comparable in preparing a CMA. Likewise, when owners are forced to sell quickly for a reason beyond their control, the sales price cannot be used as a comparable unless it is adjusted appropriately. Reasons to consider include foreclosure, short sale, bankruptcy, workrelated transfers, illness and death.
DISCLOSURE OF PROPERTY CONDITION Stigmatized Property Real estate licensees in Illinois are not required to research issues or occurrences at a location that do not have a direct physical or financial effect on the property. Examples of these types of issues are a ghost sighting or violent crime that occurred at the property. However, when interviewing a seller for purposes of estimating the market value, it is probably a good idea to ask about these things. After all, they may have an impact on a buyer’s offer.
Physical Condition Physical defects certainly impact the property’s value, and it is illegal to conceal them. In Illinois, sellers of residential property containing four or less units are required to complete the Residential Real Property Disclosure Report. Exceptions exist for certain legal sales, transfers between co-owners, and owners who have never occupied or had management responsibility for the property. The report covers most of the common physical defects that a property might have. It is important that the sellers complete the Residential Real Property Disclosure Report on their own. If they need help, they should seek out family or legal counsel. Part of the benefit of the disclosure requirement is that it separates the licensee from the sellers’ statements about the property. If the information is later found to be incorrect, the agent is not liable as long as the agent has proof that the seller provided the information and that the agent did not know that the information was false. The licensee should not influence a seller’s statements about physical condition. Although the requirement for a seller to complete the form only applies to residential property, it is just as important to question the seller and investigate the condition of commercial or industrial property. Keep in mind, though, that licensees should only work with property types about which they have knowledge. Whether the licensee represents the buyer or seller in a transaction, it is also necessary for the licensee to inspect the property. Real estate licensees are expected to know more about the property than the general public and may see signs of problems that even an owner may not recognize. It is important for the licensee to question an owner or the owner’s agent about any aspects of physical condition that could be problematic.
Lead-Based Paint and Radon Disclosures Federal law requires a seller of residential property built prior to 1978 to complete a disclosure form stating any facts the seller has regarding the presence of lead-based paint. Illinois law also requires disclosure regarding the presence of radon in residential property. When meeting with sellers, you should be making them aware of these disclosure requirements.
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OWNER’S EQUITY AND NET RESULT OF SALE Even if owners do not tell us that they are planning to sell, if they invite us into their property, we can assume they are considering a sale. Part of an agent’s job is to help owners understand how much they are likely to realize from a sale of their property. To do this, a licensee must know how to calculate an owner’s equity and estimate the expenses that a seller will likely incur at the time of closing.
Equity An owner’s equity in property is the difference between the value of the property and all of the debts related to the property. The following property-related debts can negatively impact the owner’s equity: x Mortgage liens currently recorded on the property’s title records. x Unpaid real estate taxes or special assessments. x Unpaid utility bills. x Any other unpaid bills for work related to the real estate. By subtracting the total of all these items from the value arrived at from the CMA, we are left with the owner’s estimated equity in the property.
Estimated Proceeds of Sale Once we have established the estimated property value and the owner’s equity, we can go further and estimate the net proceeds of a sale. To arrive at an estimate of the proceeds of a sale, we must first calculate what we believe will be the amount of each cost that the owner will incur when selling. A list of the expenses typically incurred by sellers has been provided here for your review. Note that the bottom portion can be used to estimate the net proceeds of a sale. SELLER’S NET SHEET FOR REAL ESTATE SALE Estimated Closing Costs Attorney’s fees
$
Escrow fee or fee for other closing services
$
Real estate tax proration
$
Transfer tax fees
$
Title insurance, search and examination fees
$
Home warranty fees
$
Real estate brokerage fees
$
Estimated loan balance(s)
$
Other
$
Total Estimated Closing Costs
$
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Estimated Proceeds to Seller at Closing Sales price
$
Less estimated closing costs
$
Estimated Net Proceeds
$
Recommendations For Enhancing Value An undisputed truth in the real estate business is that the condition of a property affects its worth and desirability to a purchaser. A property in disrepair is likely to suffer a drop in market value. When buyers tour a property, they notice all the imperfections. Some buyers will use these as negotiating points, while others will be unable to see beyond the loud-color paint, outdated wallpaper or shaggy old rug and will head for the exit door. When discussing value and the possibility of a sale, an agent should make the seller aware of how a buyer views property and make suggestions regarding cleaning, updates, worthwhile repairs and proper staging of the property’s interior and exterior. Licensees should explain the benefit of these changes and how they will help maximize value.
LISTING AGREEMENTS After going over the CMA, helping the sellers understand the current market and estimating the amount they are likely to realize from a sale, it is time to explain the marketing process and the benefits of working with you and your firm. The relationship between you, your firm and the seller will be determined by the “listing agreement.” Listing agreements create and govern the relationship between a seller of real estate and a sponsoring broker who is supposed to find a buyer for the property. Simply stated, the listing contract is an employment agreement stating that the licensee is being hired to find a buyer. The seller is not obligated to sell the property. Also, the seller is only obligated to pay the sponsoring broker if the licensee produces a buyer who is ready, willing, and able to accept the terms that are set forth in the seller’s listing agreement. Providing the ready, willing and able purchaser is known as “procuring cause.” When there are arguments about procuring cause, they are often settled by the courts on a case-by-case basis. The listing is extremely important to both the licensee and the seller. For the licensee, having a listing to advertise means an opportunity to generate prospects for other properties as well as the listed property. For the seller, the listing of property is significant because the real estate being sold often represents the seller’s largest asset and biggest financial investment.
Listing Agreements and Contract Law Listing agreements are contracts. Therefore, the common-law principles that regulate all contracts apply to listing agreements. A legal doctrine known as the “statute of frauds” states that a contract relating to a real estate sales transaction must be in writing to be enforceable in a court of law. As a result, most states require listing agreements to be in writing. Illinois license law requires exclusive listings to be in writing, whereas open listings need not be written. (The different kinds of listings will be explained shortly.) Because proving
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the terms of an oral agreement can be difficult, it is always a good idea to use written agreements. It is important to note that the sales contract is an agreement between the buyer and seller. A licensee cannot enforce any payment of commission mentioned in the sales contract since the licensee is not a party to that contract. Any change in the commission stated in the original listing agreement must be made by a separate agreement between the sponsoring broker and seller.
Types of Listing Agreements There are many types of listing agreements. In the next several sections, we will study open listings, exclusive agency listings, exclusive right to sell listings and net listings. We will also discuss the multiple listing services that serve our industry.
Open Listing “Open listings” are unilateral (one-sided) contracts in which the seller promises to pay a brokerage fee to the sponsoring broker who provides a buyer for the property. The seller can make this offer to one or many sponsoring brokers. In an open listing, the sponsoring broker has no obligation to put forth any effort to find a purchaser. Only the seller makes a commitment. A seller who gives an open listing is sometimes compared to an owner of a lost pet who posts a reward poster. If you see the reward poster, you have no obligation to try to find the pet. But if you do find and return the pet, the owner must pay the reward. Similarly, when the seller offers an open listing, the sponsoring broker has no obligation to actively seek a purchaser for the property. The open listing only obligates the seller to pay a commission if the sponsoring broker produces a buyer for the property. In an open listing, the seller retains the right to sell the property directly without the assistance of the licensee. Since the seller does not pay a commission if he sells to a buyer who is not brought to him by the licensee, in the event of multiple offers, a purchaser brought in by the licensee is at an economic disadvantage. The licensee’s purchaser must pay more in order for the seller to receive the same price after paying the commission. This explains why licensees may be reluctant to show open listings to prospective purchasers. Before entering into an open listing, a licensee should put the listing agreement in writing to avoid problems if the seller later changes his or her mind regarding the understanding.
Exclusive Agency Listing “Exclusive agency listings” are bilateral (two-sided) contracts. The seller and sponsoring broker make commitments to each other. The seller agrees to pay the sponsoring broker a commission if the property is sold through any agent, and the sponsoring broker agrees to make an effort to find a buyer for the property. In exclusive agency listings, sellers retain the right to sell the property themselves without paying a fee. This type of agreement is similar to the open listing in that it creates a disadvantage for a licensee’s prospect if the seller has found a prospect without the licensee’s assistance.
Exclusive Right to Sell Listing The “exclusive right to sell listing” is also a bilateral (two-sided) contract. Both the seller and sponsoring broker make commitments. The seller promises to pay the sponsoring broker a commission even if the seller sells the property without the sponsoring broker’s © Real Estate Institute
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assistance. The sponsoring broker promises to spend time and money to promote the sale of the property. The exclusive right to sell listing is the most desirable listing for the licensee. It provides for the sponsoring broker to be paid if the property is sold regardless of who sells it. The exclusive right to sell listing also benefits the seller because when the sponsoring broker is obligated to make an effort to find a purchaser and knows he or she is not competing with the seller, it will more likely result in the sale of the property.
Net Listing In a “net listing,” the seller sets the price he or she wants to realize from the sale and agrees to pay the sponsoring broker a fee equal to any amount paid above that price. Since it is presumed that the sponsoring broker has superior knowledge of the marketplace, one might think that the broker would only agree to work on this basis if the seller’s “net” price was low enough to be advantageous to the broker. Thus, net listings may give the appearance that the broker is taking advantage of an uneducated seller. Due to this negative impression, most sponsoring brokers rarely use net listing arrangements. The National Association of REALTORS® Code of Ethics considers the use of net listings an unethical practice.
Multiple Listing Services Membership in a multiple listing service allows a licensee to share the opportunity of selling his or her listing with other licensees, and allows the sponsoring broker the chance to cooperate in the sale of other brokers’ listings with his or her own buyers. Licensees are not and cannot legally be required to join a multiple listing service. Still, most urban areas of the United States have active multiple listing services and most active licensees willingly join to gain the benefits of the cooperative service. Antitrust laws prohibit multiple listing services from dictating the way their members do business or the types of listing agreements members use. When a listing is placed in a multiple listing service, the listing sponsoring broker indicates the amount of commission he or she will share with the selling sponsoring broker. The listing sponsoring broker also must indicate any exception or special conditions that would allow the seller to pay a lesser commission or avoid a commission entirely. So far, these requirements have not been found to be in violation of antitrust law since they do not limit competition or result in price fixing.
LICENSE LAW AND RULES Provisions in Illinois license law require licensees to check available sources of information and find out if a seller’s property is already listed with another broker before making contact with the seller. It is against the law to induce a seller to break a listing contract with another broker for the purpose of substituting a listing of your own. The current rules pertaining to these and other issues regarding brokerage agreements and referrals are shown below:
Rules – Section 1450.770 Brokerage Agreements and Listing Agreements a)
All exclusive brokerage agreements, including all exclusive listing agreements and exclusive buyer brokerage agreements, shall be in writing and shall indicate the minimum services that must be provided as indicated in Section 15-75 of the Act. Failure to include language in a brokerage agreement providing for minimum services as specified in Section 15-75 of the Act or language in the brokerage agreement waiving those minimum services provided for in Section 15- 75 of the
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Act will, under the definition of “exclusive brokerage agreement” in Section 1-10 of the Act, result in the brokerage being considered to be nonexclusive. b)
c)
All written buyer brokerage agreements, whether exclusive or non-exclusive, shall contain the following: 1)
the agreed basis or amount of compensation and time of payment;
2)
the duration of the buyer brokerage agreement, clearly set forth;
3)
the name of the sponsoring broker and the buyer;
4)
the signatures of the buyers and an authorized signator on behalf of the buyer or sponsoring broker;
5)
the duties of the buyer's broker.
All written listing agreements, whether exclusive or non-exclusive, shall contain the following: 1)
the list price;
2)
the agreed basis or amount of commission and the time of payment of the commission;
3)
the duration of the listing agreement, with a definite termination date clearly set forth;
4)
the name of the sponsoring broker and seller;
5)
the identification of property involved (address or legal description);
6)
the signatures of the owners and an authorized signator on behalf of the owner or sponsoring broker;
7)
the duties of the listing broker.
d)
Pursuant to Section 10-25 of the Act, no licensee shall obtain any written brokerage agreement containing a clause automatically extending the period of the contract. Any written brokerage agreement not containing such a provision for automatic expiration shall be void.
e)
Every written brokerage agreement shall expressly provide that no amendment or alteration to the terms, with respect to the amount of commission or with respect to the time of payment of commission, shall be valid or binding unless made in writing and signed by the parties.
f)
No licensee shall use real estate contract forms to change previously agreed commission payment terms.
g)
If a listing agreement provides that, in the event of a default by a buyer, the broker's full commission or fees will be paid out of an earnest money deposit, with the remainder of the earnest money to be paid to the seller, the provision shall appear in the listing agreement in letters larger than those generally used in the listing agreement.
h)
Each brokerage agreement shall clearly state that it is illegal for either the owner or the broker to refuse to display or sell to any person because of one's membership in a protected class, e.g., race, color, religion, national origin, sex, ancestry, age, marital status, physical or mental handicap, familial status, sexual
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orientation, unfavorable discharge from the military service, order of protection status or any other class protected by Article 3 of the Illinois Human Rights Act. i)
Each brokerage agreement for a residential property of 4 units or less that provides for a protection period subsequent to its termination date shall also provide that no commission or fee will be due and owing pursuant to the terms of the brokerage agreement if, during the protection period, a valid, written brokerage agreement is entered into with another licensed real estate broker.
j)
A broker may discuss a possible future brokerage agreement with a consumer whose property is exclusively listed with another broker or who is subject to a written exclusive buyer brokerage agreement only under the following conditions: 1)
when the consumer initiates the contact, or
2)
when the current broker, upon request, fails to provide within 10 calendar days the type and expiration date of the brokerage agreement between the consumer and the current broker. The request and response shall be in writing and mailed return receipt requested. If the above information is not received within 14 calendar days, the broker may then contact the consumer only if this information cannot be obtained from another source of shared broker information.
Rules – Section 1450.775 Written Agreements a)
No licensee shall solicit, accept or execute any contract or other document relating to a real estate transaction that contains any blanks with the intention of filling them in after signing or initialing the contract or other document.
b)
No licensee shall make any addition to, deletion from or alteration of any signed contract or other document relating to a real estate transaction without the written, telefax or telegraphic consent or direction from all signatories. No licensee shall process any contract or other document that has been altered after being signed, unless each addition, deletion or alteration is signed or initialed by all signatories at the time of the addition, deletion or alteration.
c)
A true copy of the original or corrected contract or other document relating to a real estate transaction shall be delivered or mailed within 24 hours after the time of signing or initialing the original or correction to the person signing or initialing the contract or other document.
d)
All forms used by licensees intended to become binding real estate contracts shall clearly state that fact in the heading in large bold type. No licensee shall use a form designated Offer to Purchase when it is intended that the form shall be a binding real estate contract.
Rules – Section 1450.780 Referral Fees and Affinity Relationships a)
No licensee may pay a referral fee to an unlicensed person who is not a principal to the transaction. In order to meet the license requirement, the person receiving the referral fee must be duly licensed as a real estate broker or managing broker in Illinois or hold an equivalent license of another state or country of domicile. If the person's equivalent country of domicile does not have a licensing statute for real estate agents, then, in order to receive a referral fee, the person must comply with the laws, if any, of his or her country concerning the practice of real estate brokerage business.
b)
Request of Referral Fee
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1)
No licensee may request a referral fee unless reasonable cause for payment of the referral fee exists. Reasonable cause for payment of a referral fee means that: A)
an actual introduction of a client has been made to a licensee; or
B) a contractual referral fee relationship exists with the licensee. 2)
The fact that reasonable cause to demand a referral fee exists does not necessarily mean that a legal right to the referral fee exists.
3)
A licensee is prohibited from interfering with the agency relationship of another licensee or attempting to induce a client to break a listing or an exclusive representation agreement with another licensee for the purpose of replacing that agreement with a new listing or representation agreement in order to obtain a referral fee. For purposes of this Section, an agency relationship shall be deemed to exist when a written, exclusive agency agreement (either a listing or buyer representation agreement) is entered into. Interfering with the agency relationship of another licensee includes, but is not limited to: A)
demanding a referral fee from another licensee without reasonable cause;
B) threatening to take harmful action against the client of another licensee because of their existing agency relationship and in order to obtain a referral fee; or C) counseling the client of another licensee on how to terminate or amend an existing agency contract in order to obtain a referral fee. 4)
Any activities that involve the communication of corporate relocation policies or benefits to a transferring employee, as long as that communication does not involve advice or encouragement on how to terminate or amend an existing agency contract, shall not be considered interference under subsection (b)(3).
The most important part of your presentation to a seller is a discussion of how you and your firm will perform your obligations under the listing agreement. This requires you to have a complete understanding of the elements of the listing agreement, including the parts that must be included by law and those that are negotiable. The law also requires the broker to have written consent before placing a “For Sale” sign on the property or advertising that the property is for sale. This consent should be included in the listing agreement. It should also be noted that, as of August 2013, written listing agreements must either have a specific, automatic expiration date or annually give the client a chance to cancel the agreement with 30 days’ written notice. Failure to comply with this requirement is a violation of license law and could lead to disciplinary action. Your presentation to a prospective seller should include a discussion of the points required by law and how they benefit and protect the seller. Special attention should be given to the areas of fair housing and discriminatory practices because the broker could become liable for the seller’s wrongful actions. © Real Estate Institute
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Disclosure is also required regarding the sharing of compensation. According to Section 15-35 of the Real Estate License Act, “The licensee representing the consumer shall discuss with the consumer the sponsoring broker's compensation and policy with regard to cooperating with brokers who represent other parties in a transaction.”
Rules – Section 1450.760 Disclosure Of Compensation Pursuant to Section 10-10(b) of the Act, a licensee shall disclose, in writing, any compensation the licensee expects to receive or that he or she knows the licensee's sponsoring broker will receive, arising out of a referral to any person or entity whose services are related to the transaction, including any financial institution, insurance broker, mortgage broker, home inspector or any other third party. The disclosure shall indicate the relationship between the licensee or the licensee's sponsoring broker and the referred person or entity, and any interest greater than 1% (see Section 10-10(c) of the Act) that the licensee or the licensee's sponsoring broker may have in the referred person or entity.
PROTECTION CLAUSES “Protection clauses,” while legal, are often misunderstood by sellers and should be carefully explained. Protection clauses allow a broker to collect a fee, during a specified period, after the expiration of a listing if the property is sold to someone who was brought in by the broker and saw the property while the listing was still active. To avoid double commissions for residential sellers, Illinois law requires that these clauses be waived if the property is listed with another sponsoring broker at the time of sale.
AGENCY RELATIONSHIPS When meeting with a seller, one of the primary points of discussion must be an explanation of your agency relationship. The seller must be made aware that the law considers you to be the seller’s designated agent. You must explain that you will be the seller’s designated agent to the exclusion of all others. Unless your agency relationship is terminated, nobody else from your company or any other company will be the seller’s agent. When you meet with the seller to try to secure a listing, you are entering into a brokerage agreement and must make disclosures in accordance with the following language from Section 15-35 of the Real Estate License Act: a)
A licensee shall advise a consumer in writing of the following no later than beginning to work as a designated agent on behalf of the consumer: 1)
That a designated agency relationship exists, unless there is written agreement between the sponsoring broker and the consumer providing for a different brokerage relationship.
2)
The name or names of his or her designated agent or agents. The written disclosure can be included in a brokerage agreement or be a separate document, a copy of which is retained by the sponsoring broker for the licensee.
b)
The licensee representing the consumer shall discuss with the consumer the sponsoring broker’s compensation and policy with regard to cooperating with brokers who represent other parties in a transaction.
c)
A licensee shall disclose in writing to a customer that the licensee is not acting as the agent of the customer at a time intended to prevent disclosure of confidential
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information from a customer to a licensee, but in no event later than the preparation of an offer to purchase or lease real property. Although current license law considers the licensee to be working with the seller as his or her designated agent, the listing agreement itself is considered to be the property of the sponsoring broker. If the agent leaves the company, the contract still belongs to the agent’s sponsoring broker.
DUAL AGENCY It is your obligation to inform the seller at your first meeting if you anticipate the possibility of also representing a buyer who is interested in the seller’s property. When the same licensee represents both the buyer and seller in the same transaction, “dual agency” is created. Disclosure to the seller is required because both the buyer and the seller receive less service in a dual-agency relationship than they would in a single-agency relationship. Illinois license law requires that dual agency be disclosed to buyers and sellers on a specific form. It is best to have the form signed by both the buyer and the seller before showing the property. The form should never be presented later than when a brokerage agreement is entered into, and it may be signed by the client at that time or at any time before the licensee acts as a dual agent.
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CHAPTER 2 Creating the Transaction STUDY QUESTIONS Answer the following questions “true” or “false”: 1. Open listings are legal in Illinois. 2. Net listings are legal in Illinois. 3. Multiple Listing Services can always specify the type of listings their member brokers must use. 4. Real estate licensees are exempt from the “Do Not Call” rules. 5. Written listing agreements must either contain one specific and automatic ending date or give the client the right to terminate the agreement with 30 days’ notice. 6. “Exclusive right to sell” listings are most preferred by brokers because sellers must pay the commission even if they sell the property themselves. 7. Since listing agents represent the seller, they do not need to make any disclosures to the seller. 8. A listing agreement is an employment agreement. 9. Some listings that are not in writing are legal in Illinois. 10. Senders of commercial email must give consumers a way to avoid receiving future emails.
Answers to Study Questions appear on Page 74
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ETHICAL PRACTICE Ethics are a part of the rules that should govern the professional conduct of real estate licensees. Each real estate licensee is expected to practice in the most ethical way possible. Professional ethics is not a new idea. The first version of the National ® Association of REALTORS (NAR) Code of Ethics was adopted in 1913. The Code of Ethics sets rules or guidelines for members of the NAR to follow when dealing with the public and other members. Over the years, the Code of Ethics has been amended many times to keep it meaningful and current. The majority of licensees, both members and non-members of the NAR, use the Code of Ethics as a standard for ethical practice. As you read the Code of Ethics, you will recognize a number of the same issues being addressed in both the Code of Ethics and the Real Estate License Act of 2000. It is not by accident but by design that the Code of Ethics has had a great impact on real estate license law throughout the country and in Illinois. The Code of Ethics encourages ® ® REALTORS to assist regulatory agencies. REALTORS accomplish this goal by identifying and taking steps to eliminate practices that may damage the public or bring discredit to the profession. The basis for the Code of Ethics is the “Golden Rule,” doing unto others as you would have them do unto you. This is obviously a principle we should follow in all our affairs, both private and professional. The Code of Ethics gives guidance in three areas of practice: duties to clients and ® customers, duties to the public, and duties REALTORS have to one another. However, ® be aware that it is intended for REALTOR members throughout the country and is not intended to reflect current real estate laws in specific states, such as Illinois. Therefore, as you read these materials, you should pay special attention to instances in which Illinois license law differs from or adds substantially to the standards set forth by the Code of Ethics. When appropriate, we have included explanations of Illinois license law after each of the Code’s standards. ®
The NATIONAL ASSOCIATION OF REALTORS , Code of Ethics, quoted herein, is taken ® from NATIONAL ASSOCIATION OF REALTORS Form, effective January 1, 2013. Article 1 When representing a buyer, seller, landlord, tenant, or other client as an agent, ® REALTORS pledge themselves to protect and promote the interests of their ® client. This obligation to the client is primary, but it does not relieve REALTORS of their obligation to treat all parties honestly. When serving a buyer, seller, ® landlord, tenant or other party in a non-agency capacity, REALTORS remain obligated to treat all parties honestly. (Amended 1/01) Standard of Practice 1-1 ®
REALTORS , when acting as principals in a real estate transaction, remain obligated by the duties imposed by the Code of Ethics. (Amended 1/93) Illinois licenses must disclose their status as licensees whenever they are a principal in a transaction. This is meant to alert the public of a licensee’s special knowledge and training. © Real Estate Institute
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Standard of Practice 1-2 The duties imposed by the Code of Ethics encompass all real estate-related activities and transactions whether conducted in person, electronically, or through any other mean ®
The duties the Code of Ethics imposes are applicable whether REALTORS are acting as agents or in legally recognized non-agency capacities except that any duty imposed exclusively on agents by law or regulation shall not be imposed by ® this Code of Ethics on REALTORS acting in non-agency capacities. As used in this Code of Ethics, “client” means the person(s) or entity(ies) with ® ® whom a REALTOR or a REALTOR ’S firm has an agency or legally recognized non-agency relationship; “customer” means a party to a real estate transaction who receives information, services, or benefits but has no contractual ® ® relationship with the REALTOR or the REALTOR ’S firm; “prospect” means a purchaser, seller, tenant, or landlord who is not subject to a representation ® ® relationship with the REALTOR or REALTOR ’S firm; “agent” means a real estate licensee (including brokers and sales associates) acting in an agency relationship as defined by state law or regulation; and “broker” means a real estate licensee (including brokers and sales associates) acting as an agent or in a legally recognized non-agency capacity. (Adopted 1/95, Amended 1/07) License law in Illinois gives us the definitions to be used to describe our agency and nonagency relationships based on the concept of designated agency. Since we judge agency relationships based on the individual licensee rather than the firm or managing broker, the definitions of “client” and “customer” as used in the Code of Ethics are different from those used in the Real Estate License Act. It should also be noted that where the Code of Ethics addresses sub-agency, these references do not apply in Illinois. Illinois does not allow the offer of sub-agency through a Multiple or Cooperative Listing Service. Standard of Practice 1-3 ®
REALTORS , in attempting to secure a listing, shall not deliberately mislead the owner as to market value. Standard of Practice 1-4 ®
REALTORS , when seeking to become a buyer/tenant representative, shall not mislead buyers or tenants as to savings or other benefits that might be realized ® through use of the REALTOR’S services. (Amended 1/93) The Real Estate License Act places these same obligations on licensees in Illinois by requiring licensees to place the interests of clients above their own and treat all customers honestly. Standard of Practice 1-5 ®
REALTORS may represent the seller/landlord and buyer/tenant in the same transaction only after full disclosure to and with informed consent of both parties. (Adopted 1/93) In this instance, Illinois license law and the Code of Ethics both take the same position. However, license law goes further to prescribe the specific requirements for disclosure of dual agency.
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Standard of Practice 1-6 ®
REALTORS shall submit offers and counter-offers objectively and as quickly as possible. (Adopted 1/93, Amended 1/95) Illinois license law states this same rule when it calls for timely presentation of offers. Standard of Practice 1-7 ®
When acting as listing brokers, REALTORS shall continue to submit to the seller/landlord all offers and counter-offers until closing or execution of a lease ® unless the seller/landlord has waived this obligation in writing. REALTORS shall not be obligated to continue to market the property after an offer has been ® shall recommend that accepted by the seller/landlord. REALTORS sellers/landlords obtain the advice of legal counsel prior to acceptance of a subsequent offer except where the acceptance is contingent on the termination of the pre-existing purchase contract or lease. (Amended 1/93) Standard of Practice 1-8 ®
REALTORS acting as agents or brokers of buyers/tenants shall submit to buyers/tenants all offers and counter-offers until acceptance but have no obligation to continue to show properties to their clients after an offer has been ® accepted unless otherwise agreed in writing. REALTORS acting as agents or brokers of buyers/tenants shall recommend that buyers/tenants obtain the advice of legal counsel if there is a question as to whether a pre-existing contract has been terminated. (Adopted 1/93, Amended 1/99) Both of these standards are in keeping with the basic concept of the agency relationship; the agent is to give advice, but decisions are to be made by the client. Standard of Practice 1-9 ®
The obligation of REALTORS to preserve confidential information (as defined by state law) provided by their clients in the course of any agency relationship or non-agency relationship recognized by law continues after termination of agency relationships or any non-agency relationships recognized by law. ®
REALTORS shall not knowingly, during or following the termination of professional relationships with their clients: 1)
reveal confidential information of clients; or
2)
use confidential information of clients to the disadvantage of clients; or
3)
use confidential information of clients for the REALTOR ’S advantage or the advantage of third parties unless: a) clients consent after full disclosure; or ® b) REALTORS are required by court order; or c) it is the intention of a client to commit a crime and the information is necessary to prevent the crime; or ® ® d) it is necessary to defend a REALTOR or the REALTOR’S employees or associates against an accusation of wrongful conduct.
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Information concerning latent material defects is not considered confidential information under this Code of Ethics. (Adopted 1/93, Amended 1/01) Confidentiality is one of the central issues that led to the changes in our industry’s approach to agency relationships and the creation of the form of designated agency practiced in Illinois. Each licensee must be aware of the specific definition of “confidential information” as set forth in the Real Estate License Act and keep such information private. © Real Estate Institute
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Standard of Practice 1-10 ®
REALTORS shall, consistent with the terms and conditions of their real estate licensure and their property management agreement, competently manage the property of clients with due regard for the rights, safety and health of tenants and others lawfully on the premises. (Adopted 1/95, Amended 1/00) Standard of Practice 1-11 ®
REALTORS who are employed to maintain or manage a client’s property shall exercise due diligence and make reasonable efforts to protect it against reasonably foreseeable contingencies and losses. (Adopted 1/95) Property managers must balance the goal of high returns for the owner against proper treatment of tenants. Standard of Practice 1-12 ®
When entering into listing contracts, REALTORS must advise sellers/landlords of: ®
1)
the REALTOR ’S company policies regarding cooperation and the amount(s) of any compensation that will be offered to subagents, buyer/tenant agents, and/or brokers acting in legally recognized non-agency capacities;
2)
the fact that buyer/tenant agents or brokers, even if compensated by listing brokers, or by sellers/landlords may represent the interests of buyers/tenants; and
3)
any potential for listing brokers to act as disclosed dual agents, e.g. buyer/tenant agents. (Adopted 1/93, Renumbered 1/98, Amended 1/03)
Standard of Practice 1-13 ®
When entering into buyer/tenant agreements, REALTORS must advise potential clients of: ®
1)
the REALTOR’S company policies regarding cooperation;
2)
the amount of compensation to be paid by the client;
3)
the potential for additional or offsetting compensation from other brokers, from the seller or landlord, or from other parties;
4)
any potential for the buyer/tenant representative to act as a disclosed dual agent, e.g. listing broker, subagent, landlord’s agent, etc., and
5)
the possibility that sellers or sellers’ representatives may not treat the existence, terms, or conditions of offers as confidential unless confidentiality is required by law, regulation, or by any confidentiality agreement between the parties. (Adopted 1/93, Renumbered 1/98, Amended 1/06)
License law coincides with Standards 1-12 and 1-13. When meeting with a potential client, we must explain how we practice designated agency, including whether we practice dual agency, where our compensation will come from, who we will share it with, and if we share on a different basis with some managing brokers than others. We are also required to inform clients of the names of their designated agents in writing.
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®
Standard 1-13-5 requires REALTORS to warn buyers and tenants that owners and owners’ agents may share information with other individuals about the terms of offers the buyer or tenant makes to them. Illinois law does not require licensees to warn their buyer and tenant clients in this way; however, it does seem appropriate that clients be made aware of this possibility. Standard of Practice 1-14 Fees for preparing appraisals or other valuations shall not be contingent upon the amount of the appraisal or valuation. (Adopted 1/02) Standard of Practice 1-15 ®
REALTORS , in response to inquiries from buyers or cooperating brokers shall, with the sellers’ approval, disclose the existence of offers on the property. Where ® disclosure is authorized, REALTORS shall also disclose, if asked, whether offers were obtained by the listing licensee, another licensee in the listing firm, or by a cooperating broker. (Adopted 1/03, Amended 1/09) Illinois law is consistent with the idea that the decision as to whether to provide information about the existence of other offers should be made by the seller. A licensee representing a buyer or seller has a duty to keep confidential any information that can affect the client’s position in the transaction or harm the client in any way unless the client authorizes the disclosure of such information. Standard of Practice 1-16 ®
REALTORS shall not access or use, or permit or enable others to use, listed or managed property on terms or conditions other than those authorized by the owner or seller. (Adopted 1/12) Standard of Practice 1-16 is clearly consistent with Illinois license law, calling for designated agents to follow the lawful instructions of their client. Article 2 ®
REALTORS shall avoid exaggeration, misrepresentation, or concealment of ® pertinent facts relating to the property or the transaction. REALTORS shall not, however, be obligated to discover latent defects in the property, to advise on matters outside the scope of their real estate license, or to disclose facts which are confidential under the scope of agency or non-agency relationships as defined by state law. (Amended 1/00) Standard of Practice 2-1 ®
REALTORS shall only be obligated to discover and disclose adverse factors reasonably apparent to someone with expertise in those areas required by their ® real estate licensing authority. Article 2 does not impose upon the REALTOR the obligation of expertise in other professional or technical disciplines. (Amended 1/96) Standard of Practice 2-2 (Renumbered as Standard of Practice 1-12 1/98) Standard of Practice 2-3 (Renumbered as Standard of Practice 1-13 1/98) Standard of Practice 2-4 ®
REALTORS shall not be parties to the naming of a false consideration in any document, unless it be the naming of an obviously nominal consideration. © Real Estate Institute
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Standard of Practice 2-5 Factors defined as “non-material” by law or regulation or which are expressly referenced in law or regulation as not being subject to disclosure are considered not “pertinent” for purposes of Article 2. (Adopted 1/93) Article 2 simply reminds us of the importance of honesty and full disclosure. Article 3 ®
REALTORS shall cooperate with other brokers except when cooperation is not in the client’s best interest. The obligation to cooperate does not include the obligation to share commissions, fees, or to otherwise compensate another broker. (Amended 1/95) Standard of Practice 3-1 ®
REALTORS , acting as exclusive agents or brokers of sellers/landlords, establish the terms and conditions of offers to cooperate. Unless expressly indicated in offers to cooperate, cooperating brokers may not assume that the offer of cooperation includes an offer of compensation. Terms of compensation, if any, shall be ascertained by cooperating brokers before beginning efforts to accept the offer of cooperation. (Amended 1/99) Standard of Practice 3-2 To be effective, any change in compensation offered for cooperative services ® ® must be communicated to the other REALTOR prior to the time that REALTOR submits an offer to purchase/lease the property. (Amended 1/10) Standard of Practice 3-3 Standard of Practice 3-2 does not preclude the listing broker and cooperating broker from entering into an agreement to change cooperative compensation. (Adopted 1/94) Standard of Practice 3-4 ®
REALTORS , acting as listing brokers, have an affirmative obligation to disclose the existence of dual or variable rate commission arrangements (i.e., listings where one amount of commission is payable if the listing broker’s firm is the procuring cause of sale/lease and a different amount of commission is payable if the sale/lease results through the efforts of the seller/ landlord or a cooperating broker). The listing broker shall, as soon as practical, disclose the existence of such arrangements to potential cooperating brokers and shall, in response to inquiries from cooperating brokers, disclose the differential that would result in a cooperative transaction or in a sale/lease that results through the efforts of the seller/landlord. If the cooperating broker is a buyer/tenant representative, the buyer/tenant representative must disclose such information to their client before the client makes an offer to purchase or lease. (Amended 1/02) Illinois law requires licensees to disclose to clients how they will be compensated, and with whom and how they will share their compensation. Standard of Practice 3-5 It is the obligation of subagents to promptly disclose all pertinent facts to the principal’s agent prior to as well as after a purchase or lease agreement is executed. (Amended 1/93) © Real Estate Institute
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Standard of Practice 3-6 ®
REALTORS shall disclose the existence of accepted offers, including offers with unresolved contingencies, to any broker seeking cooperation. (Adopted 5/86, Amended 1/04) Standard of Practice 3-7 ®
When seeking information from another REALTOR concerning property under a ® ® management or listing agreement, REALTORS shall disclose their REALTOR status and whether their interest is personal or on behalf of a client and, if on behalf of a client, their relationship with the client. (Amended 1/11) Standard of Practice 3-8 ®
REALTORS shall not misrepresent the availability of access to show or inspect a listed property. (Amended 11/87) Standard of Practice 3-9 ®
REALTORS shall not provide access to listed property on terms other than those established by the owner or the listing broker. (Adopted 1/10) Standard of Practice 3-10 The duty to cooperate established in Article 3 relates to the obligation to share information on listed property, and to make property available to other brokers for showing to prospective purchasers/tenants when it is in the best interests of sellers/landlords. (Adopted 1/11) Illinois license law requires a licensee to represent the client in a way that will accomplish the purpose of the listing agreement. The Standards of Practice set forth in this article clearly further that goal by calling for the listing broker to cooperate with other licensees to bring about a sale of the listed property. Article 4 ®
REALTORS shall not acquire an interest in or buy or present offers from themselves, any member of their immediate families, their firms or any member thereof, or any entities in which they have any ownership interest, any real property without making their true position known to the owner or the owner’s agent or broker. In selling property they own, or in which they have any interest, ® REALTORS shall reveal their ownership or interest in writing to the purchaser or the purchaser’s representative. (Amended 1/00) Standard of Practice 4-1 For the protection of all parties, the disclosures required by Article 4 shall be in ® writing and provided by REALTORS prior to the signing of any contract. (Adopted 2/86) Illinois law addresses the issue of a licensee disclosing that he or she is involved as a principal in a transaction; however, since Illinois law provides that licensees be representing any party they work with as a client, it is not necessary for a licensee to disclose specifically that a client is a family member.
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Article 5 ®
REALTORS shall not undertake to provide professional services concerning a property or its value where they have a present or contemplated interest unless such interest is specifically disclosed to all affected parties. Article 6 ®
REALTORS shall not accept any commission, rebate, or profit on expenditures made for their client, without the client’s knowledge and consent. When recommending real estate products or services (e.g., homeowner’s insurance, warranty programs, mortgage financing, title insurance, etc.), ® REALTORS shall disclose to the client or customer to whom the recommendation is made any financial benefits or fees, other than real estate ® ® referral fees, the REALTOR or REALTOR ’S firm may receive as a direct result of such recommendation. (Amended 1/99) Standard of Practice 6-1 ®
REALTORS shall not recommend or suggest to a client or a customer the use of services of another organization or business entity in which they have a direct interest without disclosing such interest at the time of the recommendation or suggestion. (Amended 5/88) Article 7 ®
In a transaction, REALTORS shall not accept compensation from more than one party, even if permitted by law, without disclosure to all parties and the ® informed consent of the REALTOR ’S client or clients. (Amended 1/93) Articles 4 through 7 clearly require licensees to make clients aware of any possibility that the licensee may experience financial gain or loss, other than the disclosed compensation, because of the clients’ actions in a transaction. This same disclosure is required by Illinois law. Article 8 ®
REALTORS shall keep in a special account in an appropriate financial institution, separated from their own funds, monies coming into their possession in trust for other persons, such as escrows, trust funds, clients’ monies, and other like items. Illinois has very specific laws and rules regarding the handling of and accounting of funds that are held by licensees. Article 9 ®
REALTORS , for the protection of all parties, shall assure whenever possible that all agreements related to real estate transactions including, but not limited to, listing and representation agreements, purchase contracts, and leases are in writing in clear and understandable language expressing the specific terms, conditions, obligations and commitments of the parties. A copy of each agreement shall be furnished to each party to such agreements upon their signing or initialing. (Amended 1/04)
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Standard of Practice 9-1 ®
For the protection of all parties, REALTORS shall use reasonable care to ensure that documents pertaining to the purchase, sale, or lease of real estate are kept current through the use of written extensions or amendments. (Amended 1/93) Standard of Practice 9-2 When assisting or enabling a client or customer in establishing a contractual relationship (e.g., listing and representation agreements, purchase agreements, ® leases, etc.) electronically, REALTORS shall make reasonable efforts to explain the nature and disclose the specific terms of the contractual relationship being established prior to it being agreed to by a contracting party. (Adopted 1/07) Standard of Practice 9-2 is one of several additions and changes made to the Code in 2007 to provide new guidance that seemed necessary with the greater use of the Internet and other technology. Article 10 ®
REALTORS shall not deny equal professional services to any person for reasons of race, color, religion, sex, handicap, familial status, national origin or ® sexual orientation. REALTORS shall not be parties to any plan or agreement to discriminate against a person or persons on the basis of race, color, religion, sex, handicap, familial status, national origin or sexual orientation. (Amended 1/11) ®
REALTORS , in their real estate employment practices, shall not discriminate against any person or persons on the basis of race, color, religion, sex, handicap, familial status, national origin or sexual orientation. (Amended 1/11) Standard of Practice 10-1 ®
When involved in the sale or lease of a residence, REALTORS shall not volunteer information regarding the racial, religious or ethnic composition of any neighborhood nor shall they engage in any activity which may result in panic ® selling, however, REALTORS may provide other demographic information. (Adopted 1/94, Amended 1/06) Standard of Practice 10-2 ®
When not involved in the sale or lease of a residence, Realtors may provide demographic information related to a property, transaction or professional assignment to a party if such demographic information is (a) deemed by the ® Realtor to be needed to assist with or complete, in a manner consistent with Article 10, a real estate transaction or professional assignment and (b) is obtained or derived from a recognized, reliable, independent, and impartial source. The source of such information and any additions, deletions, modifications, interpretations, or other changes shall be disclosed in reasonable detail. (Adopted 1/05, Renumbered 1/06) Standard of Practice 10-3 ®
Realtors shall not print, display or circulate any statement or advertisement with respect to selling or renting of a property that indicates any preference, limitations or discrimination based on race, color, religion, sex, handicap, familial status, national origin or sexual orientation. (Adopted 1/94, Renumbered 1/05 and 1/06, Amended 1/11) © Real Estate Institute
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Standard of Practice 10-4 As used in Article 10 “real estate employment practices” relates to employees and independent contractors providing real estate-related services and the administrative and clerical staff directly supporting those individuals. (Adopted 1/00, Renumbered 1/05 and 1/06) Standards prohibiting discrimination on the basis of sexual orientation were added in 2011. Sexual orientation is also a protected class under the Illinois Human Rights Act. Article 11 ®
The services which REALTORS provide to their clients and customers shall conform to the standards of practice and competence which are reasonably expected in the specific real estate disciplines in which they engage; specifically, residential real estate brokerage, real property management, commercial and industrial real estate brokerage, land brokerage, real estate appraisal, real estate counseling, real estate syndication, real estate auction, and international real estate. ®
REALTORS shall not undertake to provide specialized professional services concerning a type of property or service that is outside their field of competence unless they engage the assistance of one who is competent on such types of property or service, or unless the facts are fully disclosed to the client. Any persons engaged to provide such assistance shall be so identified to the client and their contribution to the assignment should be set forth. (Amended 1/10) Standard of Practice 11-1 ®
When REALTORS prepare opinions of real property value or price, other than in pursuit of a listing or to assist a potential purchaser in formulating a purchase offer, such opinions shall include the following, unless the party requesting the opinion requires a specific type of report or different data set: 1) 2) 3) 4) 5) 6) 7)
identification of the subject property date prepared defined value or price limiting conditions, including statements of purpose(s) and intended user(s) any present or contemplated interest, including the possibility of representing the seller/landlord or buyers/tenants basis for the opinion, including applicable market data if the opinion is not an appraisal, a statement to that effect. (Amended 1/10)
Standard of Practice 11-2 The obligations of the Code of Ethics in respect of real estate disciplines other than appraisal shall be interpreted and applied in accordance with the standards of competence and practice which clients and the public reasonably require to protect their rights and interests considering the complexity of the transaction, the ® availability of expert assistance, and, where the REALTOR is an agent or subagent, the obligations of a fiduciary. (Adopted 1/95)
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Standard of Practice 11-3 ®
When REALTORS provide consultive services to clients which involve advice or counsel for a fee (not a commission), such advice shall be rendered in an objective manner and the fee shall not be contingent on the substance of the advice or counsel given. If brokerage or transaction services are to be provided in addition to consultive services, a separate compensation may be paid with ® prior agreement between the client and REALTOR . (Adopted 1/96) Standard of Practice 11-4 The competency required by Article 11 relates to services contracted for between ® REALTORS and their clients or customers; the duties expressly imposed by the Code of Ethics; and the duties imposed by law or regulation. (Adopted 1/02) Article 12 ®
REALTORS shall be honest and truthful in their real estate communications and shall present a true picture in their advertising, marketing, and other ® representations. REALTORS shall ensure that their status as real estate professionals is readily apparent in their advertising, marketing, and other representations, and that the recipients of all real estate communications are, or have been, notified that those communications are from a real estate professional. (Amended 1/08) Standard of Practice 12-1 ®
REALTORS may use the term “free” and similar terms in their advertising and in other representations provided that all terms governing availability of the offered product or service are clearly disclosed at the same time. (Amended 1/97) Standard of Practice 12-2 ®
REALTORS may represent their services as “free” or without cost even if they expect to receive compensation from a source other than their client provided ® that the potential for the REALTOR to obtain a benefit from a third party is clearly disclosed at the same time. (Amended 1/97) Standard of Practice 12-3 The offering of premiums, prizes, merchandise discounts or other inducements to list, sell, purchase, or lease is not, in itself, unethical even if receipt of the benefit ® is contingent on listing, selling, purchasing, or leasing through the REALTOR ® making the offer. However, REALTORS must exercise care and candor in any such advertising or other public or private representations so that any party ® interested in receiving or otherwise benefiting from the REALTOR ’S offer will have clear, thorough, advance understanding of all the terms and conditions of the offer. The offering of any inducements to do business is subject to the limitations and restrictions of state law and the ethical obligations established by any applicable Standard of practice. (Amended 1/95) Standard of Practice 12-4 ®
REALTORS shall not offer for sale/lease or advertise property without authority. ® When acting as listing brokers or as subagents, REALTORS shall not quote a price different from that agreed upon with the seller/landlord. (Amended 1/93)
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Standard of Practice 12-5 ®
REALTORS shall not advertise nor permit any person employed by or affiliated with them to advertise real estate services or listed property in any medium (e.g., electronically, print, radio, television, etc.) without disclosing the name of that ® REALTORS ’S firm in a reasonable and readily apparent manner. This Standard of Practice acknowledges that disclosing the name of the firm may not be practical in electronic displays of limited information (e.g., “thumbnails,” text messages, “tweets,” etc.). Such displays are exempt from the disclosure requirement in the Standard of Practice, but only when linked to a display that includes all required disclosures. (Adopted 11/86, Amended 1/11) Standard of Practice 12-5 was amended in 2011 to reflect the ways that advertising practices have adapted to advances in technology. Standard of Practice 12-6 ®
REALTORS , when advertising unlisted real property for sale/lease in which they have an ownership interest, shall disclose their status as both owners/landlords ® and as REALTORS or real estate licensees. (Amended 1/93) Standard of Practice 12-7 ®
Only REALTORS who participated in the transaction as the listing broker or cooperating broker (selling broker) may claim to have “sold” the property. Prior to closing, a cooperating broker may post a “sold” sign only with the consent of the listing broker. (Amended 1/96) Standard of Practice 12-8 The obligation to present a true picture in representations to the public includes ® information presented, provided, or displayed on REALTORS ’ websites. ® REALTORS shall use reasonable efforts to ensure that information on their websites is current. When it becomes apparent that information on a ® ® REALTOR ’S website is no longer current or accurate, REALTORS shall promptly take corrective action. (Adopted 1/07) Standard of Practice 12-9 ®
REALTOR firm websites shall disclose the firm’s name and state(s) of licensure in a reasonable and readily apparent manner. ®
Websites of REALTORS and non-member licensees affiliated with a ® ® REALTOR firm shall disclose the firm’s name and that REALTOR ’S or nonmember licensee’s state(s) of licensure in a reasonable and readily apparent manner. (Adopted 1/07) Standard of Practice 12-10 ®
REALTORS ’ obligation to present a true picture in their advertising and representations to the public includes internet content posted and the URLs and ® domain names they use, and prohibits REALTORS from: 1) engaging in deceptive or unauthorized framing of real estate brokerage websites; 2) manipulating (e.g., presenting content developed by others) listing content in any way that produces a deceptive or misleading result; or © Real Estate Institute
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3) deceptively using metatags, keywords or other devices/ methods to direct, drive, or divert Internet traffic, or presenting content developed by others without either attribution or written permission, or to otherwise mislead consumers. (Adopted 1/07, Amended 1/13) Standard of Practice 12-11 ®
REALTORS intending to share or sell consumer information gathered via the Internet shall disclose that possibility in a reasonable and readily apparent manner. (Adopted 1/07) Standard of Practice 12-12 ® REALTORS shall not: 1) use URLs or domain names that present less than a true picture, or 2) register URLs or domain names which, if used, would present less than a true picture. (Adopted 1/08) Standard of Practice 12-13 The obligation to present a true picture in advertising, marketing, and ® representations allows REALTORS to use and display only professional designations, certifications, and other credentials to which they are legitimately entitled. (Adopted 1/08) Standards of Practice 12-8 through 12-13 provide guidance regarding Internet-based advertising. Article 13 ®
REALTORS shall not engage in activities that constitute the unauthorized practice of law and shall recommend that legal counsel be obtained when the interest of any party to the transaction requires it. Article 14 If charged with unethical practice or asked to present evidence or to cooperate in any other way, in any professional standards proceeding or investigation, ® REALTORS shall place all pertinent facts before the proper tribunals of the Member Board or affiliated institute, society, or council in which membership is held and shall take no action to disrupt or obstruct such processes. (Amended 1/99) Standard of Practice 14-1 ®
REALTORS shall not be subject to disciplinary proceedings in more than one ® Board of REALTORS or affiliated institute, society or council in which they hold membership with respect to alleged violations of the Code of Ethics relating to the same transaction or event. (Amended 1/95) Standard of Practice 14-2 ®
REALTORS shall not make any unauthorized disclosure or dissemination of the allegations, findings, or decision developed in connection with an ethics hearing or appeal or in connection with an arbitration hearing or procedural review. (Amended 1/92)
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Standard of Practice 14-3 ®
REALTORS shall not obstruct the Board’s investigative or professional standards proceedings by instituting or threatening to institute actions for libel, slander or defamation against any party to a professional standards proceeding or their witnesses based on the filing of an arbitration request, an ethics complaint, or testimony given before any tribunal. (Adopted 11/87, Amended 1/99) Standard of Practice 14-4 ®
REALTORS shall not intentionally impede the Board’s investigative or disciplinary proceedings by filing multiple ethics complaints based on the same event or transaction. (Adopted 11/88) Article 14 sets forth the ethical standards for dealing with complaints of unethical practice ® that specifically apply to REALTORS . Article 15 ®
REALTORS shall not knowingly or recklessly make false or misleading statements about other real estate professionals, their businesses, or their business practices. (Amended 1/12) Standard of Practice 15-1 ®
REALTORS shall not knowingly or recklessly file false or unfounded ethics complaints. (Adopted 1/00) Standard of Practice 15-2 The obligation to refrain from making false or misleading statements about other real estate professionals, their businesses, and their business practices includes the duty to not knowingly or recklessly publish, repeat, retransmit, or republish false or misleading statements made by others. This duty applies whether false or misleading statements are repeated in person, in writing, by technological means (e.g., the Internet), or by any other means. (Adopted 1/07, Amended 1/12) Standard of Practice 15-3 The obligation to refrain from making false or misleading statements about other real estate professionals, their businesses, and their business practices includes the duty to publish a clarification about or to remove statements made by others ® ® on electronic media the REALTOR controls once the REALTOR knows the statement is false or misleading. (Adopted 1/12) Article 16 ®
REALTORS shall not engage in any practice or take any action inconsistent with exclusive representation or exclusive brokerage relationship agreements ® that other REALTORS have with clients. (Amended 1/04) Standard of Practice 16-1 Article 16 is not intended to prohibit aggressive or innovative business practices which are otherwise ethical and does not prohibit disagreements with other ® REALTORS involving commission, fees, compensation or other forms of payment or expenses. (Adopted 1/93, Amended 1/95)
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Standard of Practice 16-2 ®
Article 16 does not preclude REALTORS from making general announcements to prospects describing their services and the terms of their availability even though some recipients may have entered into agency agreements or other ® exclusive relationships with another REALTOR . A general telephone canvass, general mailing or distribution addressed to all prospects in a given geographical area or in a given profession, business, club, or organization, or other classification or group is deemed “general” for purposes of this standard. (Amended 1/04) Article 16 is intended to recognize as unethical two basic types of solicitations: First, telephone or personal solicitations of property owners who have been identified by a real estate sign, multiple listing compilation, or other information ® service as having exclusively listed their property with another REALTOR ; and Second, mail or other forms of written solicitations of prospects whose properties ® are exclusively listed with another REALTOR when such solicitations are not part of a general mailing but are directed specifically to property owners identified through compilations of current listings, “for sale” or “for rent” signs, or other sources of information required by Article 3 and Multiple Listing Service rules to ® be made available to other REALTORS under offers of subagency or cooperation. (Amended 1/04) Standard of Practice 16-3 ®
Article 16 does not preclude REALTORS from contacting the client of another broker for the purpose of offering to provide, or entering into a contract to provide, a different type of real estate service unrelated to the type of service currently being provided (e.g., property management as opposed to brokerage) or from offering the same type of service for property not subject to other brokers’ exclusive agreements. However, information received through a Multiple Listing Service or any other offer of cooperation may not be used to target clients of ® other REALTORS to whom such offers to provide services may be made. (Amended 1/04) Illinois law prohibits licensees from interfering in the relationship of another licensee and his or her client. Standard of Practice 16-4 ®
REALTORS shall not solicit a listing which is currently listed exclusively with ® another broker. However, if the listing broker, when asked by the REALTOR , refuses to disclose the expiration date and nature of such listing; i.e., an exclusive right to sell, an exclusive agency, open listing, or other form of ® contractual agreement between the listing broker and the client, the REALTOR may contact the owner to secure such information and may discuss the terms ® upon which the REALTOR might take a future listing or, alternatively, may take a listing to become effective upon expiration of any existing exclusive listing. (Amended 1/94) Illinois license law sets forth specific rules that must be followed regarding how a licensee must request the information about expiration dates before he or she may legally contact the seller of a property that is listed by another brokerage firm.
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Standard of Practice 16-5 ®
REALTORS shall not solicit buyer/tenant agreements from buyers/tenants who are subject to exclusive buyer/tenant agreements. However, if asked by a ® REALTOR , the broker refuses to disclose the expiration date of the exclusive ® buyer/tenant agreement, the REALTOR may contact the buyer/tenant to secure ® such information and may discuss the terms upon which the REALTOR might enter into a future buyer/tenant agreement or, alternatively, may enter into a buyer/tenant agreement to become effective upon the expiration of any existing exclusive buyer/tenant agreement. (Adopted 1/94, Amended 1/98) Although license law addresses exclusive listing agreements, it does not specifically address exclusive buyer/tenant agreements; however, with regard to this issue, it seems it would be prudent to follow the same rules in dealing with a buyer/tenant agreement as those that govern listing agreements. Standard of Practice 16-6 ®
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When REALTORS are contacted by the client of another REALTOR regarding the creation of an exclusive relationship to provide the same type of service, and ® REALTORS have not directly or indirectly initiated such discussions, they may discuss the terms upon which they might enter into a future agreement or, alternatively, may enter into an agreement which becomes effective upon expiration of any existing exclusive agreement. (Amended 1/98) Standard of Practice 16-7 The fact that a prospect has retained a REALTOR as an exclusive representative or exclusive broker in one or more past transactions does not preclude other ® REALTORS from seeking such prospect’s future business. (Amended 1/04) Standard of Practice 16-8 ®
The fact that an exclusive agreement has been entered into with a REALTOR ® shall not preclude or inhibit any other REALTOR from entering into a similar agreement after the expiration of the prior agreement. (Amended 1/98) Illinois law is consistent with standards 16-6, 16-7, and 16-8 with regard to the contact a licensee has with the client of another licensee. Standard of Practice 16-9 ®
REALTORS , prior to entering into a representation agreement, have an affirmative obligation to make reasonable efforts to determine whether the prospect is subject to a current, valid exclusive agreement to provide the same type of real estate service. (Amended 1/04) Standard of Practice 16-10 ®
REALTORS , acting as buyer or tenant representatives or brokers, shall disclose that relationship to the seller/landlord’s representative or broker at first contact and shall provide written confirmation of that disclosure to the seller/landlord’s representative or broker not later than execution of a purchase agreement or lease. (Amended 1/04) License law does not require these specific disclosures but does require licensees to be clear about who they do and do not represent in the transaction.
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Standard of Practice 16-11 ®
On unlisted property, REALTORS acting as buyer/tenant representatives or brokers shall disclose that relationship to the seller/landlord at first contact for that buyer/tenant and shall provide written confirmation of such disclosure to the seller/landlord not later than execution of any purchase or lease agreement. (Amended 1/04) ®
REALTORS shall make any request for anticipated compensation from the seller/landlord at first contact. (Amended 1/98) In this situation, license law would require that you enter into a written agreement describing your non-agency relationship or disclosure of dual agency. License law does not address the issue of requesting compensation. Standard of Practice 16-12 ®
REALTORS , acting as representatives or brokers of sellers/landlords or as subagents of listing brokers, shall disclose that relationship to buyers/tenants as soon as practicable and shall provide written confirmation of such disclosure to buyers/tenants not later than execution of any purchase or lease agreement. (Amended 1/04) License law requires disclosure of designated agency and an explanation of how you practice designated agency at a time prior to the client disclosing any confidential information. Standard of Practice 16-13 All dealings concerning property exclusively listed, or with buyer/tenants who are subject to an exclusive agreement shall be carried on with the client’s representative or broker, and not with the client, except with the consent of the client’s representative or broker or except where such dealings are initiated by the client. Before providing substantive services (such as writing a purchase offer or ® presenting a CMA) to prospects, REALTORS shall ask prospects whether they ® are a party to any exclusive representation agreement. REALTORS shall not knowingly provide substantive services concerning a prospective transaction to prospects who are parties to exclusive representation agreements, except with the consent of the prospects’ exclusive representatives or at the direction of prospects. (Adopted 1/93, Amended 1/04) License law prohibits a licensee from dealing directly with another licensee’s client beyond performing a ministerial act. Standard of Practice 16-14 ®
REALTORS are free to enter into contractual relationships or to negotiate with sellers/landlords, buyers/tenants or others who are not subject to an exclusive agreement but shall not knowingly obligate them to pay more than one commission except with their informed consent. (Amended 1/98) Standard of Practice 16-15 ® In cooperative transactions, REALTORS shall compensate cooperating ® REALTORS (principal brokers) and shall not compensate nor offer to compensate, directly or indirectly, any of the sales licensees employed by or © Real Estate Institute
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affiliated with other REALTORS consent of the cooperating broker.
without the prior express knowledge and
In Illinois, sponsoring brokers can only pay compensation directly to the licensees they sponsor and to other sponsoring brokers. Standard of Practice 16-16 ®
REALTORS , acting as subagents or buyer/tenant representatives or brokers, shall not use the terms of an offer to purchase/lease to attempt to modify the listing broker’s offer of compensation to subagents or buyer/tenant representatives or brokers nor make the submission of an executed offer to purchase/lease contingent on the listing broker’s agreement to modify the offer of compensation. (Amended 1/04) Under Illinois law, if a licensee were to delay or refuse to present an offer for a client because the licensee was not satisfied with the compensation being offered, it would be a violation of the licensee’s statutory duties to the client. Standard of Practice 16-17 ®
REALTORS , acting as subagents or as buyer/tenant representatives or brokers, shall not attempt to extend a listing broker’s offer of cooperation and/or compensation to other brokers without the consent of the listing broker. (Amended 1/04) Standard of Practice 16-18 ®
REALTORS shall not use information obtained from listing brokers through offers to cooperate made through multiple listing services or through other offers of cooperation to refer listing brokers’ clients to other brokers or to create buyer/tenant relationships with listing brokers’ clients, unless such use is authorized by listing brokers. (Amended 1/02) Standard of Practice 16-19 Signs giving notice of property for sale, rent, lease, or exchange shall not be placed on property without consent of the seller/landlord. (Amended 1/93) Illinois law sets forth its own rule regarding the prohibition of placing “for sale” or “for rent” signs without specific written permission. Standard of Practice 16-20 ®
REALTORS , prior to or after their relationship with their current firm is terminated, shall not induce clients of their current firm to cancel exclusive contractual agreements between the client and that firm. This does not preclude ® REALTORS (principals) from establishing agreements with their associated licensees governing assignability of exclusive agreements. (Adopted 1/98, Amended 1/10) Illinois leaves the content of employment and termination agreements to the discretion of the licensees involved, subject to a group of topics that must be included. Termination is one of the required topics, along with compensation, supervision and the duties of each party.
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Article 17 In the event of contractual disputes or specific non-contractual disputes as ® defined in Standard of Practice 17-4 between REALTORS (principals) ® associated with different firms, arising out of their relationship as REALTORS , ® the REALTORS shall mediate the dispute if the Board requires its members to mediate. If the dispute is not resolved through mediation, or if mediation is not ® required, REALTORS shall submit the dispute to arbitration in accordance with the policies of the Board rather than litigate the matter. ®
In the event clients of REALTORS wish to mediate or arbitrate contractual ® disputes arising out of real estate transactions, REALTORS shall mediate or arbitrate those disputes in accordance with the policies of the Board, provided the clients agree to be bound by any resulting agreement or award. The obligation to participate in mediation and arbitration contemplated by this ® Article includes the obligation of REALTORS (principals) to cause their firms to mediate and arbitrate and be bound by any resulting agreement or award. (Amended 1/12) Standard of Practice 17-1 ®
The filing of litigation and refusal to withdraw from it by REALTORS arbitrable matter constitutes a refusal to arbitrate. (Adopted 2/86)
in an
Standard of Practice 17-2 ®
Article 17 does not require REALTORS to mediate in those circumstances when all parties to the dispute advise the Board in writing that they choose not to mediate through the Board's facilities. The fact that all parties decline to ® participate in mediation does not relieve REALTORS of the duty to arbitrate. ®
Article 17 does not require REALTORS to arbitrate in those circumstances when all parties to the dispute advise the Board in writing that they choose not to arbitrate before the Board. (Amended 1/12) Standard of Practice 17-3 ®
REALTORS , when acting solely as principals in a real estate transaction, are ® not obligated to arbitrate disputes with other REALTORS absent a specific written agreement to the contrary. (Adopted 1/96) In 2012, Article 17 was updated to include references to mediation, which has become a popular means of settling disputes rather than arbitration. Standard of Practice 17-4 and 17-5 (NOT PRINTED HERE) Standards of Practice 17-4 and 17-5 include explanations of how certain specific non-contractual disputes are to be handled when brought to arbitration. When licensees make a firm commitment to ethical practice, they act correctly and stay away from risky situations. When sponsoring brokers apply ethical standards in their business activities, they protect themselves and the licensees they sponsor. By practicing ethical standards, a licensee can build good will and a solid reputation, which will assure the continued growth of his or her business over time.
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Enforcement The NAR has set a process in place to enforce the Code of Ethics and Standards of Practice. To file a complaint, you do not need to be a member of the NAR or even a licensee. Anyone is allowed to file a complaint alleging a violation of the Code of Ethics. When someone files a complaint, he or she must specify which article of the Code of Ethics has been violated. A Grievance Committee then reviews the complaint. The Grievance Committee decides whether or not the alleged wrongdoing would constitute a violation of the Code of Ethics. In cases where the Grievance Committee decides the accused may have committed an offense, the case is passed to either a Professional Standards Hearing Panel (if the case involves an ethics complaint) or an Arbitration Hearing Panel (if the complaint is of a nature that would otherwise be dealt with by filing a lawsuit). Arbitration hearings most often deal with commission disputes. If the Professional Standards Hearing Panel finds an individual guilty, he or she can be given one or more disciplinary sanctions. Possible sanctions include requiring additional education, the payment of fines, suspension or even termination of membership. The accused can appeal to the Board of Directors if he or she disagrees with the finding or the penalty. The Arbitration Hearing Panel will make a determination based on principles of ethics and law. Once the Arbitration Hearing Panel renders a decision, there is no right of appeal. If the individuals or firms involved in an arbitration hearing wish to, they can agree to mediation. Mediation is not binding. If the decision of the mediator does not satisfy either party, an arbitration hearing can still be requested. This process of handling complaints has worked well. It allows judgment by peers who understand the special nature of the real estate business and is cost-efficient when compared to the court system. Illinois law does not deal with the settling or arbitration of disagreements between brokers regarding commissions or any other private agreements. The Real Estate License Act of 2000 allows anyone, whether licensed or not, to file a complaint regarding a suspected violation and provides a hearing procedure for its enforcement.
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CHAPTER 3 Ethical Practice STUDY QUESTIONS Answer the following questions “true” or “false.” 1. Decisions of the Professional Standards Hearing Panel can be appealed. 2. Disclosure is a matter of personal discretion. 3. The requirements in the Code of Ethics are similar to Illinois license law in many ways. 4. Agents should give advice but leave decisions up to clients. 5. An agent representing a client in a transaction must disclose any interest the agent has in the subject property. 6. Directly soliciting a listing from a seller whose property is listed with ® another REALTOR is considered unethical. 7. Except for ministerial acts, dealing directly with another agent’s client is not acceptable. 8. Litigation is the only acceptable form of settling disputes among ® REALTORS . 9. A firm commitment to ethical practice helps licensees avoid some risks. 10. The process of handling complaints through arbitration allows for judgment by one’s peers who are familiar with the nature of real estate transactions.
Answers to Study Questions appear on Page 74
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MANAGING RISK RISK MANAGEMENT Among the catchy, trendy phrases used in business today, “risk management” is certainly near the top of the list. In order to be able to achieve effective risk reduction in a practical and professional way, one must first be able to comprehend the full meaning of the words and how they apply to the real estate brokerage business. In this section, we will look at some definitions and concepts of risk management and its direct application to the real estate brokerage industry. We will also discuss a seven-step program for effective risk reduction and review the benefits of retaining legal counsel.
Risk in the Real Estate Brokerage Industry In any given context, risk can take many forms and shapes. This is particularly true in the real estate industry. There are always the obvious risk of making mistakes, the risk of making the wrong statement and the risk of failing to provide important information. But risk can take many other forms as well. Even when licensees have acted correctly, they may still be at risk. When people involved in a real estate transaction are dissatisfied with the outcome of that transaction, they will look for the persons involved to somehow compensate them. A buyer or seller may claim to have been hurt by a licensee. That person will try to sue to prove that the damages suffered were a direct result of the licensee’s ill-advised actions. In real estate transactions, this risk is often directed at the licensees involved in the sale, simply because they are at the center of the transaction and constitute easy targets. An important legal concept to remember is that fault must be established. Without fault (also known as “liability”), there cannot be a case. Therefore, every lawsuit has two aspects: liability and damage. First, it must be shown that the other person was responsible for the problem. Once this responsibility has been established, damages can be awarded in favor of the injured party. When we speak of damages, we must clarify that there are two common types: compensatory and punitive damages. Compensatory damages will result from the court’s decision that the plaintiff lost an amount of money because of the party at fault and should be reimbursed for it. Compensatory damages will be awarded to repay or compensate for the monetary loss incurred. Punitive damages, as their name suggests, will serve to punish someone for an action and serve as a lesson. They are usually monetary awards and are separate from the compensatory damages. An effective risk management program will allow two possible outcomes to a lawsuit concerning damages. In one possible outcome, the licensee is able to avoid both kinds of damages because he or she acted correctly and can prove it. Alternatively, even if a licensee is at fault and liable for compensatory damages, punitive damages can be prevented by a good paper trail showing that the broker had done everything possible to correct the problem. So, at the very least, a good risk management plan will minimize the potential monetary losses. Another example of potential risk is when licensees are accused of aiding and abetting someone else’s illegal, discriminatory conduct. The plaintiff may claim that a licensee contributed in some way to the harm done, perhaps not openly, but possibly by aiding and abetting someone else to do so. It may be claimed that by remaining involved in the transaction, the licensee’s actions condoned the behavior of the party accused of discrimination. Even if they do not personally commit discrimination, licensees can be © Real Estate Institute
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found guilty by association if they participate in a transaction where discrimination is taking place. Likewise, sponsors or managing brokers can be held responsible for the errors, mistakes or other wrongful acts of the licensees they oversee.
Effective Risk Management Once the potential risks involved in the real estate brokerage profession are clearly understood, we can look at managing those risks in order to minimize them. To manage risk effectively, the first and seemingly obvious step is to do everything right. However, we can safely assume that is impossible. Even with the best intentions, mistakes will be made and things will go wrong. A good risk management program should start with identifying the areas of potential risk. In many situations, risk awareness will prevent problems from surfacing. Then, a plan must be formulated and followed to the letter. Finally, a qualified attorney should be consulted to make sure that nothing has been overlooked and that the program is legally sound. Another important concept of risk management is swift action. If someone is complaining or has a problem regarding a transaction, the critical reaction is to respond quickly and consult an attorney about collecting proof, writing the necessary letters, making phone calls, writing memos to the file, and making sure that everything is documented. This will serve to show that the problem was recognized and that something was done immediately to try to rectify the situation. When complaints are overlooked and the parties feel ignored, a negative environment is created that will usually result in greater, costlier problems later on. The actions necessary to manage risk effectively in the different areas of real estate brokerage are many, but the whole process can really be summarized by the following statement: Do it right, and be able to prove it!
A Seven-Step Risk Management Program In order to achieve an objective, one must have a plan. Although plans, especially in the business world, must remain flexible and adapt to changes, having one will certainly help establish which areas are more susceptible to risk and what needs to be done to manage these risks effectively. We have established a seven-step program to take a real estate brokerage company from a high-risk situation to a position of minimal risk. By adhering to these steps, the risk and potential liability will be greatly reduced and, in some cases, virtually eliminated. These steps can enable everyone in the firm to work more effectively and earn a living in an environment where risk is under control. Some of these steps require more explanation than others and will be discussed further throughout this course. However, it is essential to understand that they are all equally important. For the program to work, they must all be followed and integrated in an overall risk management program. Here is a summary of the seven steps to an effective risk management program: 1.
Limit Authority for Handling Problems Delegating authority is an important business management concept that applies to a risk reduction program as well. However, for this delegation of authority to work adequately, it must be limited in scope and directed to the persons who have the most expertise and experience to handle the various situations in a timely manner. This system will provide for orderly referral and resolution of problems through the office hierarchy.
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The final authority should rest with the sponsoring and managing brokers. They will make the ultimate decision on how to handle the problems and should therefore always be aware of what is going on at the various levels of authority in the office. 2.
Respond Quickly Problems must be handled thoroughly and quickly. When a problem manifests itself, time becomes the enemy. The quicker the problem is dealt with by someone who is qualified, the better the company will be. A problem must be handled immediately and professionally. If a licensee decides to “think about it tomorrow,” the opportunity to resolve the problem with little or no expense may have been missed. A swift, well-thought-out, thorough response by somebody who is competent and capable of dealing with the problem is essential. Avoiding delays is the key. The licensee should always immediately contact a specialist in the appropriate field and/or obtain legal advice from an attorney.
3.
Maintain a Good Paper Trail The paper trail that the brokerage company is leaving should be thoroughly examined. Every piece of correspondence should be part of the paper trail, including but not limited to the following items: x x x x x x x x
Multiple listing contract. Listing, commission and all other agreements. Office procedure manual. Written instructions or announcements to sponsored licensees. Written record of office meetings. Advertising records. Memos to the file. Copies of telephone messages received.
Each of these documents represents an opportunity for someone to attack and also an opportunity for defense against such an attack. This is undoubtedly an important step in this risk management program, since it constitutes proof for everything else. 4.
Transfer Risk to Experts A time-tested method of risk reduction is to find somebody else to assume the potential risk. This process, known as “risk transference” or “risk shifting,” is not always a complete shield for everyone involved. However, it should at least spread the risk over a number of people who will share the burden of paying a claim for which the licensee would otherwise be solely responsible. When possible, risks should be transferred to specialists in the real estate industry, such as structural experts and legal consultants. These human resources should be made available and easily accessible to everyone working in the office in order to encourage immediate problem resolutions.
5.
Purchase Errors and Omissions Insurance In today’s business environment, most licensees consider errors and
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omissions insurance to be an absolute necessity. However, errors and omissions insurance alone, without the six other elements of an effective risk reduction program, cannot do the job. Many problems that befall licensees are either excluded from such a policy or do not constitute “errors and omissions” and won’t be covered by a policy. Even those problems that are are covered by errors and omissions insurance might not be covered until the licensee has been served with judicial process. By that time, the licensee is already involved in a lawsuit that will prove costly in terms of both money (most errors and omissions policies have deductibles) and time. Litigation can only harm the licensee. Many hours of the licensee’s time, which could be more profitably spent on business matters, must be diverted to meeting with lawyers and judges and preparing for and attending trials. The more serious the litigation, the more deeply the lawsuit intrudes upon the licensee’s business. Litigation should be avoided wherever possible. However, no risk reduction program can guarantee that you will not be sued. Errors and omissions insurance is, therefore, an integral part of a good risk management program. 6.
Retain Legal Counsel One of the most invaluable sources of help to a managing broker is a qualified attorney. It is recommended that counsel be retained on an annual basis. The reason for this recommendation is that the managing broker should be encouraged rather than inhibited from consulting with an attorney whenever a possible problem arises. The sponsoring or managing broker is naturally reluctant to pick up the phone and call a lawyer when he or she expects a bill to follow the phone call. When the lawyer is paid by an annual retainer, the licensee is willing to pick up the phone and ask questions, since the licensee has paid for the service and wants to get his or her money’s worth.
7.
Include Risk Management in Your Continuing Education Programs Most managing brokers invest substantial time in educating licensees about sales techniques and motivation. Those managing brokers who also attempt to educate their sponsored licensees about the laws affecting the industry usually provide education that is more theoretical than practical. Education on the various legal aspects of real estate should be encouraged for all licensees on a continuous basis. It will keep licensees informed and will reduce the risk of mistakes caused by ignorance. All parties will benefit from it.
In summary, the seven steps are: 1) limit authority for handling problems; 2) respond quickly; 3) maintain a good paper trail; 4) transfer risk to experts; 5) purchase errors and omissions insurance; 6) retain legal counsel; and 7) include risk management in your continuing education programs. This seven-step program is thorough and encompasses all aspects of the brokerage business, leaving little to chance. Adherence to this plan can be effective in greatly reducing risk.
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RISK SHIFTING In wanting to help accomplish the object of their employment and generate a sale, licensees may feel that a casual remark about a certain feature of the property is appropriate. Even with the best intentions, if this remark is directed at an area outside of the licensee’s scope of expertise, it can result in unnecessary risk. Licensees should avoid making statements that imply that they possess knowledge or expertise that they do not in fact possess. Many lawsuits are initiated by individuals who claim to have been misled by the statements of licensees. In many cases, these statements are not expressed as expert opinions. Instead, they are casual remarks that are made to temporarily address a consumer’s concerns. By encouraging consumers to rely on the advice of experts, licensees become less likely to be accused of misrepresentation.
Second-Hand Information When a licensee is passing on information originating from the seller or from any other expert source, it should be made very clear that this information is not from the licensee and that the licensee is not acting in an expert capacity regarding a particular situation. The licensee should identify the source and state that the information has not been verified for its accuracy but is simply being passed along as a service. The buyer or seller should be invited to check this information independently.
Various Specialists Since the purchase or sale of real estate involves a number of complex issues, licensees should encourage all parties to the transaction to freely avail themselves of the services of experts. Such experts include attorneys; professional engineers for independent reports on the condition of the structure; home protection providers for repairs of mechanical defects in the home; termite inspectors; surveyors; title insurance companies; radon inspectors; mortgage brokers; architects; and so many others.
Attorneys The legal aspect of a real estate transaction is very delicate and can have many different repercussions. Unauthorized practice of law by a licensee can create serious problems. But even when abstaining from statements of a legal nature, a licensee still needs to transfer risk to attorneys in another context. For instance, if there is an offer document, it would be a mistake for the real estate licensee to encourage the buyer to refrain from having the document reviewed by an attorney. By encouraging the involvement of an attorney, risk is shifted from the licensee to the attorney.
Home Warranties One possible application of risk shifting is to provide buyers and sellers with the option to purchase a home warranty plan. The buyers’ potential costs to maintain covered items in working condition may be eased if something goes wrong. From the sellers’ point of view, by protecting the purchaser from the added expense of repairs, they may be eliminating future problems that may come from defects in the property once it has been sold. Finally, licensees may reduce their risk of lawsuits resulting from undisclosed defects of which they had no knowledge.
Proper Procedures for Risk Shifting Understanding the need to shift risk to the appropriate experts is half the battle. We will now look at the proper procedures for effective risk shifting, keeping in mind that doing it is recommended, but that it will not be enough for a defense against a lawsuit. A broker must be able to prove the absence of wrongdoing. © Real Estate Institute
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Let the Consumers Know It is necessary that consumers understand what they can expect from the licensee. This will not only shift the risk away from the licensee but also help consumers determine what information they can rely on. Even if no problem is apparent, consumers must be informed of potential risks so that they can make their own decisions as to having items checked by a professional. The consumer must be aware that it is not part of the licensee’s responsibility to check every item or answer every question. If the licensee has disclosed all the pertinent information, has proof that such disclosure was made, and has shifted the risk to other professionals in the real estate industry, then the consumer has full knowledge of what should be done and who should be held responsible. The licensee’s attitude should be one of skepticism regarding property condition. To be protected from claims of supplying false information, an Illinois licensee should have evidence of having received the information that he or she has passed along to purchasers.
A Minimum of Three Recommendations When a licensee recognizes that he or she has only a limited ability to provide information, the licensee should make other sources available to buyers and sellers alike. However, a licensee should be careful to always recommend a minimum of three experts in a given field. If only one expert is recommended, the licensee could be accused of pressuring consumers to work with one particular expert who is perceivably under the licensee’s control. Negligent referrals are a source of concern and can be avoided by always recommending more than three names or companies.
In Writing The best and most effective way to defend against a lawsuit is, without a doubt, to have documented proof. Written disclosures should be made to both parties as to the extent of the licensee’s liability and limit of expertise. There should be documented proof of disclosures and of the companies recommended for each particular problem. It is critical that licensees have proof that disclosure was made regarding a potential problem, that the risk was shifted to experts in the field, and that the licensee is not responsible for the experts’ advice or opinion on the matter. Otherwise the parties may claim that they were never told to seek an expert opinion and, because of the lack of documented proof, the court will hold the licensee liable.
PROVING IT So far, we have talked about everything licensees need to do in the course of their business to protect against accusations of wrongdoing and litigation. As we mentioned earlier, it is still possible for a licensee to have done everything right, to be innocent of any wrongdoing, and still be the victim of a lawsuit. We will now look at the importance of being able to prove that everything was done correctly and that all disclosures were made. Doing everything right is important, but being able to prove it is crucial. Licensees shouldn’t wait until a lawsuit is underway to start collecting the necessary proof of their actions. Collecting proof should be an ongoing process that must be implemented in the daily activities of licensees. Information must always be available and on hand so that a licensee can be prepared for any eventuality. In this section, we will discuss two ways of proving that the correct actions were taken or that attempts were made to correct the situation: a good paper trail and witnesses. © Real Estate Institute
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Paper Trail A good paper trail will help a defense and will thwart the attack of adversaries. Such a paper trail does not happen by accident or in the normal course of business. Such a paper trail only happens by careful planning and adherence to that plan. However, to be admissible evidence in court, it must be shown that this paper trail is part of all business activities of the office and was not used only in one particular case. Therefore, it is important to implement a program at all company levels.
Paper Trail and Office Policies The managing broker should review and evaluate office policies and procedures with regards to correspondence, forms, agreements and management records, and make any necessary revisions in order to make every document in the office part of a comprehensive risk reduction plan. An effective paper trail is possible only with an effectively trained staff. Therefore, management and sales staff must be instructed in the proper use and operation of each document. The paperwork in the office files can be the single most important tool in risk management. For example, telephone messages with carbon paper transferring to a message book or a computerized diary can be important to the file. Since these are most likely already being used in the ordinary everyday business, they simply should be incorporated in the files. The managing broker should incorporate all the procedures deemed necessary for an adequate paper trail into the office’s policy manual and make sure the manual is reviewed with all sales associates and support personnel.
Paper Trail and Listings Whenever sellers consent to something, they should be consenting with full information. This is the legal principle of “informed consent.” Written disclosure will prove that they were given all the information necessary to make this informed decision. The licensee has to show that the sellers were given all the options and that it was solely their decision to take a certain course of action. The documents that licensees will keep should pertain to all aspects of their relationships with sellers under a listing agreement. Comparable property documentation, for example, should be kept in the file, showing that the property was compared accurately and that the estimate of the property’s worth was only in conjunction with the seller’s best interest. Documentation should also be kept to show the seller all the efforts that have been expended to market the property. Records should be kept of all open houses held, all advertising done, all phone calls made to other brokers in the field, etc. The licensee should be able to show how many times people came to look at the property, why they were looking, and why they did not submit an offer. There may be certain characteristics of the property that are hindering the sales process, and the sellers should be made aware of these. All of this will help prove that the property is being marketed in a proper manner and that the sellers are well represented.
Paper Trail and Disclosures All disclosures, whether to buyers or sellers, should always be in writing. The document should show what the disclosure was about as well as its source, and the party to whom the disclosure was made should sign it. If and when there is a problem and a discussion as to whether the disclosure was made or not, there will be proof on hand to settle the matter quickly and efficiently. When the licensee suspects a problem is arising - such as a seller refusing to disclose a defect to a buyer - written notice should also be given to the sellers to prevent future © Real Estate Institute
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repercussions. Without the disclosure documents, a licensee would never be able to prove that an attempt on his/her part was made to correct the situation. There must be at least registered letters or certified mail, showing the seller was informed of the problem and advised to take care of it immediately.
Paper Trail and Fair Housing A thorough paper trail will be the best proof of correct action if there is ever a problem regarding compliance with fair housing laws. If a case is brought to court a year later for alleged violation of the laws, the complainants will have their own recollections of events, which will probably be clearer than those of a licensee who has handled hundreds of clients and customers in the past year. For this reason, a complete paper trail should be kept listing the names, addresses and telephone numbers of prospects along with their requirements for housing and their financial qualifications. Records should be kept of the properties shown to these prospects. Licensees are required to display the Equal Housing Opportunity poster in their offices and are encouraged to use its logo in their advertising. There should also be a statement of fair housing policy between the sponsoring broker and each sponsored licensee, acknowledging that the sponsor has this policy of complying with the fair housing laws and that each licensee is required to comply. If a sponsored licensee ever disobeys the law, the sponsoring broker will have proof that everything possible was done to stress compliance.
Paper Trail and Risk Shifting Risk shifting is a very important concept of risk management to minimize potential liability. This procedure should always be done in writing. The licensee should provide the names of the recommended professionals (at least three) in writing. The licensee also should get a statement from the buyer or seller stating that the buyer or seller (1) confirms receipt of this information; (2) understands that the licensee does not provide professional advice in this particular matter; and (3) understands that the services of an expert in the field were recommended to obtain that professional advice. There should also be a disclosure signed by the buyers acknowledging that licensees are not representing themselves as radon experts, surveyors, or any kind of professional other than real estate professionals. It should also state that if consumers want inspection or testing to be done, it should be done at their expense, with the professional of their choice, and that they are free to test any element of the house. Witnesses The only other way to prove a case without documents is by having credible witnesses. When licensees do not have the luxury of having documents signed by all the parties to the transaction, or are unable to produce a thorough paper trail with the necessary documents to substantiate their position, they may want to use the testimony of persons who witnessed their actions or heard their statements. Unfortunately, when the case comes to trial a year or two later, the witnesses’ memories will usually have faded. So, even when there are witnesses, a licensee should try to obtain statements in writing, signed by these witnesses, in order to preserve the information. There are two kinds of witnesses: interested witnesses and disinterested witnesses. Interested witnesses will have something to gain from the outcome of the lawsuit. Disinterested witnesses are simply relating what they saw or heard without any potential benefit to themselves. The licensees who are accused of wrongdoing, for example, are classified as interested witnesses because they stand to gain something when the case goes to court. In the eyes of the law, they are not as credible as somebody “off the street” who has nothing to gain © Real Estate Institute
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from the case and who will simply testify as to what they heard or saw. By keeping careful records and documents, and combining them with credible disinterested witnesses whenever possible, a licensee will create evidence that can be used to either prove a case in court or eliminate or avoid a lawsuit. BUILD A SUCCESSFUL TEAM For this whole process to work and be effective, complete cooperation between the sponsoring broker and the sponsored licensees is necessary. This cannot be the policy of just one associate in the office or only the managing broker. An entire team approach is required for the implementation of office rules and policies. We have discussed at length the fiduciary relationships with clients and customers, but there are also fiduciary duties within the context of the real estate company. Under a listing contract, a sponsoring broker has a fiduciary relationship with the seller. The sponsored licensees in the office have a fiduciary duty to the sponsoring broker. Cooperation is essential. Without it, confusion will result and the potential for errors increases. In this section, we will see that in order to manage risk effectively, the risk management plan must be an all-around program covering everyone’s activities.
Policies and Procedures Manual Regardless of the number of licensees in the office, it is good business management in the real estate industry to have a policies and procedures manual. Many managing brokers believe that since they only have two or three agents, they do not need this manual. Their small-office atmosphere is relaxed and informal, and control of the agents’ conduct is a lot easier than in a larger real estate company. But risk management is good business management for everyone, and having a procedure manual is an integral part of a good risk-reduction program. This policies and procedures manual will govern the way that licensees will conduct business within the company structure. It should be reviewed with the assistance of an attorney to make sure that if this manual is ever used as evidence in court or any kind of proceeding, it will contain the necessary information to show compliance with the law. It should also help to show that every effort was made to educate licensees about the correct policies and procedures to be followed. Inform the Managing Broker Immediately We all know that a licensee’s job is to sell and list real estate. Licensees are not expected to be experts about everything affecting the real estate industry (or the real estate brokerage industry, for that matter). For that reason, it is necessary for sponsored licensees to inform their sponsoring broker about everything concerning the business that may result in any type of problem. Everything should be reported, no matter how small or seemingly insignificant. Even if it is just a “funny feeling” that something is wrong, it should be reported so that the managing broker can address the problem while it is small. Managers should convey this message very clearly to their sales forces and make themselves accessible. Delegating and Limiting Authority It is important to establish well-defined limitations of authority for licensees, including the managing broker. It is rare that problems surface without any warning whatsoever. In most cases, the clear signs and signals of a potential problem are present long before the problem itself arises. In many instances, either the sales associate or a manager, neither of whom has received © Real Estate Institute
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sufficient training to recognize its existence, overlooks the problem. In some cases, the problem has been mishandled in an attempt to solve it without involving the proper authority figures or legal counsel. People should not be authorized to deal with problems that they are not qualified to handle. In order to properly delegate authority, the managing broker should first categorize the different types of problems that can be anticipated in the conduct of a real estate business. Since some of these problems will manifest themselves in various ways, they should be broken down into categories and even sub-categories. Once the managing broker is comfortable that this is a list of virtually every type of problem that can be expected to occur in the office, the list of potential problems should be reviewed with an attorney, who may help identify dangers that were overlooked. Once this list is complete, a decision must be made as to who will be assigned to handle each type of problem. There should be a clear hierarchy with respect to which problems are to be handled by the various sponsored licensees or the managing broker, and which problems require immediate professional advice or attention. Since licensees do not all have equal experience and qualifications, each licensee should be assigned to a group that will be charged with responsibility for handling a particular type of problem based upon the general education and experience level of that group. Since sales associates usually get the first indication that a problem is brewing, they must determine whether or not a particular problem is of a nature that falls within the scope of their authority. If so, sponsored licensees should utilize their training to deal with the problem and prepare a short, written report of the problem and its resolution for the managing broker. It is important that the problem be discussed with the managing broker during the day in which it is first discovered, even if the written report cannot be delivered until the following day. Any problem that cannot be solved by a sponsored licensee should be referred to a manager, who might decide whether to handle the situation with or without professional advice. Continuing Education In order to have a good team, a managing broker must have competent, well-educated people in the field doing the job. There are two types of education that a managing broker must be concerned about. The first type of education is the one mandated by the state in order for the sponsoring broker and sponsored licensees to obtain licenses and to keep those licenses current. The managing broker should keep careful records of all the licensees having complied with their licensing requirements. There is nothing worse than having a licensee in the field who is not properly licensed. If a transaction is put together by such a person, a commission will not be owed. The other type of education is company-mandated. This type of education is what the sponsoring broker feels is necessary in order to have competent, well-educated licensees. While motivation and sales training can be part of this education, good risk management training should be incorporated with the motivation and sales techniques. Licensees who are motivated and well-trained will also be good risk managers. An Essential Member of the Team: The Attorney As we have discussed previously, licensees should have a working relationship with a qualified attorney who will help in the area of risk management. The attorney should be part of the team. It is important that the attorney be consulted as soon as a problem first arises in order to keep that problem small. The attorney is specialized in how to resolve problems when they first occur. The attorney will also help to prove the case if there is ever a lawsuit. © Real Estate Institute
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However, the attorney’s function is best served as a counselor when problems are first detected. When the attorney is involved early on and everything has been done correctly with the proper documentation to support it, a simple letter can be written to attempt to dispose of the case. The letter may serve to confirm that the other party’s claim should not be directed against the licensee. Risk management is everyone’s concern, from the experienced managing broker to the novice sponsored licensee. Implementation of the seven-step program through adherence to adequate risk shifting and a solid paper trail will lead to successful risk reduction. Involvement at all company levels will generate a team approach that helps everyone minimize liability.
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CHAPTER 4 Managing Risk STUDY QUESTIONS Answer the following questions “true” or “false”: 1. With proper record keeping, an attorney is unnecessary. 2. Each person should know the limits of their authority in handling problems. 3. It is best not to respond too quickly because many problems go away with time. 4. It is unethical to shift the risk to experts. 5. If a licensee makes a statement about construction, the buyer is likely to consider it an expert opinion. 6. It is safer never to put anything in writing if you don’t have to. 7. A witness is the next best thing to written evidence. 8. Fault must be determined before damages can be awarded. 9. A good risk management plan will minimize potential monetary losses if you are sued. 10. In suits related to real estate, punitive damages are always awarded.
Answers to Study Questions appear on Page 74
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ILLINOIS REAL ESTATE CONTINUING EDUCATION ANSWER KEY FOR STUDY QUESTIONS
CHAPTER 2
CHAPTER 1 Fair Housing, Agency, License Law and Escrow
Creating the Transaction
1. F 2. T 3. T 4. F 5. F 6. T 7. T 8. T 9. F 10. F
1. T 2. T 3. F 4. F 5. T 6. T 7. F 8. T 9. T 10. T
CHAPTER 3 Ethical Practice 1. 2. 3. 4. 5. 6. 7. 8. 9. 10.
CHAPTER 4 Managing Risk
T F T T T T T F T T
© Real Estate Institute
1. 2. 3. 4. 5. 6. 7. 8. 9. 10.
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F T F F T F T T T F
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