Advertising Town Hall Presentation

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Frequently Asked Questions

I have moved my sponsorship to a new broker, can my prior sponsoring broker pay me a commission directly for a transaction or referral?

Yes, Commission Rule 535.3 permits you to receive any compensation through your current sponsoring broker or the broker who sponsored you at the time you earned the right to the compensation.

What happens if a license holder is convicted of a crime?

If a license holder is convicted of a felony or a criminal offense involving fraud it is a violation of section 1101.652(a)(1) of the License Act. This section gives the Commission authority to suspend or revoke a license holder that has entered a plea of guilty or nolo contendere or has been convicted of a felony or any criminal offense that involves fraud (including misdemeanors). The Commission does not have the authority to revoke or suspend a license holder that has been only charged or accused of committing a felony or criminal offense that involves fraud. A license holder is required to notify the Commission not later than the 30th day after the final conviction or the entry of a plea of guilty or nolo contendere. Failing to timely notify may result in more severe or further disciplinary action. All license holders’ criminal backgrounds are rechecked upon renewal, however, this does not excuse a license holder from notifying the Commission not later than the 30^th day after the final conviction.

Are there any restrictions on the placement of a license holder's signs?

Yes. TREC may suspend or revoke a license if the license holder places a sign on a property offering it for lease or rental without the written permission of the owner or the owner's authorized agent. [TRELA §1101.652(b)(18)]. Also, although TREC does not regulate where a license holder places a sign, a license holder is responsible for compliance with any rules, restrictions, or regulations covering placement of a sign in their local area. Placement of signs in violation of city ordinance could be considered an act of negligence or incompetence that authorizes disciplinary action against the license holder as well as subject the license holder and possibly even their principal to enforcement actions by the appropriate authorities. [TRELA §1101.652(b)(1)] Typically, sign ordinances prohibit placing a sign on a utility pole, traffic signal box, or in a road median.

I am a Texas broker. Can I broker real estate located in another state?

We don't know, since you will be governed by the laws in that state. Please check with the licensing authority in the state where the brokerage activity will be performed.

I am a sales agent, Sally White. I am sponsored by a broker but want to use an assumed name for my advertisements. Can I use “Sally’s Spectacular Properties” or “White Real Estate” for my business name on my advertising?

You cannot use either company name because each implies that Sally, a sales agent, is in charge. An advertisement cannot in any way imply that a sales agent is the person responsible for the operation of a real estate brokerage. [TRELA §1101.652(b)(23) ]. A sales agent may use her name with the term “Team” or “Group,” so long as the advertisement also includes the broker’s name, and so long as the broker has registered the team or group name with the Commission.

I am a sales agent. Can TREC review my advertising and advise me whether my advertising complies with TREC Rules?

No. TREC does not review a sales agent’s advertising. TREC will only discuss advertising questions with a broker directly. Your sponsoring broker should review your advertising because your sponsoring broker is responsible for ensuring that your advertising complies with TREC’s advertising rules, and both you and your sponsoring broker can be disciplined if your advertising violates TREC rules. [See §§535.2(g), 535.154, and 535.155 (effective May 15, 2018); TRELA 1101.652(b)(23)]. Your broker must maintain, on a current basis, written policies and procedures to ensure that each sponsored sales agent complies with the Commission’s advertising rules. [See §535.2(i)(6)].

I signed a buyer representation agreement, but I want to work with a different Broker. Can I cancel the agreement?

A buyer representation agreement is intended to be a legal and binding contract. You can ask the broker to release you from the buyer representation agreement. However, TREC does not have the authority to require a broker to release you from the agreement. If the broker refuses to release you from your buyer representation agreement, you should seek the advice of a private attorney.

If I am buying, selling or leasing property for a relative, do I need to disclose that I have a real estate license?

Yes. If you are acting on your own behalf or on behalf of your spouse, parent or child, you must inform any person with whom you deal that you are a licensed broker or sales agent acting on that relative’s behalf. This notice must be in writing. A license holder shall not use the license holder’s expertise to the disadvantage of a person with whom the license holder deals. [Rule 535.144(c)]

If a buyer's agent is required to disclose his or her status as the buyer’s agent to a listing broker when setting up a showing appointment, must the listing broker also disclose to the buyer's agent that the listing broker represents the seller?

Yes, on the first contact with the license holder representing the buyer. [TRELA §1101.558(b)].

Is a broker required to have a trust or escrow account?

No, not unless the broker agrees to hold money belonging to others or to act as an escrow agent. [Rule 535.146(b)(1)]

Is the license holder required to provide the "written statement" (IABS Form) to buyer prospects at an open house?

No. A license holder is not required to provide the statutory written statement at the open house. [TRELA §1101.558(c)(3)].

I’m changing sponsoring brokers. Can I take the buyers I represent with me to the new broker if the buyers signed buyer representation agreements?

No. A buyer representation agreement is a private contract between the buyer and the real estate broker, not the sales agent. As such, the buyer would still be represented by the sales agent’s previous broker. The buyer may, however, seek to be released from the buyer representation agreement.

What are the steps to formation of an intermediary relationship?

Before a broker or sales agent sponsored by the broker can represent both the buyer and seller in a transaction, all of the following steps must occur:

both the buyer and seller are presented with the Information About Brokerage Services by their respective sales agent at the time of the first substantive communication;
the seller executes a Listing Agreement or other written document with the broker that authorizes the broker to act as intermediary and specifies in conspicuous bold or underlined print the conduct that is prohibited under TRELA §1101.651(d); and
the buyer executes a Buyer Representation Agreement or other written document that authorizes the broker to act as intermediary and specifies the conduct that is prohibited under TRELA §1101.651(d) in conspicuous bold or underlined print.

What is considered an advertisement?

Under Rules 535.154 and 535.155 (effective May 15, 2018), an advertisement is defined as “any form of communication by or on behalf of a license holder designed to attract the public to use real estate brokerage services and includes, but is not limited to, all publications, brochures, radio or television broadcasts, all electronic media including email, text messages, social media, the Internet, business stationery, business cards, displays, signs and billboards." An advertisement does not include a communication from a license holder to the license holder's current client.

Are signs permitted which display the word "broker" or "agent?"

Yes. Although this is not mandatory, it may still be placed on a sign.

Are the disclosure and statutory information requirements applicable to commercial transactions, new home sales, farm and ranch sales or transactions other than residential sales?

Unless an exception applies, the requirements apply to all proposed real estate transactions. The exceptions to the representation disclosure are in TRELA §1101.558(c).

Are there exceptions when the disclosure notice about agency relationships (IABS) is not required?

Yes. The Information About Brokerage Services (IABS) representations disclosure is not required when:
(1) a transaction is for a residential lease less than one year and a sale is not being considered;
(2) a meeting is with a party currently known to be represented by another license holder; or
(3) the communication is at an open house and the communication concerns that same property.
[TRELA §1101.558(c)]

In addition, the IABS is not generally required when the license holder is acting solely as a principal in the transaction.

Can I advertise a service provider such as an inspector, moving company, or repair contractor on my website?

Yes, but if you offer, recommend, or promote the use of a service provider and expect to receive compensation from the service provider when a party uses the service, the ad must disclose that you may receive the compensation. [Rule 535.155 (effective May 15, 2018)] You may advertise an inspector’s services, however, an inspector may not pay a fee or other valuable consideration for (1) a referral, (2) inclusion on a list of inspectors or preferred providers, or a similar arrangement; or (3) inclusion on a list of inspections contingent on other financial agreements. [Rule 535.220(e)(3)] Also, acceptance of a fee from a service provider may violate the Federal Real Estate Settlement Procedures Act (RESPA), which prohibits certain referral fees and kickbacks.

Can a broker be the designated broker for more than one business entity?

Yes.

Can a broker pay all or a portion of a commission or fee to an unlicensed person?

In general, no. However, a license holder may rebate all or a portion of the fee or commission to the party being represented in the transaction, or, with consent of the party being represented, the license holder can also pay all or a portion to a party the license holder does not represent in the transaction. [Rule 535.147(d)]

Can a broker use the words "team" or "group" in the broker's licensed name or assumed business name?

Yes. TREC Rules do not prohibit a broker from using the word “team” or “group” anywhere in a broker’s licensed or assumed business name.

Can a license holder who negotiates a transaction also be employed by a lender and direct a purchaser to that lender to get a loan?

Only with appropriate disclosure and consent. If the license holder is an agent of the buyer, the license holder owes a fiduciary duty to the buyer. The license holder can work for a lender without breaching that duty, but the license holder can't direct a purchaser to any one lender. The license holder should inform the purchaser that the license holder is employed by the lender and give the names of several institutions to the purchaser. The primary duty of the agent is to represent the interests of the agent’s client, not the agent's own interests. [Rule 531.1]

Can a listing broker share a portion of the listing broker’s commission with an attorney who represented the buyer in a real estate transaction?

No. A broker is prohibited from sharing fees with or otherwise compensating the attorney acting as a buyer’s agent unless the attorney holds an active real estate license.

Can a name used in advertising be both an assumed business name and a team name?

No. It will be one or the other. See question regarding the difference between the types of names to figure out which one is appropriate for your situation.

Can a sales agent be the owner of a property management company?

A: Yes. A sales agent may own the firm but the business must be conducted through the sales agent's sponsoring broker.

Can a sales agent have a commission check written to the sales agent’s own corporation or Limited Liability Company? If so, does that entity have to be licensed as a real estate broker?

All commissions must be paid through the agent’s sponsoring broker.[TRELA §1101.651(b)] Further, a business entity that receives compensation on behalf of a license holder must be licensed as a broker. [TRELA §1101.355(c)]

Can a sales agent have an escrow account?

No. Rule 535.146(b)(2) prohibits a sales agent from having an escrow account. The sales agent must turn all money received over to the sales agent's sponsoring broker.

Can a sales agent own his or her own real estate business entity?

Yes, a sales agent can own his or her own business entity. The entity must, if it engages in real estate brokerage, hold a separate license. The entity must have a designated broker through whom all transactions must be handled and who is responsible for the entity's (and any sponsored sales agent’s) actions. The specific details of the supervision that the sales agent’s sponsoring broker exercises over the sales agent’s actions should take into consideration the sales agent’s experience and ability, acknowledging the fact that the broker is responsible for the sales agent’s actions, and should be described in a written agreement between the sales agent and the sales agent’s sponsoring broker. The sales agent’s agreement should also address how compensation is handled with the broker. For additional information, read Rule 535.2 regarding broker responsibility. See also Rules 535.154 and 535.155 regarding advertising.

Can a sales agent receive or pay a commission to a party in a real estate transaction?

No. A sales agent may not accept compensation for a real estate transaction from anyone other than the broker the sales agent was associated with at the time the commission was earned and may not pay a commission to a person except through the sales agent’s sponsoring broker. [TRELA §1101.651(b) and (c)]

Can a sales agent work in a different office than the sponsoring broker’s office?

A sales agent may work from an office location different from the main office of the sales agent's sponsoring broker, but the sponsoring broker is still responsible for the sales agent's actions. [TRELA §1101.803, Rule 535.2(a)] Despite this flexibility, a sales agent may not lawfully engage in brokerage activity unless the sales agent is associated with, and acting for, the sponsoring broker at all times. [TRELA §1101.351(c)] Thus, a sales agent may not work for a broker who is not the sales agent’s sponsoring broker or work for another broker or out of another broker's office.

Can an associated broker refer to himself or herself as a "broker" in an advertisement?

No. This could “tend to mislead” the public that the associated broker is in charge of the brokerage operation. The public needs to know the broker with whom they will have a legal agreement (remember listing agreements, etc. are taken in the name of the broker, not the sales agent or the associated broker). The associated broker could use “associated broker”, “broker associate” or “associate broker”, since that distinguishes his or her role. [TRELA §1101.652(b)(23)]

Can an associated broker use his or her own assumed business name in advertising?

No. A name used in advertising by an associated broker that is not the associated broker’s licensed name must be registered as a team name by the broker he or she is associated with and meet all the requirements for a team name. [TRELA §1101.652(b)(23) and Rule 535.154(a)(5)]

Can an attorney get a broker license without first being licensed as a sales agent?

No. A licensed attorney will need to meet all the standard requirements, including education, examination and experience, for issuance of first a real estate sales agent license and then a broker license. However, many of the college and law school courses completed by the attorney could count toward the education requirements. Transcripts would need to be evaluated to determine whether the attorney may receive credit for any applicable courses.

Can an inactive license holder negotiate the purchase, sale, or lease of real property between third parties?

No. An active real estate license is required to negotiate a real estate transaction between third parties. Conducting
real estate brokerage activity with an inactive license is considered a violation subject to sanctions. [TRELA §1101.351(c)]

Can an individual broker use an assumed business name in advertising?

Yes, as long as the broker has the legal authority to use that name in the State of Texas and it is registered with TREC before it is used in advertisements. [Rule 535.154(d)]

Can an individual sales agent use an assumed business name in advertising?

No. Any name used by an individual sales agent, other than the name on the license or a registered alternate name, is considered a team name under TREC rules and must meet the team name requirements. [Rule 535.154(a)(5)]

Can an unlicensed person own a real estate company and receive all or a portion of a commission paid to a licensed broker?

Yes, within certain limitations. The unlicensed person may share in the income earned by a real estate brokerage if the person engages in no acts for which a license is required. [Rule 535.147(b)]

Can the intermediary delegate to another license holder the authority to appoint license holders associated with the broker intermediary?

The intermediary may delegate to another license holder the authority to appoint license holders. If the intermediary authorizes another license holder to appoint associated license holders to work with the respective principals, that license holder cannot designate himself/herself as one of the appointed license holders. This is an improper combination of the different functions of intermediary and appointed license holder. It is important to remember that there will always be a single intermediary broker even if another license holder has been authorized to make the specific appointments. The intermediary is prohibited from acting so as to favor one principal over the other, and may not reveal confidential information obtained from one principal without the written instructions of that principal, unless disclosure is required by TRELA, court order, or the information materially relates to the condition of the property. The intermediary and any associated license holders appointed by the intermediary broker are prohibited from disclosing, without the written authorization from the seller, that the seller will accept a price less than the asking price or that the buyer will pay a price greater than the price submitted in a written offer. [TRELA § 1101.558]

Can the team name used by an associated broker be the same as the assumed name used by the associated broker when he or she is not associating with another broker?

Yes, if the assumed business name of the associated broker meets the requirements for a team name since a team name must be used when the associated broker is associating with another broker. Keep in mind that the associated broker registers the assumed business name that is used when they are not associating with another broker and the broker that they are associating with registers the team name being used when associating with that broker. [Rule 535.154(a)(5)]

Note on Exclusive Name Use: TREC does not, and is not, required to vet names submitted for registration as an assumed name or team name for exclusivity. A brokerage should decide whether it makes good sense from a liability exposure standpoint to allow an associated broker (or a sales agent who owns a business entity) to use the same name for a team name under the brokerage that they have registered as an assumed name under their own licensed business entity.

Do partnerships need to be licensed if real estate brokerage activity is performed under the partnership name?

Yes. All business entities engaged in real estate brokerage activity, including partnerships, need to be licensed. [TRELA §1101.002] Further to receive or maintain a license, a business entity must designate an individual holding an active Texas real estate broker license, in good standing, who is an officer, manager, or general partner of the entity to act for it. [TRELA §1101.355 and Rules 535.50(5) and 535.53]

Does TREC consider a license holder’s URL or domain name or email address to be advertising?

TREC does not consider URLs or email addresses to be advertisements in and of themselves. However, an advertisement that contains a URL or email address of a sales agent that includes a title that implies responsibility for a brokerage violates TREC Rule 535.155(d)(4). Further, TREC will consider all advertisements in their entirety and if an email address or URL] makes the advertisement misleading or deceptive, it violates the law. [Rule 535.155(b)(4) and TRELA §1101.652(b)(23)]

Does TREC consider a logo that contains the broker’s full name sufficient for the broker name requirement?

Yes, as long as the size of the broker’s name itself (not the whole logo) is at least ½ the size of the largest contact information. [Rule 535.155(b)(3)]

Does TREC consider a sign on a building to be an advertisement?

Yes. If a sales agent’s name or team name is on a building sign, the broker’s name must also be present (in at least half the size). A broker’s name alone is okay. [Rule 535.155(b)(1)]

Does TREC consider promotional items and sponsorships to be advertising?

Yes. If a sales agent’s name or team name is on them, the broker’s name must also be present (in at least half the size). A broker’s name alone is okay. [Rule 535.155(b)(1)]

Does a broker have to supervise the daily activities of a sales agent?

A broker is not required to directly supervise sponsored sales agents; this responsibility may be delegated to another person with the required level of experience and expertise to provide proper supervision under the law. [Rule 535.2(e)] However, the broker remains responsible for the authorized acts of the broker’s sales agents [TRELA §1101.803, Rule 535.2(a) ] and has many affirmative duties regarding written policies, record keeping and advising, training, approving advertising for and responding to sales agents. Brokers should be familiar with and follow the duties set out in Rule 535.2 . A broker should also be aware that a complaint filed against a sponsored sales agent is also a complaint against the broker for the purpose of determining the broker’s involvement in the alleged violation and whether the broker properly supervised the sales agent. [Rule 535.141(c) and (d)] A business entity can only provide the proper supervision by the personal involvement of the broker or by the broker’s delegation to a qualified supervisor.

Does the designated broker own 10% or more of a licensed business entity if the designated broker owns 10% or more of another business entity that owns 100% of the licensed business entity?

Yes because the designated broker own 10% or more of the licensed business entity through the broker's ownership of the other entity.

How can I start a real estate brokerage referral business or Limited Function Referral Office (LFRO)?

The real estate brokerage referral business, commonly called a Limited Function Referral Office (LFRO), must have a business entity brokerage license because the business is assisting in procuring property or clients to effect the sale, exchange, or lease of real estate [TRELA §§1101.001(A)(viii) and (ix)]. Only an active licensed sales agent sponsored by a licensed business entity may make a referral on behalf of the brokerage, and any referral fee must be paid to the sponsoring broker. A key distinction between a limited function referral office and another brokerage is the agreement between the agent and the broker to limit the agent’s actions to generating referrals. We do not provide advice on how to run or set up a referral-based brokerage business (or LFRO).

How do I change my business physical address?

Log on to your My License Services account.

From the Start Menu page, click on the to change your business physical address. If you prefer, you can also submit the Change of Main Address form by email.

Log on to your My License Services account.
From the Start Menu page, click on the dropdown menu under the "Change your license information and manage relationships" category.
Click "Change/Verify Contact Information" and click "Select".
Read the information on the "Change/Verify Contact Information" introduction page and click “Next”.
Update contact information and “Place of Business” (business physical) address on the Contact Information page and click "Next".
Verify contact information on the Application Summary page and click “Submit”.
On the Statement of Applicant page, select "Yes" to certify the address information is accurate and correct, and click "Next" to process the request.

How do I request inactive status for my sales agent license?

Request inactive status by following the steps below:

Log on to your My License Services account.
From the Start Menu page, click on the dropdown menu under the "Change your license information and manage relationships" category.
Click on the "Manage my Sponsorship (Sales)" and click on the "Select" tab.
Click on the "Next" tab after reading the information on the "Manage my Sponsorship (Sales)" introduction page.
Under Actions for the sponsoring broker, click "Terminate" and then click "Next".
Verify the sponsoring broker information on the Summary page and click "Submit".
On the Attestation page, read the certification, select "Yes", and click "Submit" to process the request.

If you prefer, you can also submit the Application for Inactive Broker or Sales Agent Status form by email.

How long does a license holder have to keep financial and real estate transactions on file?

When a broker maintains a trust account, documentary records of each deposit or withdrawal for that account must be retained for four years. [Rules 535.146((c)(6) and (e)] TREC requires a broker to maintain for at least four years from the date of a closing or termination of a contract eight specific types of records in a format that can be readily made available to the Commission. [Rule 535.2(h)]

I am a 25% stockholder in a corporation that holds title to a number of investment properties. I typically negotiate the resale of the properties for the corporation. Must I disclose my licensed status?

Yes. If you participate in a transaction and hold more than a 10% interest in the corporation or other business entity, you are subject to the disclosure requirements. Additionally, you may not use your expertise to the disadvantage of others with whom you deal. [Rule 535.144(b)]

I am a broker licensed in another state and would like to apply in Texas. Can I apply online?

No. To apply as an out of state broker, you must submit the paper Application for Broker Licenseby an Individual along with requested documents and the applicable fee.

I am renewing my license for the first time. Am I required to complete the Legal Update I and Legal Update II courses?

Yes. You are under the Sales Apprentice Education (SAE) requirements. Before you can renew your license, you are required to have completed a total of 270 hours of qualifying course hours, and the Legal Update I and II courses.

To determine how many hours have posted to your license record, you may visit the license holder info search feature on our website.

I am renewing my license. How do I know how many classes I need to take for renewal?

License holders must meet Continuing Education (CE) requirements during each two- year license period. CE must include 4 hours of Legal Update I, 4 hours of Legal Update II, 3 hours of Contract-Related coursework, and 7 hours of elective CE courses for a total of 18 hours. To determine how many hours have posted to your license record, you can visit our license holder search.

A broker or designated broker of a business entity who sponsor one or more sales agents or a delegated supervisor of one or more license holders must complete the six-hour Broker Responsibility Course as part of the 18-hour CE requirement.

I have completed several courses for my law degree. Can any of these courses be used towards the required qualifying courses to obtain a sales agent license?

No. All sales agent applicants must complete the required education.

I only represent buyers. Can I advertise that I will rebate a part of my compensation to the buyer?

Yes, as long as the advertisement complies with Rule 535.155 (effective May 15, 2018) regarding any restrictions that might apply. However, a rebate to a buyer from a license holder may be subject to restrictions by the buyer’s lender. You should contact your broker or private attorney to find out how you should notify and obtain the consent of the buyer’s lender to address any impact the rebate may have on the determination regarding the buyer’s creditworthiness.

I want to renew my sales agent or broker license active but am unable to complete my CE hours by the license expiration date. Can I get an extension to complete my hours?

Yes. If TREC records do not show that you have completed your CE at the time you submit your renewal application, you must pay a $200 CE deferral fee, or renew in inactive status. Paying the deferral fee allows you to continue to be active in real estate activities and provides an additional 60 days from your expiration date to complete your CE.

If I have a licensed limited partnership, can the general partner be an LLC if a manager of the LLC is a designated broker?

No. The designated broker acting as a general partner must be an individual, not another business entity. [See TRELA §1101.355 and Rules 535.50(5) and §535.53(a)]

If I represent the seller, can I advertise that I will rebate part of my compensation to the buyer?

Yes, but the ad must disclose that payment of the rebate is subject to the consent of the seller and if the rebate is contingent upon certain restrictions, such as the use of a particular service provider, the ad must contain a disclosure that payment of the rebate is subject to restrictions. [Rule 535.155 (effective May 15, 2018)] A sales agent must also have their sponsoring broker's authorization to offer a rebate.

If a broker does not have a written agreement to represent the buyer, what recourse does the broker have if another broker “steals” a client?

A buyer can choose the broker with whom the buyer wants to work. TREC does not determine what constitutes "procuring cause" or who is entitled to a commission or other compensation. Like a listing agreement, the buyer representation agreement must be in writing and signed by the buyer to be binding.

If a real estate broker has an escrow account, can the broker keep any interest that is earned on the money on deposit?

Not unless the person depositing the money has signed an agreement authorizing the broker to keep the interest. Otherwise, the interest must be treated in the same manner as the deposited money. The broker is responsible for accounting for the interest and disbursing it to the person whose money is held by the broker. [Rule 535.146(c)(3)] Accounting is more simple if the broker puts all escrow money into a non-interest bearing account

If a sales agent’s last name is contained in the broker’s licensed or assumed business name, how can the sales agent let the consumer know the agent is not the broker?

To avoid an advertisement that implies the sales agent is responsible for the operation of the brokerage in this situation, the sales agent should make sure that the ad clearly indicates that the sales agent is not the broker. One simple way to accomplish this is to put “sales agent” next to the agent’s name. Using “REALTOR” or “agent” is insufficient to distinguish the license status of sales agent. [TRELA §1101.652(b)(23) and Rule 535.155(d)(7)]

Is a broker required to act as an escrow agent or hold the money of others?

No, not unless the broker agrees to do so.

Is a broker responsible for the actions of a sales agent who owns his or her own real estate business entity?

Yes, if the real estate business entity holds a real estate license and the sales agent is sponsored by that entity. In such a situation, the designated broker for the entity is still responsible for the sales agent's actions, even when the sales agent owns the licensed business entity. [TRELA §1101.803, Rule 535.2(l), ] A sales agent may not engage in real estate brokerage activity unless the sales agent is associated with, and acting for, a sponsoring broker. [TRELA §1101.351(c)]. When the sponsoring broker is a licensed business entity, it must have a designated broker to be active.

Is a broker responsible for the actions of a sales agent who transacts business from a separate location?

Yes. The sponsoring broker is still responsible for the sales agent's actions, even when the sales agent does not work out of the broker’s main office. [TRELA §1101.803, Rule 535.2(a)] A sales agent may not lawfully engage in brokerage activity unless the sales agent is associated with, and acting for, a sponsoring broker at all times. [TRELA §1101.351(c)]

Is a license holder acting as a principal required to provide a party with written information relating to agency?

No, but a license holder is required to provide a written notice to the other party that the license holder is licensed as a real estate broker or sales agent before entering into a contract, including a lease. Additionally, the license holder may not use the license holder’s expertise to the disadvantage of the other party. [See Rule 535.144]

Is a license holder required to provide a party with written information relating to agency?

Yes. At the time of first substantive communication with a party relating to a proposed transaction regarding specific real property, a license holder must provide a written notice regarding agency, commonly referred to as “Information About Brokerage Services” or IABS Form. [TRELA §1101.558(b-1)]. TREC publishes the Information About Brokerage Services Form, TREC No. IABS 1-0, that license holders must use to comply with the statute.

Is a license holder required to put their license number on a sign or other advertising?

No.

Is a link to the IABS form required on my website?

Yes. Rule 531.20(b) states that each broker and sales agent must provide a link on its homepage to the IABS Form labeled "Texas Real Estate Commission Information About Brokerage Services". The link must be in at least a 10 point font and in a readily noticeable place on the homepage of the business website of the broker and sales agent. The link can also be "TREC Information About Brokerage Services," in at least 12 point font.

Is a real estate license necessary in order to be an apartment locator?

Yes. TREC requires licensure if the person seeks or has an expectation of compensation for offering to locate a unit in an apartment complex to a prospective tenant. [TRELA §1101.002(6)] In addition, a person may not engage in business as a residential rental locator (apartment locator) unless the person is licensed as a real estate broker or sales agent. [TRELA §1101.351(a)(2), Rule 535.4(k)]

Is it illegal or unethical for an agent to present two offers to the seller at the same time?

The listing agent represents the seller and has a duty to present all offers in a timely manner to the seller. There is no prohibition against a license holder presenting more than one offer at a time to a seller. A seller may receive, review and negotiate several offers simultaneously.

Is the Information About Brokerage Services Form promulgated by TREC mandatory?

For all practical purposes, yes. A license holder may reproduce the IABS Form for the purpose of prefilling the Broker Contact Information section. If a license holder prefills this information, the license holder must ensure that the text of the IABS Form is copied verbatim and that spacing, borders and placement of text on the page appear identical to that in the promulgated IABS Form. [Rule 531.20(e)]

Is the use of a “net” listing agreement a breach of the broker’s fiduciary duty?

It could be. The use of net listing agreement places the broker’s interest above the principal’s interest with regards to obtaining the best possible price. A broker may not enter into a net listing agreement unless the principal requires a net listing and the principal is clearly familiar with the current market values of real property. [Rule 535.16(b)]

May a broker act as a dual agent?

No. Texas law does not permit dual agency. A license holder may not represent both principals as a dual agent under the revisions to TRELA. Under the current law, a broker must agree to act as an intermediary in accordance with the statute if the broker agrees to represent more than one party in a transaction. [TRELA §1101.561(b)] To the extent a dual agency relationship is created by accident or otherwise, a license holder must resolve the matter by immediate compliance with the notice and consent requirements under TRELA §§1101.558-561 and act as either an intermediary or represent only one of the principals in a transaction while working with the other principal only as a customer.

May a license holder who is a rental locator advertise that they will pay a prospective tenant a portion of their fee received from an apartment complex if the tenant uses the locator’s services?

Yes, as long as the ad complies with Rule 535.155 (effective May 15, 2018), which requires the consent of the party the license holder represents in a transaction. When a rental locator represents an apartment complex, the locator needs the consent of the apartment complex. When the rental locator represents a tenant and not an apartment complex, as demonstrated by a written representation agreement or other evidence of representation, the locator is not required to obtain the consent of the apartment complex because the complex is not his client. Regardless of representation, however, it is misleading advertising to advertise a rebate for an apartment complex that the locator knows has a “no rebate” policy.

Must a person be licensed to locate apartment units for prospective tenants and be paid by the owner of the apartments?

Yes, unless the person is an employee of the owner of the apartments or otherwise exempt, residential rental locators are required to be licensed as either a real estate broker or sales agent.

My business entity is a series LLC. What documents are required to be submitted with the Franchise Tax Account Status page?

If the business entity is a series LLC, you must include a copy of the Certificate of Filing from the Secretary of State's Office with the Franchise Tax Account Status page. The Certificate of Filing must show that the business entity is a registered series of the business entity listed on the Franchise Tax Account Status page.

Online Services is not accepting my temporary password. What do I do?

Copy the temporary password from the email message you received when you registered. Paste it into the “Online Services – Login and Registration” web page when you log in. You will be prompted to create a new password of your own. Once you create your password, you must save it to have future access to your online account.

What are the agency disclosure requirements for a real estate license holder?

A license holder must disclose the fact that he or she represents a party upon the first contact with another party or a license holder representing another party. This disclosure may be oral or in writing.

What can unlicensed office personnel or an unlicensed assistant do?

An unlicensed person may not engage in any activity for which a license is required. [TRELA §1101.002(1) and Rules 535.4 and 535.5]. For a more detailed discussion of what an unlicensed person can and cannot do, see the article on our website titled “Use of Unlicensed Assistants in Real Estate Transactions.”

What if a license holder does not comply with the requirements for forming an intermediary relationship?

Failure of the intermediary broker or the sponsored sales agents to comply with the Intermediary Provisions of TRELA §§ 1101.558-561 may subject them to disciplinary sanctions by the TREC, including but not limited to, revocation, suspension, reprimand and/or an administrative penalty.

What is an associated broker?

Associated broker means a broker who associates with and is paid through another broker under a relationship that is intended to be a continuous relationship, including but not limited to, an employment or ongoing independent contractor relationship. [Rule 535.154(a)(3)]

What is an intermediary?

An intermediary is a broker who negotiates the transaction between the parties when the broker or a sales agent sponsored by the broker has obtained consent from the parties to represent both the buyer and the seller. The broker intermediary may, with the written consent of the parties, appoint separate individual license holder associated with the broker to work with and advise the party to whom they have been appointed. [TRELA §§ 1101.558-1101.561 and §1101.651(d)]

What is proof of legal authority to use an assumed business name in Texas?

Generally, in Texas, filing an assumed business name is required to put the public on notice that you are doing business under a name other than your legal name. For most business entities, the assumed business name is filed with the Secretary of State. For a general partnership or individual broker, the assumed business name is filed with the county clerk in the county or counties where you do business. See https://www.sos.state.tx.us/corp/namefilingsfaqs.shtml

Evidence of registration of the assumed business name with the Secretary of State or in the county or counties where the broker does business is adequate proof of authority to do business under that name. [Rule 535.154(d)]

What is the difference between an assumed business name and a team name?

Assumed Business Name (also known as a dba) is another name for the broker’s business that can be used by all sponsored sales agents and brokers associated with this broker. Another name that indicates a broker’s line of business, e.g. property management or commercial, is also an assumed business name of the broker, even though it may not be available for use by all sponsored agents and associated brokers. [Rule 535.154(a)(4)]

Team Name is a name used only by a team or group of one or more sponsored sales agents or brokers associated with this broker. Team names must end in “team” or “group” and cannot contain the words “brokerage”, “company”, “associates” or other similar terms. [Rule 535.154(a)(5)]

What is the difference if a broker appoint sales agents to represent the buyer and the seller or if the broker makes no appointments to the principals in a real estate transaction?

If the broker appoints an associated license holder to represent the seller and another associated license holder to represent the buyer, the individual agents may offer advice and opinions regarding the real estate transaction to the party each has been appointed to represent. If the broker does not appoint associated license holders to represent the buyer and seller respectively, then the broker and/or agent may not offer advice and opinions relevant to the real estate transaction to either party and must not favor one principal in the transaction over the other principal. Appointments provide the agents the opportunity to provide a higher level of service to their clients.

What is the required information that must be provided in advertisements such as signs, email and business cards?

All advertisements must comply with TRELA §1101.652(b)(23) and Rules 535.154 and 535.155.

Rule 535.155 requires each advertisement to include the following items in a readily noticeable location in the advertisement:

The name of the license holder or team placing the advertisement; and
The broker’s name in at least half the size of the largest contact information for any sales agent, associated broker, or team name contained in the advertisement.

Notes:

A broker’s name includes a broker’s assumed business name that has been registered with TREC.
Requirements for an assumed business name and team name are set out in Rule 535.154
There is no requirement that a phone number or email address included in an advertisement belong to the broker.

What qualifies as proof of ownership of the business entity?

A resolution, minutes or other official record of the business entity. We also accept copies of tax records which indicate ownership.

When can an agent say that they “sold” a property in an advertisement?

Any agent who worked with the seller or the buyer in a transaction that resulted in the sale of a property may correctly state in an advertisement that they “sold” the property. If the license holder did not participate in that specific transaction, he cannot state or imply that his actions resulted in the sale of that property. An example of a misleading advertisement of this nature would be if a license holder sent out “Just Sold” postcards with her contact information and a picture of a recently sold property that she did not help to sell. She didn’t state that she sold it but an average person reading the card could surely and reasonably imply an erroneous claim of involvement. Another potential example of a misleading advertisement is a license holder who included a list of “Recently Sold Homes” in his advertisement that included many properties where he had no role in the transaction, but he failed to make it clear in the ad which – if any – of those transactions he was involved in. Under Texas law, a license holder may not “create a misleading impression” in their advertisement. A broker must review all ads to ensure this result is avoided.

When does a license holder dealing in property in the license holder's own name have to disclose the fact that they have a real estate license?

It is best to disclose it as early as possible but it must be disclosed in the contract, lease, or in another written document given to the other principal before the agreement is signed. [Rule 535.144(b)] The disclosure is required even if the license holder is on inactive status.

When should a license holder provide the Disclosure of Relationship with Residential Service Company form?

A license holder should fully complete and provide the Disclosure of Relationship with Residential Service Company (RSC-3) when the license holder will receive a fee from a residential service company because a party to the transaction purchases a contract from that company.

Many transactions do not require use of this form. For example,

If there is no residential service company contract as part of the transaction, you do not need to provide this form.
If you are not being paid a fee by a residential service company, you do not need to provide this form.
If a residential service company contract is part of the transaction but you do not receive a fee from that specific company, you do not need to provide this form.

Generally, the only reason you might fill out this form if you do not receive a fee from a residential service company is because the other agent or broker in your transaction is providing their own disclosure. In this situation, you would fill out the appropriate portion of the form and check the box that says you "will receive no compensation from a residential service company." Your signature in this situation is merely disclosure and is not an endorsement, approval, or otherwise binding.

Who registers an assumed business name, team, or alternate name?

Assumed Business Name: Broker [Rule 535.154(d)(1)]

Team Name: Broker [Rule 535.154(c)(3)]

Alternate Name: Individual License Holder [Rule 535.154(b)(1)]

Remember -- all these types of names must be registered with TREC before use in advertising.

Do the Standards of Practice require inspectors to determine the headroom clearance on stairs or to report inadequate clearance as a deficiency?

Inspectors are not required to measure the headroom clearance of every flight of stairs. The Standards of Practice do not establish a minimum headroom clearance height. Whether to report inadequate headroom clearance as a deficiency is up to the reasonable judgment of the inspector.

Do the Standards of Practice require inspectors to report as deficient evidence of a past attic fire?

Evidence of a past fire is not, in itself, a deficiency. Accordingly, inspectors are not required to report mere evidence of a past fire or the presence of paint in the attic. If there are any deficiencies due to fire or other causes, those deficiencies must be reported.

I already have a license. Do I have to tell you about my crime?

Yes. You are required to tell us within 30 days of a felony. Section 1101.652(a)(7) of the License Act provides that if you have entered a plea of guilty or nolo contendere or have been convicted of a felony or any criminal offense that involves fraud (including misdemeanors), you must disclose this to the Commission not later than the 30th day after the final conviction or the entry of a plea of guilty or nolo contendere. The minimum penalty is $500; maximum is $3,000 per failure to report. This means that if you wait until your renewal to notify the Commission of your felony, you could be subject to the penalty, in addition to any disciplinary action related to the crime. If you do have an unreported felony, or an unreported criminal offense involving fraud, report it to the Commission as soon as possible.

The Standards of Practice require inspectors to inspect attic ventilators and report deficiencies but do not require that they be operated. How should an inspector identify deficiencies in the power ventilators without operating them?

In inspecting an attic with a powered ventilator, which is not required to be operated, the inspector should perform a visual inspection and consider the totality of the ventilation system.

The Standards of Practice require inspectors to report as deficient the lack of a 1-3/8” solid wood or fire-rated door between a house and garage. How should an inspector positively identify fire-rated doors when the markings are covered by paint?

Information regarding fire ratings of doors is often obscured by paint. In that case, inspectors are required to do their best to determine whether the door is fire-rated and to report accordingly. In some instances, the inspector will only be able to report that he or she was not able to determine whether the door was fire-rated or that the door appeared to be (or did not appear to be) fire-rated.

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