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Active vs. Inactive

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

Request inactive status online at no cost by following the instructions below:

  • Log into our Online Services
  • Choose to Manage my Sponsorship (Sales)
  • Proceed to “Terminate” the sponsoring broker of record.

If you submit the Application for Inactive Broker or Sales Agent Status form by mail, you must include the $20.00 paper processing.

Advertising

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.

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

No.

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 535.154(m), 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.

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 535.154(n)] 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 kick-backs.

A residential service company is paying me a fee to advertise for it. Do I have to disclose that fee to my client and use a TREC form?

Yes and yes. You must also provide the client with the TREC Disclosure of Relationship with Residential Service Company form (RSC-2).

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 535.154(m) 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.

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 535.154(m)] A sales agent must also have their sponsoring broker's authorization to offer a rebate. Also, see the answer to the next question regarding notice to the buyer’s lender.

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. [Rule 535.154(g) ]. 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.

Similarly, you can use the name “Spectacular Properties” if your broker sends written notice to the Commission within 30 days of the start of the use of that name [Rule 535.154(c) and (e)] and you add additional designations such as “agent” to the advertisement to readily identify that the advertisement was placed by a sales agent. [Rule 535.154(f)] For example, the advertisement might state “call 123-1234, agent, Spectacular Properties” or “call Sally at 123-1234, agent, Spectacular Properties.

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) and 535.154; 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 am a real estate broker, can I use the term “REALTOR” on my business card?

No, unless you have the legal right to use this copyrighted trade name. See Rule 535.154(i). Check with your local board to find out if membership in the board will grant you the right to use the term “REALTOR.”

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.

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

Yes. Although this is no longer mandatory, it may still be placed on a sign.

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 Rule 535.154.

Rule 535.154 contains two requirements that must be met for all advertisements.

  1. An advertisement placed by a license holder must "clearly and conspicuously contain the name of the broker, either a business entity or an individual."
    1. A broker's assumed name may be used if it is registered with the Commission.
    2. The “clearly and conspicuously” requirement is met so long as the broker’s name or assumed name is at least half the size of the largest contact information (e.g. phone number, email address, website).
    3. The name of a sales agent sponsored by the broker may also be included in the advertisement, but an advertisement may not imply that the sales agent is the person responsible for the operation of a real estate brokerage business. This includes when a sales agent identifies himself or herself as “owner” or “partner” on an advertisement.
  2. An advertisement must include a designation that serves to clearly identify the advertiser as a real estate agent. This is no longer a requirement as of September 1, 2017. An advertisement may, however, still contain this information (it is just not mandatory).

Note: There is no requirement that a phone number or email address included in an advertisement belong to the broker.

What is considered an advertisement?

Under Rule 535.154(a), an advertisement is defined as a “written or oral statement or communication which induces or attempts to induce” a person to use the services of a real estate license holder. It includes, but is not limited to, all publications, radio or television, all electronic media including emails, texts, websites, blogs and tweets, business cards, letterhead, signs, and billboards. Once a person has agreed to use the services of a license holder, subsequent communication from the license holder is not considered an advertisement.

Applying for a License

Does Texas have reciprocity with any other state?

No.  Texas does not have reciprocity with any state.  To become licensed, you must satisfy all current Texas licensing requirements.

Do I need to go to Texas to be fingerprinted?

No. If you reside outside the service area of MorphoTrust you may request a Hard Card to get fingerprinted. A TREC-specific Hard Card must be obtained from TREC because it contains coding required by the DPS and FBI. MorphoTrust has details on how a Texas Non-resident can complete the fingerprinting process using a Hard Card.  

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 License by an Individual along with requested documents and the applicable fee.

My real estate application was filed with a name that is different than the name on my government issued ID. Will this prevent me from taking the exam?

Yes.  The name on your government issued photo ID must match the name on your real estate license application.  If the names do not match, please submit a name change request.  Include your name as it appears on the application, a copy of your government-issued photo ID, and your telephone number to TREC.

 

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.

I have a license in another state. Can I be exempt from taking the National portion of the exam?

You can be exempt from taking the National portion of the exam if you hold an active license in a state that participates in the National exam accreditation with ARELLO.  Submit a license history from the state in which you are licensed when you file your application so we can determine if you are exempt.

 

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.

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]

Financial Matters

My license is on inactive status with TREC. Can I receive money for referrals?

No. Your license must be on active status at the time you make the referral. However, if you made the referral while you were active, you may collect that fee while you are on inactive status. In addition, if you are a licensed sales agent, referral fees must be paid through your sponsoring broker.

Can a license holder donate a portion of his commission to a church if one of the church members refers a client to the license holder?

Yes, as long as the church member who made the referral receives nothing that may be defined as valuable consideration from the church or the license holder.

Can a license holder hold a gift giveaway of any prize regardless of its value as long as entry into the giveaway is not limited to only those that refer a prospect for a real estate transaction?

Nothing in TRELA or the Rules would prohibit this. However, the license holder should verify that the giveaway is not considered an illegal lottery under Sections 47.01(7) & 47.03(5) of the Texas Penal Code.

Can a license holder offer to enter an unlicensed person in a drawing to win a cruise for referring a potential lessee or buyer?

No. Since the cruise would have a value greater than $50, it is defined as valuable consideration. Although entering a name into a drawing may not have a cost associated with it, whoever won the drawing would be receiving valuable consideration. In addition, a “referral” drawing may be considered a contest defined as an illegal lottery under Sections 47.01(7) & 47.03(5) of the Texas Penal Code.

Can a license holder offer to give a $50 gift card to an unlicensed person for referring a potential lessee or buyer?

Although a license holder may not pay an unlicensed person valuable consideration for referring a potential lessee or buyer, gifts of merchandise with a retail value of $50 or less are not considered valuable consideration. [Rule 535.20(a)] Therefore, a $50 gift card that is only redeemable for certain merchandise (e.g. a gift card to a restaurant or department store) is not defined as valuable consideration and is permissible. A gift card from a bank (e.g. Visa or American Express), however, which can be converted to cash is not permissible. Any amount of cash or a credit or bonus toward rent owed is also not allowed as a reward for a referral.

Is it permitted to submit an invoice to an apartment complex falsely claiming that the locator has procured a tenant for the apartment complex?

No. The Commission can issue an order revoking the license of a locator found to have engaged in this practice. [TRELA §1101.652(b)(24)]

Can a license holder offer or pay cash to an unlicensed person for referring a potential lessee or buyer?

No. The person who made the referral and received cash would be considered an unlicensed person engaged in the business of real estate brokerage [TRELA §1101.351(a)] and could be subject to administrative penalties and criminal charges. The license holder who offers to or actually pays cash to an unlicensed person for a referral is subject to disciplinary action. [TRELA §1101.652(b)(11) & (26)] However, a license holder may compensate an unlicensed person from a foreign country or state that does not require a license to engage in real estate brokerage activities, if the person otherwise complies with the law of the foreign country and practices there as a real estate broker. [Rule 535.131(b)]

Is a locator permitted to rebate a portion of the locator's fee to the tenant?

Yes, as with all license holders, this can only be done with the prior consent of the person the locator represents. [Rule 535.147(d)] In addition, if advertising a rebate to the tenant of a portion of the license holder’s commission, the ad must disclose that the rebate is subject to consent of the party the license holder represents. [Rule 535.154(m)]

Can a rental locator rebate a portion of the rental locator’s fee received from the apartment complex to a prospective tenant if the tenant uses the locator’s services?

Yes, but a locator will be required to first obtain the consent of the apartment complex if the locator does not represent the tenant.

A residential service company is paying me a fee to advertise for it. Do I have to disclose that fee to my client and use a TREC form?

Yes and yes. You must also provide the client with the TREC Disclosure of Relationship with Residential Service Company form (RSC-2).

Can a license holder rebate a portion of the license holder’s commission to a church or other non-profit organization of the license holder’s choosing or one of the principals’ choosing?

 Yes. This is a donation and not a rebate.

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 535.154(m) 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.

Can a license holder rebate a portion of his commission to a seller? What about a buyer?

Yes. It is not a violation of TRELA or the Rules for a license holder to rebate a portion of the license holder’s commission to a party to a real estate transaction. If the rebate is to a party the license holder does not represent, the license holder must obtain the consent of the party represented by the license holder before making the payment. [Rule 535.147(d)]

When a broker holds earnest money or any money from property management activities in a trust account, how often is a broker required to account for that money?

The broker must provide a monthly accounting of trust money if there has been any activity in the account. [Rule 535.146(c)(6) (effective January 1, 2016)]

Can a broker share a commission or other compensation with an attorney when the attorney is a principal in the transaction?

It is not a violation of TRELA or the Rules for a license holder to rebate a portion of their compensation to a party in the transaction. If the rebate is to a party the license holder does not represent, the license holder must obtain the consent of the party the license holder represents. This must be done before making the payment. [Rule 535.147(d)]. If the attorney is not a principal in the transaction, then the attorney may not receive a share of the compensation. [TRELA §1101.652(b)(11).]

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)]

Does TREC require a trust or escrow record to be maintained for a specific period of time?

Yes, for four years from the date a trust or escrow document is received or created by the broker. [Rule 535.146(e)]

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)]

As a broker, am I the only person who can sign a check written on my trust account?

No. A broker may authorize another license holder to withdraw or transfer money from a trust account. The broker, however, remains responsible and accountable for the trust account and for the proper handling of trust money received by the broker. [Rules 535.2(c), 535.146(c)(7).]

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

Can TREC obtain reimbursement of commissions paid by buyers and sellers to brokers and sales agents for compensation in real estate transactions?

No, unless a refund is ordered by TREC in conjunction with an agreement resulting from an informal settlement conference or an administrative order. However, the amount ordered may not exceed the amount the consumer actually paid to the license holder for the services subject to TREC regulation and may not require payment of other damages or estimate harm. [TRELA §1101.659] In addition, TREC has no jurisdiction or authority to enforce collection of such amounts.

Does a trust account have to have a special name?

Yes. If a broker maintains a trust account, it must be cleared identified as a trust account. [Rule 535.146(c)(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 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.

I am the listing broker. An attorney has presented an offer from a buyer that the attorney represents and wants me to share my commission. Can I do this?

No. A licensed broker is prohibited from sharing compensation with anyone who acts in the capacity of a broker but is not licensed as a broker [TRELA §1101.651(a) and §1101.652(b)(11)]. In cases such as this, the listing broker still needs to present the offer to the seller. The listing broker should inform the seller that the broker is prohibited from sharing compensation with the attorney. Assuming the attorney is licensed in Texas, the seller and buyer may work something out between themselves regarding any compensation to be paid to the Texas attorney. The listing broker can agree to reduce the commission if requested by the seller without violating the prohibition on splitting. For further detail, see the article “Can brokers share their fees with an attorney?” on our website.

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.

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 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 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)]

What is the definition of a “commission”?

A commission or fee includes any form of compensation received for engaging in an act for which a license is required, essentially anything of value. [See Rules 535.1(5) and 535.20(a)]

When a broker holds money from property management activities in a trust account, how often is a broker required to account for that money?

The broker must provide a monthly accounting of trust money if there has been any activity in the account. See [Rule 535.146(c)(6)]

Can a real estate license be revoked if a license holder files for bankruptcy?

No. However, a license holder's bankruptcy does not affect a pending complaint or limit disciplinary action by TREC. However, even if a license holder’s debts are discharged in bankruptcy, if the underlying conduct violates §1101.652(a-1)(1) or §1101.652(b) of TRELA, disciplinary action can be taken against the license holder for the underlying conduct. Further, a judgment that involves conduct that constitutes a violation of §1101.652(a-1)(1) or §1101.652(b) of TRELA may be eligible for payment from the Real Estate Recovery Trust Account even if the debt was discharged in bankruptcy.

I loaned Broker Smith $10,000 to build his real estate office and now he won't repay me. Can you help?

No. Failure to repay a loan constitutes a breach of your private agreement with the license holder and is not a violation of TRELA or the Rules. In addition, since it is not a violation of §1101.652(a-1)(1) or §1101.652(b) of the License Act, any judgment obtained would not be eligible for payment from the Real Estate Recovery Trust Account.

Consumer Information

Is a “residential service contract” the same as a “home warranty”?

Yes, both terms refer to the same product.

Contracts

Must the earnest money check be deposited to create a binding contract?

The formation of a real estate contract requires "consideration" for the contract to be binding. In general, the buyer's promise to buy and seller's promise to sell is consideration. Although the TREC contract forms include a provision for the deposit of earnest money, if the buyer fails to deposit the earnest money the buyer is considered in default of the contract, and the other party may then exercise the remedies under paragraph 15 of the contract. However, TREC is unable to make a determination as to whether your contract is binding. You should discuss the validity of your contract with a private attorney. Once a binding agreement has been created, a license holder handling the check must deposit the earnest money in a timely fashion in accordance with the contract terms. In addition, a license holder’s failure to deposit the earnest money within a reasonable time is a violation of §1101.652(b)(30) of TRELA.

Does TREC have an improved commercial earnest money contract form?

No. You must use a form drafted by an attorney or a form supplied by either the buyer or seller. [Rule 537.11(a)] If you are a member of The Texas Association of Realtors (TAR), you may use a form prepared by TAR attorneys.

I signed a contract to purchase a timeshare interest yesterday. Last night I reconsidered. Can I back out?

Yes. You have to provide the appropriate cancellation notice to the developer before the sixth day after you signed the contract. Consult the contract or the timeshare disclosure statement you received for instructions on how to proceed.

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.

A residential service company is paying me a fee to advertise for it. Do I have to disclose that fee to my client and use a TREC form?

Yes and yes. You must also provide the client with the TREC Disclosure of Relationship with Residential Service Company form (RSC-2).

I am changing sponsoring brokers. Do I get to take my listings with me?

No. Listing agreements are private contracts between the property owner and the real estate broker, not the sales agent.

If a buyer wishes to have a hydrostatic test performed on a home, what is required for a seller to consent to such a test?

Both TREC forms 20-13 and 30-12, The One to Four Family Residential Contract (Resale) and Residential Condominium Contract (Resale), state, “Any hydrostatic testing must be separately authorized by Seller in writing.”

Therefore, there must be a separately signed document of authorization by the seller for a hydrostatic test. Thus, for example, any authorization language in the special provisions of the standard Resale contract is not separate consent by a seller.

If a broker has an exclusive listing with a seller, may another broker solicit a listing from the same seller that would begin after the other listing expired?

Yes. Rule 535.153 states that §1101.652(b)(22) of TRELA does not prohibit a license holder from soliciting a listing from the owner while the owner's property is subject to an exclusive listing with another broker, provided the listing does not commence until after the current listing expires.

We are selling our house and the buyer never paid the option fee. What happens now?

Typically, the buyer's agent collects the option fee upon final acceptance of the terms of the contract and delivers the option fee check to the seller's agent. Paragraph 23 in the 1-4 Family Residential Contract provides "If no dollar amount is stated as the Option Fee or if the Buyer fails to pay the Option Fee to Seller within the time prescribed, this paragraph will not be a part of this contract and Buyer shall not have the unrestricted right to terminate this contract." Under the terms of the 1-4 Family Residential Contract, the buyer (or buyer’s agent) has three days to deliver the option fee. If the fee is not paid and the parties need help interpreting this provision, they will need to consult with a private attorney.

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.

I listed my property for sale with a broker and the broker has done nothing about selling the house. Can I break my contract and list with someone else?

Your listing contract with the broker is a private legal contract. TREC is unable to advise you on private contractual matters. If you feel that the broker has not fulfilled the broker's part of the agreement, i. e. advertising, holding open houses, etc., then you may have grounds to terminate the contract but you would need to contact a private attorney for help in making that determination. You could also ask the broker to agree to cancel or release the listing. If the broker agrees, then the contract can be mutually rescinded.

I’m buying a house. Do I have to have pay for an option period to be able to buy the house?

No. The termination option is a negotiable contract term. However, if you pay the seller an agreed option fee, you have the unrestricted right to terminate the contract for any reason if you give written notice to the seller during the option period. A buyer can use the option period to perform an inspection of the property and negotiate an amendment to the contract for any necessary repairs as a result of the inspection.

Can listing agreements be extended?

Listing agreements are private contracts between a real estate broker and a seller. The terms of the contract and/or desires of the parties would determine whether the listing agreement can be extended. You should contact a private attorney if you have any questions about extending a listing agreement.

I am a sales agent and am not sure how to fill out the listing agreement form. Can you help me?

No. TREC is unable to advise you on how to fill out a private contract form. You should direct your questions to your sponsoring broker. If your sponsoring broker is unable to help you with your questions about a Texas Association of Realtors (TAR) listing agreement form, you can direct your questions to TAR.  

Does TREC have a promulgated listing agreement form?

No. A listing agreement is a private contract between a real estate broker and a property owner and is not promulgated by TREC. The Texas Association of Realtors (TAR) provides certain forms to its members. If you are a member, you may find a listing agreement form that meets your needs through TAR. Otherwise, you should consult with a private attorney.

I signed a listing agreement with a broker and don’t understand some of the terms in the agreement. Can you explain the terms to me?

No. TREC is unable to advise you in private contractual matters. You should discuss the terms of the listing agreement with a private attorney.

Does TREC have a promulgated buyer representation agreement?

 No. A buyer representation agreement is a private contract between a real estate broker and a buyer and is not promulgated or regulated by TREC. You should consult with a private attorney. The Texas Association of Realtors (TAR) provides certain forms to its members. If you are a member, TAR may have a form that fits your needs.

When a contract falls through, can part of the earnest money be held to pay the commission fee for the other real estate license holder?

No, unless the parties agree in writing otherwise.  

My agent moved to another broker’s office and I want them to continue to handle my listing. Can I switch my listing to the new broker’s office?

No. Listing agreements are private contracts between the property owner and the real estate broker, not the sales agent. You can ask the original broker to release you from the agreement or contact a private attorney to advise you if you can terminate the listing agreement in some other fashion. TREC does not have the authority to require a broker to release you from a listing agreement.

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)]

How long does an agent have to deposit the earnest money once a binding contract has been negotiated?

The earnest money must be deposited by the close of business of the second working day after execution of the contract by the principals, unless a different time is agreed upon in writing by the principals to the transaction. [Rule 535.146(b)(3)]

I was trying to buy a house and the earnest money was deposited in the broker's escrow or trust account. The transaction has fallen through and now the broker won't return the earnest money.

If the broker used a Commission promulgated form, it contains provisions permitting the broker to require the buyer and seller to agree on who gets the earnest money and to sign a release before the money is disbursed. See Rule 535.146(d) for proper procedures for handling earnest money disputes where the broker is holding the money in a trust or escrow account.

We tried to buy a house but our loan application was not approved. Our $500 earnest money had been deposited with a title company and they said they wouldn't return it without a release signed by the seller, which the seller won't sign. Help!

The Commission does not have jurisdiction over title companies. While a license holder is encouraged to assist the parties in the exchange of the necessary earnest money release and need to sign the release as appropriate, there is nothing in TRELA or the Rules to determine who is entitled to the earnest money. You will need to consult a private attorney.

I am a seller and I signed a contract with a buyer. Before the earnest money was deposited, the buyer backed out. Am I entitled to the earnest money?

The Commission does not have jurisdiction to decide which party is entitled to the earnest money. However, a real estate license holder's failure to deposit earnest money in accordance with the terms of the contract could form the basis of a complaint. Please note that TREC cannot order a license holder to pay money damages. You will need to consult a private attorney about monetary damages or other civil remedies.

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.

How are days counted in a TREC contract?

Starting with the effective (final execution) date of the contract, the first day of the period starts the next day. Each day is counted as calendar day.

Is the Disclosure of Relationship with Residential Service Company form required for every transaction?

No. This form is required only when a residential service company agrees to pay a license holder for a service provided to or on behalf of the company. The form should indicate which license holders have received or will receive the payment. If a license holder is not receiving a payment from the company, this should be noted as well. Each license holder must sign the form.

My client does not want to accept the property “as is” and wants to wait until after the inspection to list specific repairs that he wants the seller to fix. Can I just leave both boxes in Paragraph 7D of the One to Four Family Residential Contract (Resale) blank or can I check 7D 2 and write in “repairs to be listed following inspection”?

Neither option is permissible. Leaving both boxes in blank in Paragraph 7D or altering the contract terms by adding language that does not enumerate specific repairs in Paragraph 7D2 could be considered to be acting negligently or incompetently if a complaint were to be filed in connection with the transaction [TRELA §1101.652(b)(1)]. The buyer should only choose Paragraph 7D2 if there are specific repairs known at the time of the contract that the buyer wants the seller to pay for. Otherwise, the buyer should check Paragraph 7D1. Most buyers in your client’s situation will then also elect to pay an option fee pursuant to Paragraph 23 in exchange for the right to terminate for any reason within a negotiated number of days. During this option period, an inspection can be performed and if specific repairs are identified, the parties can negotiate to amend the contract to address these items, or the buyer can terminate the contract.

My broker did not fill out our contract properly and the effective date is blank. Does this mean that the contract is invalid or void?

The Commission can not make a determination about the validity of your contract. You should consult a private attorney regarding this issue. A license holder’s failure to properly complete a TREC promulgated form completely and accurately could be considered negligence and subject the license holder to disciplinary action. [TRELA §1101.652(b)(1)]

What should I do if TREC doesn’t promulgate a form that I need?

The Texas Association of Realtors (TAR) provides certain forms to its members. However, if you are not a member of TAR, you should have an attorney draft the necessary documents. It is a violation of the law for a license holder to draft an instrument that transfers or otherwise affects an interest in real property. [TRELA §1101.654]

Can a non-license holder use the promulgated contract forms?

Yes. The contract forms are available for public use. A TREC contract form, however, is intended for use primarily by licensed real estate brokers or sales agents who are trained in their correct use. A mistake in the use of a form may result in financial loss or an unenforceable contract. A person using a TREC form assumes all risks associated with its use.

Would it be permissible to use a promulgated contract form as a contract for deed or contract of sale by making appropriate changes in Paragraph 11?

No. None of the forms promulgated by TREC are intended for use as a contract for deed. An attorney will need to prepare an appropriate form.

Does a license holder have to use TREC's contract forms? Does TREC ever discipline a license holder who fails to use an adopted form?

Yes and yes. A license holder is required to use contract forms adopted by TREC. [TRELA §1101.155, Rule 537.11, etc.] Some exceptions for when a license holder does not have to use a form are in Rule 537.11(a). A license holder should also be familiar with Rules 537.11(f)-(g). Those rules prohibit a license holder from adding anything except factual matters or business details to a form adopted by TREC for mandatory use. Contract forms adopted for mandatory use are on our website.

We put in an offer to buy a house. The agent held the offer and then another offer came in on the same house. Isn't it illegal or unethical for an agent to present two offers to the seller at the same time? Shouldn't an agent present the first offer received so that the seller accepts or rejects it before presenting the second offer?

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.

Does a lease for a term of longer than one year and a contract for the sale of real estate need to be in writing to be enforceable?

Yes. The Statute of Frauds, as defined by Chapter 26 of the Business and Commerce Code, requires that certain agreements be reduced to writing to be enforceable. However, you should consult with a private attorney for advice on this matter.

My wife and I signed an offer to buy a house over the weekend. Now we have changed our minds and don't want to buy the house after all. Can we get out of the deal?

If the seller has accepted your offer, you may have a binding contract. There is no automatic three-day or 72 hour cooling off period for you to change your mind like in some other consumer contract situations. Any rights that you have to terminate the contract will be contained in the contract. For example, you may have paid a fee to obtain an “option” period in the contract. You should consult with a private attorney for advice regarding termination of your contract.

Duties and Disclosures

Does a link to the IABS Form in my email signature satisfy the representation disclosure required by TRELA §1101.558?

No. Rule 531.20(d) states that providing a link to the IABS Form in a footnote or signature block of an email is insufficient. The IABS Form can be provided by:
(1) personal delivery;
(2) first class mail or overnight common carrier delivery service; 
(3) in the body of an email; or
(4) as an attachment to an email or as a link in the body of an email so long as there is a specific reference to the IABS Form in the body of the email.

I bought a house from Sam Seller through broker Bob Brown three months ago. I did not get it inspected since the seller and the broker said everything was in good shape. Yesterday I discovered a big problem with the house that was never disclosed to me. W

If you feel the broker knew about the problem with the house and didn't tell you about it, you can file a written complaint with TREC. A license holder who makes a knowing misrepresentation or fails to disclose a latent defect can be disciplined by the Commission. [TRELA §1101.652(b)(3)] Should you want to take legal action against the seller and/or the broker for damages, you will need to consult with a private attorney

A residential service contract is part of a transaction but I am not getting paid by the residential service company. Do I still have to use the TREC Disclosure of Relationship with Residential Service Company form (RSC-2)?

No.

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)]

Are locators subject to the agency disclosure requirements of The Real Estate License Act?

It depends. Unless an exception applies, a locator representing either party must disclose that representation on the first contact with the other party. If the transaction concerns a residential lease of less than one year and a sale is not being considered, the locator is not required to provide the tenant with a copy of the statutory information about agency (Information about Brokerage Services). [TRELA §1101.558(c)]

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)].

Does the use of the TREC Disclosure of Relationship with Residential Service Company form (RSC-2) apply to both sale and lease transactions?

Yes.

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 535.154(n)] 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 kick-backs.

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)].

Must the permission of the owner authorizing the agent to offer the unit for rent be in writing?

No, the permission may be in writing or oral. If the permission is given over the telephone, for example, the license holder should document who gave the permission and how it was given in case that information is later requested by TREC in connection with a complaint.

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).

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.

Are there exceptions when the statutory written statement is not required?

Yes. The statement 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 statement is not generally required when the license holder is acting solely as a principal in the transaction.

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.

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.

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]

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)]

Is the Disclosure of Relationship with Residential Service Company form required for every transaction?

No. This form is required only when a residential service company agrees to pay a license holder for a service provided to or on behalf of the company. The form should indicate which license holders have received or will receive the payment. If a license holder is not receiving a payment from the company, this should be noted as well. Each license holder must sign the form.

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]

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.

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 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 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:

  1. 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;
  2. 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); 
  3.  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; and
  4. both the buyer and seller represented by the broker or the broker’s sales agents execute an agreement regarding notice of intermediary before the contract is negotiated.

 

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)]

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)]

We put in an offer to buy a house. The agent held the offer and then another offer came in on the same house. Isn't it illegal or unethical for an agent to present two offers to the seller at the same time? Shouldn't an agent present the first offer received so that the seller accepts or rejects it before presenting the second offer?

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.

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]

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.

Education Information

My real estate application was filed with a name that is different than the name on my government issued ID. Will this prevent me from taking the exam?

Yes.  The name on your government issued photo ID must match the name on your real estate license application.  If the names do not match, please submit a name change request.  Include your name as it appears on the application, a copy of your government-issued photo ID, and your telephone number to TREC.

 

Can all or part of the educational hours be waived in view of a person's business experience?

No. A person's license in another state or experience in real estate brokerage or any related business does not substitute for the educational requirements. [Rule 535.63(a)] To be eligible for a Texas license, an out-of-state license holder must meet all current Texas licensing requirements found on our website. In addition, an applicant may not have to take the national portion of the licensing examination if the applicant maintains a license equivalent to the license being applied for and has already passed a comparable national examination that is accredited by a nationally recognized real estate regulatory association such as ARELLO.

I passed one section of the exam and my application has expired. Will I need to take both sections of the exam when I reapply?

Exam results for each section of the exam are valid for one year from the passing date. If you reapply less than one year from passing one section of the exam, you will not need to retake that section. Both the State and National sections of the exam must be passed before the application expiration date.

 

I have a license in another state. Can I be exempt from taking the National portion of the exam?

You can be exempt from taking the National portion of the exam if you hold an active license in a state that participates in the National exam accreditation with ARELLO.  Submit a license history from the state in which you are licensed when you file your application so we can determine if you are exempt.

 

I want to renew my 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.

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.

 

How are Disputes Handled?

I bought a house from Sam Seller through broker Bob Brown three months ago. I did not get it inspected since the seller and the broker said everything was in good shape. Yesterday I discovered a big problem with the house that was never disclosed to me. W

If you feel the broker knew about the problem with the house and didn't tell you about it, you can file a written complaint with TREC. A license holder who makes a knowing misrepresentation or fails to disclose a latent defect can be disciplined by the Commission. [TRELA §1101.652(b)(3)] Should you want to take legal action against the seller and/or the broker for damages, you will need to consult with a private attorney

I signed a contract to purchase a timeshare interest yesterday. Last night I reconsidered. Can I back out?

Yes. You have to provide the appropriate cancellation notice to the developer before the sixth day after you signed the contract. Consult the contract or the timeshare disclosure statement you received for instructions on how to proceed.

What kind of criminal matters will prevent an applicant from obtaining a real estate license?

To be eligible for a real estate license, applicants must prove to TREC that they have the required honesty, trustworthiness & integrity. [TRELA §1101.354(2)] Each applicant is evaluated individually and TRELA does not contain a list of crimes or number of crimes that would automatically disqualify an applicant from obtaining a license. However, Rule 541.1(a) does list the types of criminal offenses that TREC considers directly relate to the duties and responsibilities of a license holder and tend to demonstrate a person’s inability to represent the interest of another with honesty, trustworthiness and integrity. Rule 535.52(b) also addresses conduct that tends to demonstrate that an applicant does not possess the requisite honesty, trustworthiness or integrity. In addition, pursuant to Chapter 53 of the Texas Occupations Code (www.statutes.legis.state.tx.us/) and Rule 541.1(c), TREC will consider evidence of certain mitigating factors and rehabilitation. It is the responsibility of the applicant to provide that evidence to TREC. [Rule 541.1(d)] Before applying for a license, a person may request TREC to determine whether the person’s moral character complies with the requirements for licensing by filing a Moral Character Determination (MCD). This form is on our website.  

What are the penalties for unlicensed brokerage activity?

Practicing real estate without an active license is a criminal offense, specifically, a Class A misdemeanor punishable by confinement of up to one year in a county jail and a fine of up to $4,000.00. [TRELA §1101.756] TREC can also pursue administrative penalties not to exceed $5,000 for each violation. Each day a violation continues can be considered a separate violation for imposition of the administrative penalties. [§1101.702 of the License Act] The Commission may also issue a “cease and desist” order. [§1101.759 of the License Act] Finally, as a State Agency represented in civil court proceedings, TREC can obtain injunctive relief, including court costs and attorneys fees incurred in obtaining such relief. [TRELA §1101.751]

I have a residential service contract and need my toilet repaired. Can TREC help me with that or should I just call a repairman?

No, your contract first requires you to contact the residential service company to request service. They will instruct you on your contract procedure for obtaining repairs. If you have a problem with your residential service company’s response, then you should contact TREC’s residential service ombudsman at (512) 936-3049.

Can TREC obtain reimbursement of commissions paid by buyers and sellers to brokers and sales agents for compensation in real estate transactions?

No, unless a refund is ordered by TREC in conjunction with an agreement resulting from an informal settlement conference or an administrative order. However, the amount ordered may not exceed the amount the consumer actually paid to the license holder for the services subject to TREC regulation and may not require payment of other damages or estimate harm. [TRELA §1101.659] In addition, TREC has no jurisdiction or authority to enforce collection of such amounts.

Can a license holder be disciplined for paying a commission or a fee to or dividing a commission or fee with an unlicensed person for services as a real estate agent?

Yes. The Commission may suspend or revoke or take other disciplinary action against a license holder who pays any portion of a commission or fee to anyone other than a licensed Texas broker or a broker licensed in another state. [TRELA §1101.652(b)(11)]

Can TREC provide legal advice?

TREC attorneys can provide general advice about the applicability or interpretation of the provisions of The Real Estate License Act and TREC Rules but cannot, with few exceptions, give advice pertaining to specific matters or transactions, other laws, or civil matters.

Does TREC mediate complaint matters between a complainant and a license holder?

Once a complaint is opened, if the Mediator with the Commission’s Standards & Enforcement Services determines the case is a good candidate for alternative dispute resolution, the Mediator will offer a complainant and license holder the opportunity to participate in informal telephone dispute resolution. The Mediator, acting as a facilitator between the complainant and license holder, assists the parties in trying to reach an agreed settlement. If the parties reach an agreement, the Commission closes the complaint without further investigation. The agreed settlement may or may not include some form of disciplinary action against the license holder. If the process does not result in an agreed settlement, the case proceeds through the normal complaint process. The dispute resolution process is kept confidential from each party and from other Commission staff.

Does TREC mediate contested complaint matters?

TREC offers an informal settlement conference for any contested matter involving a license holder or registrant or certificate holder. The process is voluntary and must include the license holder, registrant or certificate holder, at least one public member of the Commission, and two staff members of TREC. While the complainant may be present at the conference, they are not a party to the proceeding. At the conclusion of the informal conference, the Commission member or TREC staff may propose an informal settlement. The license holder, registrant or certificate holder may accept or reject the settlement offer. A final agreed order based on the settlement recommendation would conclude a contested case matter. If an agreement is not reached, the case is referred to the Director of Standards & Enforcement for appropriate action. Also, a party to a contested matter filed with the State Office of Administrative Hearings (SOAH) may, before a hearing, request that the matter first be heard by a SOAH mediator.

I’ve been harmed by a license holder. Can TREC recover damages for me?

No, TREC does not have the authority to require a license holder to pay another person for monetary damages. Recovery of these losses is a civil action and should be discussed with a private attorney. In limited circumstances, TREC may order a license holder or registrant or certificate holder to pay a refund to a consumer. The refund cannot exceed the amount paid by the consumer to the license holder or registrant or certificate holder for a service or accommodation regulated by TREC. The order must be the result of a complaint matter that resulted in an agreement with the license holder or registrant or certificate holder from an informal settlement conference or an enforcement order.

Can I find out online if there have been any disciplinary actions against an agent?

Yes. At the top of TREC’s homepage go to “Search Licensee Info / Education” and type in the license holder’s name and click. Then click on the license holder’s name from the list that you are given. Under the result box that you receive will be a line entitled “Disciplinary Search”. Click on this to see what disciplinary actions have been taken. If no “Disciplinary Search” line appears under your name search result, then there have not been any disciplinary actions taken against that license holder

Do I need to file a complaint with TREC first before I can obtain funds from the Real Estate Recovery Trust Account or the Real Estate Inspection Recovery Fund?

No, filing a complaint with TREC is not a prerequisite to obtaining funds from one of the two recovery accounts maintained by TREC for paying judgments taken by consumers against real estate license holders or inspectors. Additional information about the two recovery accounts maintained by TREC are on our website.

What do I need to send with my complaint to TREC?

Complete the complaint form on our website by answering each question. Be sure to sign it. Attach additional sheets as needed to fully explain your complaint. When applicable attach clear and complete copies of all related documents. Do not send originals. For example, if your complaint is about an inspection report, attach a copy of the report or state why it is not available. Or, if your complaint is regarding a promise made by your buyer’s agent, attach a copy of your buyer representation agreement, if the promise was made in writing, and the sales contract and the TILA/RESPA Integrated Disclosure (TRID) statement. If the promise was made at closing in front of the title company closing agent, you could include this witness’ name and contact information and describe what this witness may know.

What types of complaints can be filed with TREC?

Written and signed complaints are accepted against the following types of businesses: real estate brokers and sales agents, real estate inspectors, TREC-approved education providers for real estate and inspection courses, TREC-approved instructors for real estate and inspection courses, residential service companies, timeshare developers, easement and right-of-way agents, and unlicensed persons engaging in any of these activities. TREC does not regulate and accept complaints against: Real Estate Developers (not regulated), Home Builders (not regulated), Appraisers (see the Texas Appraiser Licensing & Certification Board at talcb.texas.gov), Mortgage Brokers and Loan Officers (see the Texas Dept. of Savings & Mortgage Lending at www.sml.texas.gov), Property Tax Consultants (see the Property Tax Consultant Board of the Texas Dept. of Licensing and Regulation at www.license.state.tx.us/PTC/PTC.HTM), Title Insurance Companies (see the Texas Dept. of Insurance at www.tdi.texas.gov), Auctioneers (see the Texas Dept. of Licensing and Regulation at https://www.tdlr.texas.gov/auc/auclaw.htm, Manufactured Housing (see the Texas Department of Housing and Community Affairs at www.tdhca.state.tx.us/mh/), Plumbers (see the Texas State Board of Plumbing Examiners at www.tsbpe.state.tx.us), or Wood Destroying Insect Inspectors (see the Texas Department of Agriculture at www.texasagriculture.gov).

What happens after I file a complaint with TREC?

You will be notified by email or mail that your complaint has been received. If an investigation is opened, each person against whom the complaint is filed will receive a copy of the complaint. After the investigation is concluded, the information obtained will be reviewed to determine whether there is sufficient evidence to take disciplinary action for a violation of the applicable statute or Commission’s rules. Disciplinary action could include a formal reprimand, the suspension or revocation of a license, payment of an administrative penalty, or other appropriate action. Investigations and the disciplinary process differ in complexity and duration, so providing a time of completion is not possible.

How do I file a complaint with TREC?

There are instructions and a complaint form on our website. Please note that although the complaint form is in a fillable pdf format, once you have completed the form, you need to sign it before sending it to TREC.

Does a license holder have to use TREC's contract forms? Does TREC ever discipline a license holder who fails to use an adopted form?

Yes and yes. A license holder is required to use contract forms adopted by TREC. [TRELA §1101.155, Rule 537.11, etc.] Some exceptions for when a license holder does not have to use a form are in Rule 537.11(a). A license holder should also be familiar with Rules 537.11(f)-(g). Those rules prohibit a license holder from adding anything except factual matters or business details to a form adopted by TREC for mandatory use. Contract forms adopted for mandatory use are on our website.

Can a real estate license be revoked if a license holder files for bankruptcy?

No. However, a license holder's bankruptcy does not affect a pending complaint or limit disciplinary action by TREC. However, even if a license holder’s debts are discharged in bankruptcy, if the underlying conduct violates §1101.652(a-1)(1) or §1101.652(b) of TRELA, disciplinary action can be taken against the license holder for the underlying conduct. Further, a judgment that involves conduct that constitutes a violation of §1101.652(a-1)(1) or §1101.652(b) of TRELA may be eligible for payment from the Real Estate Recovery Trust Account even if the debt was discharged in bankruptcy.

I loaned Broker Smith $10,000 to build his real estate office and now he won't repay me. Can you help?

No. Failure to repay a loan constitutes a breach of your private agreement with the license holder and is not a violation of TRELA or the Rules. In addition, since it is not a violation of §1101.652(a-1)(1) or §1101.652(b) of the License Act, any judgment obtained would not be eligible for payment from the Real Estate Recovery Trust Account.

My wife and I signed an offer to buy a house over the weekend. Now we have changed our minds and don't want to buy the house after all. Can we get out of the deal?

If the seller has accepted your offer, you may have a binding contract. There is no automatic three-day or 72 hour cooling off period for you to change your mind like in some other consumer contract situations. Any rights that you have to terminate the contract will be contained in the contract. For example, you may have paid a fee to obtain an “option” period in the contract. You should consult with a private attorney for advice regarding termination of your contract.

Inspector Standards of Practice

Yes. The specific requirement to report the deficiency takes precedence over the general limitation against inspecting an photoelectric sensor.

Do the Standards of Practice require inspectors to report double-tapped neutral wires on a panel box terminal as deficient?

Yes, double-tapped grounded conductors (neutrals) are a deficiency and must be reported as such, unless otherwise approved and listed by the manufacturer.

Is the absence of weather-strip on the door a required reporting deficiency?

Yes, Section 535.228(f)(2)(E)(i) requires inspectors to report deficiencies in weather stripping.

Does TREC consider a roof with roofing felt ending short of the drip edge and the rake not overlapped over the drip edge a required reporting deficiency? If yes, is the inspector required to inspect 100% of the materials under the edge of the roof? If no, is the inspector allowed to inspect in a representative manner?

Section 535.228(c)(3)(D) of the Standards of Practice requires inspectors to report as deficient deficiencies in flashing details. Drip and rake edge flashing materials are recommended by most shingle manufacturers but are not required. If installed and if visible, the installation described in your question is required to be reported as a deficiency. However, the inspector is not required to inspect every inch of the material under the roof and may “spot check” for this condition.

Is the inspector required by the Standards to state or explain a condition as a hazard to the consumer?

It is up to the “reasonable judgment” of the inspector to determine if the situation encountered during the inspection is or is not a hazard for the inspector’s client.

Is the absence of gutters a defect and required reporting item per TREC?

No. Unless specifically indicated otherwise, the Standards of Practice only address items that are present at the time of the inspection. If gutters are present, they are required to be inspected under §535.228(b)(1)(C).

Is a License Required?

I have a property management company and engage in leasing activity. May I have some of my unlicensed employees solicit business for me?

No. A rental agent who solicits a prospect by phone must be licensed.

Do I need a license to act as an on-site manager of an apartment complex?

No, but this exemption only applies to apartments; managers of condominiums or town homes need to be licensed. Note, also, that the "on-site" requirement means that you have an office at the apartment complex, not that the manager has to live there.

Does a property manager have to be licensed?

It depends on what the property manager is doing for the property owner. If the duties include showing or leasing the property for the owner for which the manager gets paid, a license is required. A license is also required for any person who controls the acceptance or deposit of rent from a resident of a single-family residential real property unit. See TRELA §1101.002(1)(A)(x) and Rule 535.4(g)

Do I need a license to sell or lease mineral or mining interests?

No.

Do I need a license to sell or lease cemetery lots?

No.

Is a license required to sell a timeshare interest in Texas?

It depends. If the sales agent is an employee of the owner of the timeshare, the employee would not be required to be licensed. [Rule 535.5(d)] Otherwise, the sales agent needs to be licensed

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)]

What are the penalties for unlicensed brokerage activity?

Practicing real estate without an active license is a criminal offense, specifically, a Class A misdemeanor punishable by confinement of up to one year in a county jail and a fine of up to $4,000.00. [TRELA §1101.756] TREC can also pursue administrative penalties not to exceed $5,000 for each violation. Each day a violation continues can be considered a separate violation for imposition of the administrative penalties. [§1101.702 of the License Act] The Commission may also issue a “cease and desist” order. [§1101.759 of the License Act] Finally, as a State Agency represented in civil court proceedings, TREC can obtain injunctive relief, including court costs and attorneys fees incurred in obtaining such relief. [TRELA §1101.751]

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.

Is TREC interested in compliance by residential rental locators?

Yes. The Commission members have instructed the staff to enforce the law vigorously. Unlicensed individuals who conduct residential rental location activity are subject to administrative penalties and criminal charges. [TRELA §1101.757 & §1101.759]

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)]

I went on a tour to inspect unimproved lots. The guide was not licensed, but she showed us the lots and told us about possible developments on the land. Is this legal?

It depends. If the guide is an employee of the owner of the lots, she would not be required to be licensed. [Rule 535.5(d).] Otherwise, the guide needs to be licensed in accordance with §1101.002(1) of TRELA. For example, if the owner is a parent corporation, an employee of a subsidiary corporation selling for the parent corporation would need to have a license. [Rule 535.4(i).]

Is a residential service company required to be licensed to sell residential service contracts in Texas?

Yes. See the general information and forms available on the TREC website.

What can unlicensed office personnel or an unlicensed assistant do?

An unlicensed person may act as a host or hostess at a property being offered for sale by the broker. The unlicensed person, however, may not engage in any activity for which a license is required or hold themselves out as license holder. [Rule 535.5(h)] An unlicensed person may also perform secretarial, clerical, or administrative tasks. [Rule 535.5(g)] You should also review our website regarding “Information for Brokers and Salespersons Regarding Use of Unlicensed Assistants in Real Estate Transactions for further examples of what can and cannot be done.

Can all or part of the educational hours be waived in view of a person's business experience?

No. A person's license in another state or experience in real estate brokerage or any related business does not substitute for the educational requirements. [Rule 535.63(a)] To be eligible for a Texas license, an out-of-state license holder must meet all current Texas licensing requirements found on our website. In addition, an applicant may not have to take the national portion of the licensing examination if the applicant maintains a license equivalent to the license being applied for and has already passed a comparable national examination that is accredited by a nationally recognized real estate regulatory association such as ARELLO.

Does Texas have reciprocity with any other states regarding a real estate license?

No, but a Texas broker may share a commission with a foreign license holder so long as the foreign license holder does not engage in an activity requiring a license in Texas. [TRELA §1101.651(a)] In addition, a person actively licensed as a real estate broker or sales agent in another state may be entitled to have certain experience and educational requirements waived. [TRELA §1101.357 and §1101.362, Rule 535.62(b)]

How can an out-of-state broker sell land in Texas?

The foreign broker must either associate with a Texas broker who handles all the negotiations and other acts that require a license in Texas, including showing the broker’s listings or soliciting listing of real property, or obtain a Texas real estate license. No license is necessary to sell land in Texas as long as the broker does not perform any acts in Texas that require a license.

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.

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 I use a power of attorney to engage in a real estate brokerage transaction without a real estate license?

Yes, but with limitations. [Rule 535.32]. The person may not use the power of attorney to engage in more than three real estate transactions per calendar year. [TRELA §1101.005(2) and Rule 535.32]

Is a licensed attorney required to hold a real estate license to act as a broker?

Generally no. As long as the attorney is licensed in Texas, they are exempt from the licensure requirements. [TRELA §1101.005(1)] The Texas licensed attorney can do everything a broker can do except sponsor sales agents, share compensation with an agent, or act as the designated broker for a business entity licensed by TREC. [TRELA §1101.355(b)]

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)]

Do I need a real estate license to sell a campground membership?

No. Campground membership sales are regulated by the Texas Secretary of State’s Office, Statutory Documents Section, under the provisions of the Texas Camping Membership Resort Act [Chapter 222, Texas Property Code] and you should check with that agency regarding its requirements.

Can an unlicensed assistant show a property to a broker’s client, if all the assistant does is open the door and walk silently through the house with the clients?

No. Rule 535.4(c) states that a person must be licensed as a broker or sales agent to show a broker's listings. An unlicensed assistant cannot perform any activities for a license holder that requires a license, and therefore, cannot "show" a property. The rules do not define what "show" a property means, so the Commission must interpret what that means.

Generally in rule interpretation, one should look at the plain language meaning of the word and then put it into context. The Merriam Webster Dictionary defines to "show" as "to cause or permit to be seen". Taking the plain language meaning then, unlocking a house is "causing or permitting" the home to be seen. So, if an unlicensed assistant opens the house for a buyer, that constitutes showing a house.

Further, reading the rule in the context of the law's purpose of consumer protection, to allow an unlicensed person to open and enter a house for sale would effectively bypass the legislative requirement of requiring fingerprint-based criminal history background checks for all license holders before granting or renewing a real estate license. This requirement is in place to ensure that a person with an inappropriate criminal background will not receive a license that would allow them to open and enter homes for sale.

This is a change from a previous interpretation that was contained in an old article regarding unlicensed assistants. After the criminal background check requirement became law, that interpretation became outdated and was no longer correct.

So, an unlicensed assistant cannot show the property for a license holder; this applies to both homes for sale and for lease.

I am an attorney who is interested in becoming a real estate broker. What are my requirements?

An attorney who wants to become licensed as a broker must first apply and meet requirements to become licensed as a real estate sales agent. After becoming licensed as a sales agent, the attorney can review the education and experience requirements for becoming a real estate broker.

 

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)]

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]

My corporation owns property. Does an employee of the corporation need a license to sell or lease the property?

No. A real estate license is not required for an individual employed by a property owner for the purpose of buying or selling real property on behalf of the owner. [Rule 535.5(d)]

Is a real estate broker's license required to call an auction involving real property?

No. A real estate license is not required for a person who calls an auction of real property, provided the person is licensed as an auctioneer by the Texas Department of Licensing and Regulation. [TRELA §1101.005(4)] However, it is clear from the statute that an auctioneer may not perform any act of a broker or sales agent, such as the preparation of a written agreement for the transaction.

Do I need a license to sell a mobile home or a manufactured home?

The sale of mobile or manufactured homes requires a separate license from the Texas Department of Housing and Community Affairs (TDHCA); however a TREC license holder is not required to be separately licensed by TDHCA if the manufactured or mobile home is attached to real property that is being offered for a sale, exchange, or lease transaction. “Attached” means that the manufactured or mobile home is permanently affixed to the real estate and its separate title document has been surrendered.

Can an out-of-state broker conduct brokerage business from another state by mail, phone, the Internet, or other medium?

When the real property concerned is located wholly or partly in Texas, the broker must obtain a Texas license or associate with a Texas broker.

Do I need a license to lease or rent real property if I am an employee of the property owner?

No. Rule 535.34 provides guidelines to determine if evidence of an employer/employee relationship exists.

Do I need a license to sell a builder's new houses?

No, provided you are an employee of the new home builder (being an independent contractor is not enough). Rule 535.34 provides guidelines to determine if evidence of an employer/employee relationship exists.

License Holder Information

Is the absence of an anti-entrapment cover in a spa deficient and a required reporting item per TREC? 2. Is the presence of a single drain or suction opening in a pool spa deficient and a required reporting item per TREC?

The absence of an anti-entrapment cover in a spa is not a required reporting item. Section 535.233(2)(B)(i), however, requires an inspector to report as deficient the presence of a single blockable main drain.

Is the inspector required to determine the presence of Chinese drywall? Is the inspector required to report the symptoms of Chinese drywall? Is the inspector required to warn of the risk of Chinese drywall?

Pursuant to the general limitations in the Standards of Practice, inspectors are not required to determine the presence of “Chinese drywall” or to report its symptoms or risks. As an example, if corrosion to copper tubing lines or copper wires were found, that could in the opinion of the inspector constitute a deficiency, the inspector is not required to determine or report the cause of the corrosion, such as from “Chinese drywall."

When a license holder files a reinstatement application and answers “yes” to the criminal questions, does TREC require the license holder to resubmit legal documents that have already been submitted in the past?

A “yes” answer to the criminal questions on a reinstatement application requires an applicant to submit a Background History form along with copies of the offense court records and a written explanation. If the required documents were previously submitted in a prior application, the applicant may explain this fact. However, because TREC must dispose of certain documents in accordance with a records retention plan, TREC may no long have those documents and an applicant should be prepared to resubmit documents and the explanation previously submitted.

Is a corroded bathroom fixture that remains operable a defect and required reporting item per TREC?

Purely cosmetic corrosion is not required to be reported as a deficiency.

Inspectors are not required to report the presence of transite pipe as a deficiency.

Do the Standards of Practice require inspectors to comment on the way a gas pipe enters a crawl space?

The Standards of Practice require only that the pipe entry be reported as deficient when the gas piping is concealed in a duct, plenum, or chase. See Section 535.230(d)(4).

If someone’s criminal history has been expunged, can the information still appear on the background check?

The information is not supposed to appear on a background check; however it still may by mistake. If it does, TREC will ask you to provide a copy of the Order of Expungment or Non-disclosure and upon receipt will not consider that offense in determining a person's fitness for licensure.

Is the inspector required to report water heaters that are covered with an insulation blanket as obstructed if they did not remove the blanket?

Yes. The Standards of Practice do not address insulating covers or blankets on water heaters. Inspectors are not required to remove water heater covers to inspect the water heater. However, if the cover is not removed, and its presence interferes with the inspection of any part of the water heater, the inspector must advise the client and report the resulting limitations of the inspection in accordance with the departure provision, Section 535.227(b)(5).

Do the Standards of Practice require inspectors to report copper gas lines as deficient?

Inspectors are not required to determine utility sources or to research codes and ordinances related to this issue. As copper gas line material is only a concern in areas where there may be corrosive additives in the gas supply, the presence of copper gas line material is not required to be reported as deficient.

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

Yes.

What is the estimated time frame to process an Moral Character Determination (MCD) form?

After an MCD request is filed and all required documentation is obtained (either initially or following subsequent requests for additional information), TREC will investigate the information and make a determination. Once TREC makes a determination, TREC has 30 days to notify the person of the determination. Providing a complete form and promptly sending any requested documentation will decrease the processing time of an MCD.

Is removal of the blanket required by TREC for inspection reasons?

No.

The Standards of Practice require inspectors to report as deficient the lack of exhaust ventilators in required areas. What are the required areas for exhaust ventilators?

At a minimum, bathrooms and water closets that that do not have an operative window must be reported as deficient if they lack an exhaust fan that vents to outside air.

Is a water heater covered by an insulation cover deficient and a required reporting item?

No.

While this configuration does not comport with current codes, the Standards of Practice do not require inspectors to inspect to today’s code. A single drain line for a temperature/pressure relief valve and the pan is not required to be reported as a deficiency.

Is a receptacle on a garage ceiling that is not GFCI protected deficient and a required reporting item per TREC?

Pursuant to Section 535.229(b)(3)(A)(ii), a garage receptacle that does not have GFCI protection is deficient and must be reported as such. Note, however, that the Inspector Committee may consider a change to the Standards to create an exception for garage ceiling receptacles serving garage door openers.

Do the Standards of Practice require inspectors to report as deficient a plumbing fixture that does not fully drain, retaining a slight amount (such as a few cups) of residual water?

 A properly constructed and properly functioning bathtub or shower should drain virtually all water (with the exception of minimal amounts that remain due to the surface tension of the water). Amounts beyond this that remain due to indentations or improper slope in the tub or shower (including shelves, ledges, etc.) constitute deficiencies and should be reported as such.

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.

What kind of criminal matters will prevent an applicant from obtaining a real estate license?

To be eligible for a real estate license, applicants must prove to TREC that they have the required honesty, trustworthiness & integrity. [TRELA §1101.354(2)] Each applicant is evaluated individually and TRELA does not contain a list of crimes or number of crimes that would automatically disqualify an applicant from obtaining a license. However, Rule 541.1(a) does list the types of criminal offenses that TREC considers directly relate to the duties and responsibilities of a license holder and tend to demonstrate a person’s inability to represent the interest of another with honesty, trustworthiness and integrity. Rule 535.52(b) also addresses conduct that tends to demonstrate that an applicant does not possess the requisite honesty, trustworthiness or integrity. In addition, pursuant to Chapter 53 of the Texas Occupations Code (www.statutes.legis.state.tx.us/) and Rule 541.1(c), TREC will consider evidence of certain mitigating factors and rehabilitation. It is the responsibility of the applicant to provide that evidence to TREC. [Rule 541.1(d)] Before applying for a license, a person may request TREC to determine whether the person’s moral character complies with the requirements for licensing by filing a Moral Character Determination (MCD). This form is on our website.  

Is a hand rail that is not continuously deficient a required reporting item per TREC?

Section 535.228(h)(1)(B) of the Standards of Practice requires inspectors to report deficiencies in steps, stairways, landings, guardrails, and handrails as deficient. In some circumstances, a break in a handrail would be considered a deficiency; however, this would depend on the specific design of a particular set of stairs (e.g., a landing in the middle of a flight of stairs would not be considered deficient simply because it lacked a continuous handrail).

Do the Standards of Practice require inspectors to report as deficient the lack of a dishwasher power receptacle in an adjacent cabinet (for example, under a kitchen sink)?

No.

Is an inspector required to determine if a light fixture is approved for its location over a bathtub or shower?

The Standards of Practice do not require inspectors to determine if light fixtures are approved for wet locations or to report such installations as a deficiency.

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.

Is a keyed deadbolt on the interior of an exterior egress door deficient and a required reporting item per TREC?

The Standards of Practice do not require double-cylinder deadbolts to be reported as deficient unless such a deadbolt would impede functional emergency escape from a sleeping room.

Is the presence of carpet on an attached garage floor deficient and a required reporting item per TREC?

The presence of carpet in a garage is not required to be reported as a deficiency.

Do I need to go to Texas to be fingerprinted?

No. If you reside outside the service area of MorphoTrust you may request a Hard Card to get fingerprinted. A TREC-specific Hard Card must be obtained from TREC because it contains coding required by the DPS and FBI. MorphoTrust has details on how a Texas Non-resident can complete the fingerprinting process using a Hard Card.  

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

Yes. The sponsoring broker is still responsible for the sales agent's actions, even when the sales agent owns his or her own real estate company. [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. [TRELA §1101.351(c)] If the sales agent’s company engages in business under an assumed name, the broker would need to notify TREC in writing within 30 days after the sales agent or the sponsoring broker starts or stops using the assumed name. [Rule 535.154(e)]

How shall an inspector ascertain with any degree of accuracy if the fire separation between a residence and its attached garage is in place?

The Standards of Practice require inspectors to perform a visual inspection. If it is not visibly apparent whether proper fire separation is present, the inspector must make clear to the client that he or she was not able to ascertain whether proper fire separation was in place.

Is the inspector required to inspect to trade or industry association standards? For example, ASTM, UL or ARMA?

 Inspectors are not required to inspect to trade or industry association standards. However, an inspector who advertises or represents that he or she will inspect to a higher standard could be subject to disciplinary action for failure to do so.

Can all or part of the educational hours be waived in view of a person's business experience?

No. A person's license in another state or experience in real estate brokerage or any related business does not substitute for the educational requirements. [Rule 535.63(a)] To be eligible for a Texas license, an out-of-state license holder must meet all current Texas licensing requirements found on our website. In addition, an applicant may not have to take the national portion of the licensing examination if the applicant maintains a license equivalent to the license being applied for and has already passed a comparable national examination that is accredited by a nationally recognized real estate regulatory association such as ARELLO.

Is the inspector required by the SoP to be knowledgeable of local requirements?

Pursuant to Section 535.227(b)(3)(C)(i), inspectors are not required to determine code compliance, utility sources, or regulatory requirements except as specifically required by the standards.

As a licensed inspector I would like to advertise that my company performs wood destroying insect inspections. Neither I nor anyone in my company is a licensed wood destroying insect inspector, but we recommend or provide one if requested by the client.

 Under inspector advertising Rule 535.221, an inspector may not engage in false or misleading advertising. Including such information in your advertisement could be construed to be misleading in that a consumer may believe that you or members of your company are licensed to inspect for wood-destroying insects. Additionally, such advertising may also be in violation of the Structural Pest Control Service advertising rules.

What is the definition of an “accepted industry practice”?

The definition of “accepted industry practice” is situation-specific and may depend on the context in which the question is being asked. We are unable to provide a general definition.

Does TREC determine which brokerage business names may be registered with the agency if a name is similar to others already registered?

In Texas, business names and "DBA"s are regulated under common law (deceptively similar names may give rise to a private cause of action) and "notice" laws which may provide certain presumptions or tacit protections to names recorded at the local county clerk's office or with the Secretary of State. The agency's sole interest in requiring all brokerage business names to be disclosed to TREC and reflected in the agency's database is to provide a resource to consumers who need to know which individuals and licenses are associated with any particular business name; therefore all names are "searchable" from our agency website. TREC leaves the determination of "similar" names to the Secretary of State's rules or to common law remedies.

I am a licensed professional inspector. I am also a licensed real estate sales agent. May I both inspect the home for and sell to the same person?

No. The Texas Occupations Code, Real Estate Inspectors, Chapter 1102, §1102.303 specifically prohibits an inspector from acting in the capacity of an inspector and real estate agent in the same transaction.

Is the inspector required to inspect to manufacturer requirements, specifications or instructions?

Pursuant to Section 535.227(b)(3)(C)(i) of the Standards of Practice, inspectors are not required to report manufacturer requirements except as specifically required by the Standards. Section 535.227(b)(3)(H) further provides that inspectors are not required to review installation instructions.

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.

Is it true that home inspectors licensed in Texas, cannot inspect plumbing in a home nor report plumbing deficiencies in the TREC inspection report? Can the inspector advertise that he inspects plumbing?

 It depends. Under the Standards of Practice found in Rules 535.227 - 535.233, a home inspector is required to perform a visual check of plumbing fixtures and associated items and report as in need of repair deficiencies in the type and condition of all accessible and visible water supply and waste-water and vent pipes, as well as others listed in Rule 535.231. Please see the Texas State Board of Plumbing Examiners (TSBPE) website to determine whether any of your activities may be in violation of their statutes or rules governing plumbers, such as advertising that you specifically inspect aspects of plumbing systems that may require a license from the TSBPE. Also, please review the advertising rule for inspectors found at Rule 535.221.

I am not currently performing inspections, but I'd like to maintain my license. Is there a way for me to do that without going to the expense of obtaining insurance?

An inspector may request inactive status in writing at any time. An inspector who meets all other renewal requirements but does not show proof of insurance will receive an inactive license (which does not permit the inspector to perform inspections). To become active, a professional inspector would need to send in the Return to Active Status form (or, for apprentice or real estate inspectors, the sponsorship form) along with the applicable fee and the required proof of insurance.

Is a starter course tab that is not sealed material, deficient and a required reporting item per TREC?

We assume you are referring to composition shingle roofing. Section 535.228(c)(3) of the Standards of Practice do require inspectors to report as a deficiency a starter course tab that is not sealed material. However, it is important to keep in mind that fastening of shingles is required to be checked by random sampling, so this condition is only required to be reported as identified though such sampling.

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.

Does TREC require the use of a “contract” for inspections which would outline the responsibilities of the parties to the contract or have a form inspectors can use?

 No. TREC does not require a pre-inspection or employment contract to be signed by the parties to the inspection. Inspectors are free to use or not use a contract. You may want to have a private attorney create a contract for you, or you may check with some of the inspector trade associations to see if they provide templates of pre-inspection contracts.

As an inspector, when do I have to show proof of E&O insurance?

A Certificate of Insurance form (promulgated by TREC), signed by the insurance agent, must be filed with TREC at the time the license is issued and with each renewal of the license. In addition, an inspector must retain sufficient records of professional liability insurance coverage, or any other insurance that provides coverage for violations of Subchapter G of Chapter 1102, to document to the commission continuous coverage for the preceding two year license period.

Are inspectors required to mark and or comment as deficient the absence of tamper resistant receptacles?

No. The Standards of Practice do not address tamper-resistant receptacles.

On my inspection report, the inspector reported certain things in the house as “safety hazards” or “code violations”. Can TREC give me information about what codes the inspector is referring to?

There are many different codes that can figure into the construction of a house, depending on when it was built and local amendments. TREC does not require inspectors to inspect to any of the various building codes and cannot assist you in determining what code provisions were applied in a particular situation. Instead, TREC has established Standards of Practice for inspectors to follow. [Rule 535.227-535.233] However, an inspector is free to inspect to a higher standard (such as to various codes or based on recognized safety hazards), as long as they do so competently. If you have questions about your inspection report, you should ask your inspector for the basis of his statement. You may also wish to contact your local code enforcement authority for more information about relevant codes.

I think my inspector was negligent in performing the inspection. My brother-in-law says I might be able to recover a judgment. Do I have to file a complaint first?

Disciplinary action by TREC is not a prerequisite for pursuing a lawsuit against a license holder. Your rights against the license holder may be subject to a two-year statute of limitations. You should consult with a private attorney to determine whether you have a claim and what deadlines may apply to your claim.

Is the absence of a dirt or drip leg, 1. a deficiency? 2. a required reporting item? 3. unsafe?

No. The SOP does not address the absence of a “trap” in a gas line. Please note that the Texas Real Estate Commission does not have authority to declare conditions as “safe” or “unsafe.”

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)]

It appears that the inspector who inspected my home before my purchase missed major termite infestation. The damage from the termites has cost me thousands of dollars to repair. Shouldn’t the inspector have noted this problem on his report?

In Texas, any person who reports on wood destroying insects in a home must be licensed by the state as a wood destroying insect inspector. These licenses are issued by the Texas Structural Pest Control Service of the Texas Department of Agriculture at www.texasagriculture.gov. Some TREC licensed home inspectors are also licensed wood destroying insect inspectors, and therefore, may inspect a home for termites, etc. if hired for that purpose. However, under the home inspector license issued by TREC, the inspector MAY NOT comment on whether termite infestations exist. They should comment on visible damage regardless of the underlying cause and note it as a deficiency on their report, but may not assess that the damage was specifically caused by wood destroying insects.

If a licensed professional inspector is conducting a commercial inspection, is he or she required to use the inspection report form promulgated by TREC? Do the Standards of Practice apply?

A licensed TREC inspector is not required to use the promulgated form or the Standards of Practice when inspecting property other than one to four family residential. A TREC licensed inspector may perform inspections on commercial property, as long as no other laws prohibit the inspector from doing so (please check with the Texas Board of Professional Engineering to determine when a Professional Engineer license is required). All inspections would be subject to §1102.301 et seq. of the License Act (Subchapter G, Prohibited Acts), as well as 22 TAC § 535.220, Professional Conduct and Ethics.

Is observance of gas shut-off valves and connections with a digital camera placed behind or under appliances considered a reasonable method for discovering deficiencies in inaccessible areas?

Pursuant to Section 535.227(a)(1) of the Standards of Practice, inspectors are not required to move appliances in order to inspect behind them. However, it is often possible to locate gas shut-off valves either behind or near appliances (such as in the cabinet next to the range). If a gas shut-off valve cannot be located, this should be reported. As the question suggests, it is sometimes also possible to use a digital camera to “see” in areas that are not otherwise accessible and there are multiple means of detection of gas leaks in existence, such as through the use of hand held detectors (however, these would be considered specialized tools and are not required to be used in performing inspections).

I recently purchased an older home that was inspected before the purchase. After living in the home a few weeks, the dishwasher started leaking and had to be replaced. Shouldn’t the inspector have told me this unit was about to fail?

Mechanical components like dishwashers can and will break down. A home inspection tells you the condition of the component at the time of the home inspection. The inspector is not required to determine life expectancy of any system or component. [Rule 535.227(b)(3)(C)(i)]

Is olfactory detection of methane/natural gas odorant the only reasonable method of discovering gas leaks when the connectors are not accessible?

 Pursuant to Section 535.227(a)(1) of the Standards of Practice, inspectors are not required to move appliances in order to inspect behind them. However, it is often possible to locate gas shut-off valves either behind or near appliances (such as in the cabinet next to the range). If a gas shut-off valve cannot be located, this should be reported. As the question suggests, it is sometimes also possible to use a digital camera to “see” in areas that are not otherwise accessible and there are multiple means of detection of gas leaks in existence, such as through the use of hand held detectors (however, these would be considered specialized tools and are not required to be used in performing inspections).

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)] The broker will also need to obtain a branch office license for the office location from which the sales agent transacts business. [Rule 535.112]

Do I have any recourse against the inspector for failing to note on his report that there was a gas leak outside the home due to a corroded gas line?

Probably not. TREC licensed inspectors are required to follow Standards of Practice when inspecting property. These may be found on our website about Rules Governing Inspectors. The Standards of Practice do not require an inspector to dig up gas lines in order to determine their condition. They are only required to conduct a visual inspection of the property, and buried gas lines are not required to be inspected.

Is the inspector required to comment on or report as deficient those gas appliance shut-off valves and connectors not visible or accessible without moving the gas appliances?

 Pursuant to Section 535.227(a)(1) of the Standards of Practice, inspectors are not required to move appliances in order to inspect behind them. However, it is often possible to locate gas shut-off valves either behind or near appliances (such as in the cabinet next to the range). If a gas shut-off valve cannot be located, this should be reported. As the question suggests, it is sometimes also possible to use a digital camera to “see” in areas that are not otherwise accessible and there are multiple means of detection of gas leaks in existence, such as through the use of hand held detectors (however, these would be considered specialized tools and are not required to be used in performing inspections).

I wish to file a complaint with TREC regarding a home inspector. What must I do?

TREC cannot accept unsigned email or oral complaints against inspectors. All complaints must be in writing and signed by the person making the complaint. Any person may file a complaint whether or not they are a party to the inspection transaction. The TREC website contains a complaint form that may be downloaded, signed and either faxed, scanned and emailed, or mailed in. You may also submit a signed letter outlining your complaint issues and including copies of relevant documentation (such as repair estimates, receipts, and other inspection reports) or photographs. Please do not send original documents as they will not be returned to you.

Are gas ranges, built-in wall ovens, or clothes dryers considered to be large, heavy, fragile objects which could be damaged or cause damage while being moved, and an undue hazard and risk to the inspector?

Pursuant to Section 535.227(a)(1) of the Standards of Practice, inspectors are not required to move appliances in order to inspect behind them. However, it is often possible to locate gas shut-off valves either behind or near appliances (such as in the cabinet next to the range). If a gas shut-off valve cannot be located, this should be reported. As the question suggests, it is sometimes also possible to use a digital camera to “see” in areas that are not otherwise accessible and there are multiple means of detection of gas leaks in existence, such as through the use of hand held detectors (however, these would be considered specialized tools and are not required to be used in performing inspections).

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)] Notwithstanding 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. If the sales agent was not working from the broker’s main office, the broker would also need to obtain a branch office license for the second office location. [Rule 535.112]

Can I perform mold inspections under my TREC inspector license?

 No. The Texas Department of State Health Services regulates mold inspections. You can contact them at www.dshs.texas.gov/mold for information on the requirements to obtain a license to inspect for mold.

Is the definition of accessible, as applied to gas appliance connections, left to the reasonable judgment of the inspector?

Pursuant to Section 535.227(a)(1) of the Standards of Practice, inspectors are not required to move appliances in order to inspect behind them. However, it is often possible to locate gas shut-off valves either behind or near appliances (such as in the cabinet next to the range). If a gas shut-off valve cannot be located, this should be reported. As the question suggests, it is sometimes also possible to use a digital camera to “see” in areas that are not otherwise accessible and there are multiple means of detection of gas leaks in existence, such as through the use of hand held detectors (however, these would be considered specialized tools and are not required to be used in performing inspections).

As a licensed inspector in the State of Texas, am I supposed to charge a sales tax on the amount of my inspection fee?

TREC only handles the licensing and discipline of real estate inspectors, you would need to contact the state agency in charge of collecting state sales tax which is the Texas Comptroller of Public Accounts. The website for that agency is www.comptroller.texas.gov and their toll free number is 800.252.5555.

Is the presence of a gas shut off valve that requires a tool to turn off deficient?

Question is not clear. Some gas shut off valves are safety or emergency shut off devices and some are not. As the type of valve in question is not defined, no answer can be provided.

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

If a license holder 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 licensed as a real estate sales agent and as a professional home inspector. Can my broker's real estate office offer my inspection services to their clients?

Under Section 1102.303 of the Texas Occupations Code, an inspector may not act in a transaction in the dual capacity of inspector and either (1) broker or sales agent or (2) an undisclosed principal. Therefore, it would violate Section 1102.303 for you to inspect any property your broker has listed or where you were personally involved. Under Rule 535.156, a real estate license holder has a duty to disclose to a client any relationship the license holder has with an inspector performing an inspection on property that is the subject of a transaction involving the license holder. If you were to perform an inspection in connection with a transaction in which your broker was involved, your broker would need to disclose your relationship (as the broker’s sponsored agent), and if you were paid or received compensation or anything of value from anyone in your office in connection with the inspection, you would also need to disclose this fact and obtain the client’s prior permission.

Is the inspector required to be report the mere presence of an FPE panel as deficient? 2. Is the inspector required to warn or advise of the alleged risks if TREC determines the panel is not required to be reported as deficient?

No. The standards of practice do not address this condition.

Is there a limit on the number of branch offices a broker can have?

No. However, if a broker or the broker’s sales agent maintains more than one place of business where either meets the public to transact business, the broker must obtain a branch office license for each location. [Rule 535.112]

If a homeowner wanted to hire a consultant to perform a cursory, major defect visual inspection, including the foundation, roof, plumbing, electrical, and major appliances, would TREC require any written report?

If the inspection you are proposing relates to a purchase or sale transaction, then TREC's Standards of Practice would apply, and a written report would be required. If the inspection you are proposing is not in anticipation of a purchase or sale, then TREC's requirements would not apply, and the parameters of the inspection would be governed by the agreement between the inspector and his or her client. For further information, please see Sections 1102.001 and 1102.002 of the Texas Occupations Code and Rule 535.223.

 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.

May a license holder use an assumed name in business (DBA)?

Yes. TREC, however, must be notified in writing by the broker of the broker’s or sponsored sales agent’s use of an assumed name in business within 30 days of starting or stopping use of the name. [Rule 535.154(e)] Notification can be made to TREC using the Notice of DBA or Assumed Name for Broker's License form (DBA-2) that is available on our website. A licensed entity, such as a corporation or limited liability company is also required to give TREC written notice if the entity engages in business under an assumed name. An “assumed name” is any name other than the name in which the individual or entity is licensed. In addition, a license holder may not use the name of a sales agent in advertising unless the sponsoring broker’s name or assumed name also appears. [Rule 535.154]

What requirements does TREC impose on inspectors/consultants who perform maintenance consultations?

TREC's jurisdiction over real estate inspections is limited to inspections performed for a buyer or seller of real property in connection with a transaction.

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.

Is the absence of combustion air in the bottom of the closet a required reporting deficiency? Is a screen combustion air opening a required reporting deficiency? Is the proximity of the return to the gas fired appliances a required reporting deficiency?

Section 535.230(2)(J)(vi)(I)of the Standards of Practice requires inspectors to report as deficient, in gas HVAC units, deficiencies in combustion, and dilution air. None of the issues you listed would necessarily be required to be reported as deficiencies; this determination depends on several factors, such as the design of the system.

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.

Is a TREC inspector required to report the presence of CSST as a deficiency? Is the TREC inspector required to inform the client of the CSST litigation history?

The mere presence of corrugated stainless steel tubing (CSST) is not, in itself, required to be reported as a deficiency, nor are inspectors required to notify the client of the litigation history or the risks associated with CSST.

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.

The answer to the first question is “No”. The standards of practice are not based on a specific requirement such as those promulgated by model building codes. The requirements for emergency escape and rescue openings in sleeping rooms and the sill heights and sizes of the emergency escape openings in sleeping rooms have varied through the years. The inspector must use “reasonable judgment” in determining if the emergency escape and rescue openings are sufficient for the intended purpose of the openings for the inspector’s client. In response to the 2nd question, an inspector must keep in mind that his role is primarily to document the condition of the home at the time of the inspection per §535.227(b)(1). An inspector is not required to recommend “fixes”.  

The answer to the first question is “No”. The standards of practice are not based on a specific requirement such as those promulgated by model building codes. The requirements for emergency escape and rescue openings in sleeping rooms and the sill heights and sizes of the emergency escape openings in sleeping rooms have varied through the years. The inspector must use “reasonable judgment” in determining if the emergency escape and rescue openings are sufficient for the intended purpose of the openings for the inspector’s client. In response to the 2nd question, an inspector must keep in mind that his role is primarily to document the condition of the home at the time of the inspection per §535.227(b)(1). An inspector is not required to recommend “fixes”. 

What level of precision is expected for the “approximation” of average insulation depth?

Section 535.228(d)(1)(B) requires an inspector to report “approximate average depth of attic insulation.” We are unable to prescribe a certain "level of precision” that would satisfy this requirement; any of the examples you presented would satisfy the requirement to report the depth of insulation, as long as they accurately reflect the conditions.

Lack of weep holes is only required to be reported as a deficiency when there is visible evidence of water penetration or a structural issue that may be related to the lack of weep holes.

1. Is the definition of accessible, as applied to gas appliance connections, left to the reasonable judgment of the inspector? 2. Are gas ranges, built-in wall ovens, or clothes dryers considered to be large, heavy, fragile objects which could be damaged or cause damage while being moved, and an undue hazard and risk to the inspector? 3. Is the inspector required to comment on or report as deficient those gas appliance shut-off valves and connectors not visible or accessible without moving the gas appliances? 4. Is olfactory detection of methane/natural gas odorant the only reasonable method of discovering gas leaks when the connectors are not accessible? 5. Is observance of gas shut-off valves and connections with a digital camera placed behind or under appliances considered a reasonable method for discovering deficiencies in inaccessible areas?

Pursuant to Section 535.227(a)(1) of the Standards of Practice, inspectors are not required to move appliances in order to inspect behind them. However, it is often possible to locate gas shut-off valves either behind or near appliances (such as in the cabinet next to the range). If a gas shut-off valve cannot be located, this should be reported. As the question suggests, it is sometimes also possible to use a digital camera to “see” in areas that are not otherwise accessible and there are multiple means of detection of gas leaks in existence, such as through the use of hand held detectors (however, these would be considered specialized tools and are not required to be used in performing inspections).

Can a licensed sales agent own his or her own real estate company?

Yes, a licensed sales agent can own his or her own real estate company. The sales agent must, however, have a sponsoring broker through whom all transactions must be handled and who will be responsible for the 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 remains ultimately 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. If a sales agent engages in business under an assumed name that includes the sales agent’s own name, the sales agent’s sponsoring broker's name or assumed name must also be used. If a sales agent is going to engage in real estate brokerage under an assumed name, the sales agent’s broker would need to notify TREC in writing within 30 days after the sales agent or the sales agent’s sponsoring broker starts or stops using the name. [Rule 535.154(c) and (e)]

Is wrinkled loose carpet a defect and required reporting item per TREC? 2. Presuming an upstairs floor or the ceiling below does not exhibit obvious evidence of failure, is a squeaky floor a defect and required reporting item per TREC?

Section 535.228(e)(3)(A) of the Standards of Practice states that inspectors are not required to report cosmetic damage or the condition of floor, wall, or ceiling coverings. Neither loose carpet nor floor squeaks, without further evidence of deficient conditions, is required to be reported as deficient.

The lack of a damper clamp is required to be reported as a deficiency when a gas appliance or artificial gas logs (but not merely a log lighter pipe) is present. The Standards of Practice do not establish a minimum distance that the clamp should hold the damper open

What are inspectors required to report regarding gas supply lines?

Section 535.231(a)(2)(E)(ix) requires inspectors to report deficiencies in the condition of the gas distribution system. Section 535.231(a)(3)(D)(iii) does not require inspectors to inspect inaccessible gas supply system components for leaks. Section 535.231(a)(3)(A) states that inspectors are not required to operate any main, branch, or shut-off valves.

Inspectors are not required to inspect anything buried, hidden, latent, or concealed. Accordingly, the requirement that inspectors report deficiencies in installed gutter and downspout systems applies only to visible deficiencies in above-ground gutter and downspout systems and not to underground drain piping, cisterns, or other buried components. Furthermore, there is no requirement that inspectors test gutters or downspouts (by pouring water into them or through other means).

Is the inspector required to inspect a water metering device to determine if a leak may exist? Is the inspector required to perform any inspection of the meter?

Pursuant to Section 535.227(b)(3)(A)(vi) of the Standards of Practice, an inspector is not required to inspect or test metering devices.

Online Services

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 License by an Individual along with requested documents and the applicable fee.

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

Request inactive status online at no cost by following the instructions below:

  • Log into our Online Services
  • Choose to Manage my Sponsorship (Sales)
  • Proceed to “Terminate” the sponsoring broker of record.

If you submit the Application for Inactive Broker or Sales Agent Status form by mail, you must include the $20.00 paper processing.

How do I change my business physical address?

Go online to change your business physical address at no cost.  If you submit the change of address form by mail, you must include the paper processing fee.

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.

Other

If a buyer wishes to have a hydrostatic test performed on a home, what is required for a seller to consent to such a test?

Both TREC forms 20-13 and 30-12, The One to Four Family Residential Contract (Resale) and Residential Condominium Contract (Resale), state, “Any hydrostatic testing must be separately authorized by Seller in writing.”

Therefore, there must be a separately signed document of authorization by the seller for a hydrostatic test. Thus, for example, any authorization language in the special provisions of the standard Resale contract is not separate consent by a seller.

Is hydrostatic testing a mandatory part of the inspection of a resale of real property?

No, a hydrostatic test is not mandatory in the inspection of a property.

Can a licensed inspector perform a hydrostatic test?

No, only a licensed plumber may perform a hydrostatic test on a system within a home.

What is a hydrostatic test?

A hydrostatic test is a way in which pipeline, plumbing, gas cylinders, boilers, and fuel tanks can be tested for strength and leaks. The testing pressure is always higher than the normal operating pressure of the system.

How do I change my business physical address?

Go online to change your business physical address at no cost.  If you submit the change of address form by mail, you must include the paper processing fee.

Property Management

Does a property manager have to be licensed?

It depends on what the property manager is doing for the property owner. If the duties include showing or leasing the property for the owner for which the manager gets paid, a license is required. A license is also required for any person who controls the acceptance or deposit of rent from a resident of a single-family residential real property unit. See TRELA §1101.002(1)(A)(x) and Rule 535.4(g)

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)]

When a broker holds earnest money or any money from property management activities in a trust account, how often is a broker required to account for that money?

The broker must provide a monthly accounting of trust money if there has been any activity in the account. [Rule 535.146(c)(6) (effective January 1, 2016)]

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]

When a broker holds money from property management activities in a trust account, how often is a broker required to account for that money?

The broker must provide a monthly accounting of trust money if there has been any activity in the account. See [Rule 535.146(c)(6)]

I signed a Property Management Agreement and do not understand some of the terms. Can you explain them to me?

No. A Property Management Agreement is a private contract and TREC is unable to advise you in private contractual matters. You should discuss the terms of the agreement with a private attorney.

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.

I will be holding the security deposit for an owner whose property I am managing. In what type of account should a security deposit be placed?

You are prohibited from commingling this money with your own money. [TRELA §1101.652(b)(10)] The money should be deposited in a trust or an escrow account where other money from the managed property or properties is kept. A security deposit can also be deposited in an account separate from the trust or escrow account, but this is not a requirement. [Rule 535.146(c)(2)] The Commission can take disciplinary action against you if you fail within a reasonable time to properly account for or remit money that you receive on behalf of another person. [TRELA §1101.652(b)(9)] Further, paying an operating expense or making a withdrawal from a broker’s trust account for any purpose other than proper disbursement of trust money is prima facie evidence of commingling. [Rule 535.146(b)(5)]

I have a property management company and engage in leasing activity. May I have some of my unlicensed employees solicit business for me?

No. A rental agent who solicits a prospect by phone must be licensed.

Renewing a License

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)(6) 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 $1,000; maximum is $5,000 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.

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.

I want to renew my 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.

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 in Legal Update I and 4 hours in Legal Update II, and 10 hours in CE elective 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 during their current license period or a delegated supervisor of one or more license holders for a period of six months or more during the supervisor’s current license period must complete the six-hour Broker Responsibility Course as part of the 18-hour CE requirement.

 

Jurisdiction

I bought a house from a builder and the builder gave me a 12-month warranty. I have given the builder a list of things that need to be repaired but the repairs have not been made and my warranty is about to expire. How can I make the builder do the repair

TREC does not have jurisdiction over builders. You may wish to file a complaint with the Better Business Bureau or the Texas Attorney General’s Office, Consumer Protection Division. You may also wish to consult with a private attorney before any possible warranties or other legal remedies expire.

I am a tenant and having problems with my landlord getting him to make repairs. Also, I sent the landlord the rent on time but the landlord is still threatening me with eviction and late charges. What are my rights as a tenant?

Landlord and Tenant disputes are not within our jurisdiction. You may want to call one of the tenant assistance associations for help or contact a private attorney. The Real Estate Center at Texas A & M has a Landlord-Tenant Guide that you can view for free at https://assets.recenter.tamu.edu/Documents/Articles/866.pdf

I have a license in another state. Can I be exempt from taking the National portion of the exam?

You can be exempt from taking the National portion of the exam if you hold an active license in a state that participates in the National exam accreditation with ARELLO.  Submit a license history from the state in which you are licensed when you file your application so we can determine if you are exempt.

 

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

If a license holder 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 having problems with a manufactured home that I purchased recently and wish to file a complaint against the manufacturer and broker/dealer.

TREC does not have jurisdiction over manufacturers or dealers of manufactured homes. You may file a complaint with the Texas Department of Housing and Community Affairs. TREC only has jurisdiction in situations where the manufactured home is attached to the real estate when you purchased it and your complaint is against a real estate license holder that was involved in that purchase.

I discovered that a real estate license holder is also a licensed mortgage broker. Is this legal? With what agency should I file a complaint?

TRELA and the Rules do not prohibit an individual from having other licenses. If the individual is acting in both capacities, he or she should have informed you in writing and obtained your consent before receiving any compensation from another party involved in the transaction. If the individual was acting in both capacities, you could file a complaint with both TREC and Texas Department of Savings and Mortgage Lending. If the individual was only acting in one capacity, you should file the complaint with the agency that regulates that function

When I purchased my house there were repairs made before closing that I requested. After moving into the house, I discovered that the repairs were not performed properly. The seller gave me the receipts of the licensed repair people who performed the repairs. I asked them to come correct the work but they refused. What can I do?

TREC does not have jurisdiction over licensed repair providers. You may want to check with Texas Department of Licensing and Regulation to see if they regulate the providers. You may also want to consult with a private attorney regarding your legal rights as a homeowner.

I am having a dispute with my Homeowner Association (HOA) regarding violating neighborhood restrictions.

TREC does not have jurisdiction over Homeowner Associations or Association Management Companies. You may wish to consult with a private attorney regarding your legal rights as a homeowner. See also Chapter 209, Property Code.

I just bought a house and noticed that the title company I used made a mistake at closing.

TREC does not have jurisdiction over title companies. If you wish to file a complaint against a title company in Texas, you need to contact the Texas Department of Insurance.

I passed one section of the exam and my application has expired. Will I need to take both sections of the exam when I reapply?

Exam results for each section of the exam are valid for one year from the passing date. If you reapply less than one year from passing one section of the exam, you will not need to retake that section. Both the State and National sections of the exam must be passed before the application expiration date.

 

Can a license holder rebate a portion of the license holder’s commission to a church or other non-profit organization of the license holder’s choosing or one of the principals’ choosing?

 Yes. This is a donation and not a rebate.

I just bought a house and noticed that the title company I used made a mistake at closing.

TREC does not have jurisdiction over title companies. If you wish to file a complaint against a title company in Texas, you need to contact the Texas Department of Insurance.

I will be holding the security deposit for an owner whose property I am managing. In what type of account should a security deposit be placed?

You are prohibited from commingling this money with your own money. [TRELA §1101.652(b)(10)] The money should be deposited in a trust or an escrow account where other money from the managed property or properties is kept. A security deposit can also be deposited in an account separate from the trust or escrow account, but this is not a requirement. [Rule 535.146(c)(2)] The Commission can take disciplinary action against you if you fail within a reasonable time to properly account for or remit money that you receive on behalf of another person. [TRELA §1101.652(b)(9)] Further, paying an operating expense or making a withdrawal from a broker’s trust account for any purpose other than proper disbursement of trust money is prima facie evidence of commingling. [Rule 535.146(b)(5)]

I have a license in another state. Can I be exempt from taking the National portion of the exam?

You can be exempt from taking the National portion of the exam if you hold an active license in a state that participates in the National exam accreditation with ARELLO.  Submit a license history from the state in which you are licensed when you file your application so we can determine if you are exempt.

 

Can a license holder rebate a portion of his commission to a seller? What about a buyer?

Yes. It is not a violation of TRELA or the Rules for a license holder to rebate a portion of the license holder’s commission to a party to a real estate transaction. If the rebate is to a party the license holder does not represent, the license holder must obtain the consent of the party represented by the license holder before making the payment. [Rule 535.147(d)]

I bought a house from Sam Seller through broker Bob Brown three months ago. I did not get it inspected since the seller and the broker said everything was in good shape. Yesterday I discovered a big problem with the house that was never disclosed to me. W

If you feel the broker knew about the problem with the house and didn't tell you about it, you can file a written complaint with TREC. A license holder who makes a knowing misrepresentation or fails to disclose a latent defect can be disciplined by the Commission. [TRELA §1101.652(b)(3)] Should you want to take legal action against the seller and/or the broker for damages, you will need to consult with a private attorney

I have a property management company and engage in leasing activity. May I have some of my unlicensed employees solicit business for me?

No. A rental agent who solicits a prospect by phone must be licensed.

When a broker holds earnest money or any money from property management activities in a trust account, how often is a broker required to account for that money?

The broker must provide a monthly accounting of trust money if there has been any activity in the account. [Rule 535.146(c)(6) (effective January 1, 2016)]

Does a property manager have to be licensed?

It depends on what the property manager is doing for the property owner. If the duties include showing or leasing the property for the owner for which the manager gets paid, a license is required. A license is also required for any person who controls the acceptance or deposit of rent from a resident of a single-family residential real property unit. See TRELA §1101.002(1)(A)(x) and Rule 535.4(g)

I am an attorney who is interested in becoming a real estate broker. What are my requirements?

An attorney who wants to become licensed as a broker must first apply and meet requirements to become licensed as a real estate sales agent. After becoming licensed as a sales agent, the attorney can review the education and experience requirements for becoming a real estate broker.

 

My client does not want to accept the property “as is” and wants to wait until after the inspection to list specific repairs that he wants the seller to fix. Can I just leave both boxes in Paragraph 7D of the One to Four Family Residential Contract (Resale) blank or can I check 7D 2 and write in “repairs to be listed following inspection”?

Neither option is permissible. Leaving both boxes in blank in Paragraph 7D or altering the contract terms by adding language that does not enumerate specific repairs in Paragraph 7D2 could be considered to be acting negligently or incompetently if a complaint were to be filed in connection with the transaction [TRELA §1101.652(b)(1)]. The buyer should only choose Paragraph 7D2 if there are specific repairs known at the time of the contract that the buyer wants the seller to pay for. Otherwise, the buyer should check Paragraph 7D1. Most buyers in your client’s situation will then also elect to pay an option fee pursuant to Paragraph 23 in exchange for the right to terminate for any reason within a negotiated number of days. During this option period, an inspection can be performed and if specific repairs are identified, the parties can negotiate to amend the contract to address these items, or the buyer can terminate the contract.

Does TREC require a trust or escrow record to be maintained for a specific period of time?

Yes, for four years from the date a trust or escrow document is received or created by the broker. [Rule 535.146(e)]

Does TREC have a promulgated buyer representation agreement?

 No. A buyer representation agreement is a private contract between a real estate broker and a buyer and is not promulgated or regulated by TREC. You should consult with a private attorney. The Texas Association of Realtors (TAR) provides certain forms to its members. If you are a member, TAR may have a form that fits your needs.

What kind of criminal matters will prevent an applicant from obtaining a real estate license?

To be eligible for a real estate license, applicants must prove to TREC that they have the required honesty, trustworthiness & integrity. [TRELA §1101.354(2)] Each applicant is evaluated individually and TRELA does not contain a list of crimes or number of crimes that would automatically disqualify an applicant from obtaining a license. However, Rule 541.1(a) does list the types of criminal offenses that TREC considers directly relate to the duties and responsibilities of a license holder and tend to demonstrate a person’s inability to represent the interest of another with honesty, trustworthiness and integrity. Rule 535.52(b) also addresses conduct that tends to demonstrate that an applicant does not possess the requisite honesty, trustworthiness or integrity. In addition, pursuant to Chapter 53 of the Texas Occupations Code (www.statutes.legis.state.tx.us/) and Rule 541.1(c), TREC will consider evidence of certain mitigating factors and rehabilitation. It is the responsibility of the applicant to provide that evidence to TREC. [Rule 541.1(d)] Before applying for a license, a person may request TREC to determine whether the person’s moral character complies with the requirements for licensing by filing a Moral Character Determination (MCD). This form is on our website.  

Are locators subject to the agency disclosure requirements of The Real Estate License Act?

It depends. Unless an exception applies, a locator representing either party must disclose that representation on the first contact with the other party. If the transaction concerns a residential lease of less than one year and a sale is not being considered, the locator is not required to provide the tenant with a copy of the statutory information about agency (Information about Brokerage Services). [TRELA §1101.558(c)]

My broker did not fill out our contract properly and the effective date is blank. Does this mean that the contract is invalid or void?

The Commission can not make a determination about the validity of your contract. You should consult a private attorney regarding this issue. A license holder’s failure to properly complete a TREC promulgated form completely and accurately could be considered negligence and subject the license holder to disciplinary action. [TRELA §1101.652(b)(1)]

As a broker, am I the only person who can sign a check written on my trust account?

No. A broker may authorize another license holder to withdraw or transfer money from a trust account. The broker, however, remains responsible and accountable for the trust account and for the proper handling of trust money received by the broker. [Rules 535.2(c), 535.146(c)(7).]

I bought a house from a builder and the builder gave me a 12-month warranty. I have given the builder a list of things that need to be repaired but the repairs have not been made and my warranty is about to expire. How can I make the builder do the repair

TREC does not have jurisdiction over builders. You may wish to file a complaint with the Better Business Bureau or the Texas Attorney General’s Office, Consumer Protection Division. You may also wish to consult with a private attorney before any possible warranties or other legal remedies expire.

Is it permitted to submit an invoice to an apartment complex falsely claiming that the locator has procured a tenant for the apartment complex?

No. The Commission can issue an order revoking the license of a locator found to have engaged in this practice. [TRELA §1101.652(b)(24)]

What should I do if TREC doesn’t promulgate a form that I need?

The Texas Association of Realtors (TAR) provides certain forms to its members. However, if you are not a member of TAR, you should have an attorney draft the necessary documents. It is a violation of the law for a license holder to draft an instrument that transfers or otherwise affects an interest in real property. [TRELA §1101.654]

I am a tenant and having problems with my landlord getting him to make repairs. Also, I sent the landlord the rent on time but the landlord is still threatening me with eviction and late charges. What are my rights as a tenant?

Landlord and Tenant disputes are not within our jurisdiction. You may want to call one of the tenant assistance associations for help or contact a private attorney. The Real Estate Center at Texas A & M has a Landlord-Tenant Guide that you can view for free at https://assets.recenter.tamu.edu/Documents/Articles/866.pdf

Is a locator permitted to rebate a portion of the locator's fee to the tenant?

Yes, as with all license holders, this can only be done with the prior consent of the person the locator represents. [Rule 535.147(d)] In addition, if advertising a rebate to the tenant of a portion of the license holder’s commission, the ad must disclose that the rebate is subject to consent of the party the license holder represents. [Rule 535.154(m)]

Can a non-license holder use the promulgated contract forms?

Yes. The contract forms are available for public use. A TREC contract form, however, is intended for use primarily by licensed real estate brokers or sales agents who are trained in their correct use. A mistake in the use of a form may result in financial loss or an unenforceable contract. A person using a TREC form assumes all risks associated with its use.

Must the permission of the owner authorizing the agent to offer the unit for rent be in writing?

No, the permission may be in writing or oral. If the permission is given over the telephone, for example, the license holder should document who gave the permission and how it was given in case that information is later requested by TREC in connection with a complaint.

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)(6) 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 $1,000; maximum is $5,000 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.

Would it be permissible to use a promulgated contract form as a contract for deed or contract of sale by making appropriate changes in Paragraph 11?

No. None of the forms promulgated by TREC are intended for use as a contract for deed. An attorney will need to prepare an appropriate form.

Does a trust account have to have a special name?

Yes. If a broker maintains a trust account, it must be cleared identified as a trust account. [Rule 535.146(c)(1)]

If a buyer wishes to have a hydrostatic test performed on a home, what is required for a seller to consent to such a test?

Both TREC forms 20-13 and 30-12, The One to Four Family Residential Contract (Resale) and Residential Condominium Contract (Resale), state, “Any hydrostatic testing must be separately authorized by Seller in writing.”

Therefore, there must be a separately signed document of authorization by the seller for a hydrostatic test. Thus, for example, any authorization language in the special provisions of the standard Resale contract is not separate consent by a seller.

Do I need a license to sell a builder's new houses?

No, provided you are an employee of the new home builder (being an independent contractor is not enough). Rule 535.34 provides guidelines to determine if evidence of an employer/employee relationship exists.

Does TREC determine which brokerage business names may be registered with the agency if a name is similar to others already registered?

In Texas, business names and "DBA"s are regulated under common law (deceptively similar names may give rise to a private cause of action) and "notice" laws which may provide certain presumptions or tacit protections to names recorded at the local county clerk's office or with the Secretary of State. The agency's sole interest in requiring all brokerage business names to be disclosed to TREC and reflected in the agency's database is to provide a resource to consumers who need to know which individuals and licenses are associated with any particular business name; therefore all names are "searchable" from our agency website. TREC leaves the determination of "similar" names to the Secretary of State's rules or to common law remedies.

Does a license holder have to use TREC's contract forms? Does TREC ever discipline a license holder who fails to use an adopted form?

Yes and yes. A license holder is required to use contract forms adopted by TREC. [TRELA §1101.155, Rule 537.11, etc.] Some exceptions for when a license holder does not have to use a form are in Rule 537.11(a). A license holder should also be familiar with Rules 537.11(f)-(g). Those rules prohibit a license holder from adding anything except factual matters or business details to a form adopted by TREC for mandatory use. Contract forms adopted for mandatory use are on our website.

Can a broker share a commission or other compensation with an attorney when the attorney is a principal in the transaction?

It is not a violation of TRELA or the Rules for a license holder to rebate a portion of their compensation to a party in the transaction. If the rebate is to a party the license holder does not represent, the license holder must obtain the consent of the party the license holder represents. This must be done before making the payment. [Rule 535.147(d)]. If the attorney is not a principal in the transaction, then the attorney may not receive a share of the compensation. [TRELA §1101.652(b)(11).]

Is hydrostatic testing a mandatory part of the inspection of a resale of real property?

No, a hydrostatic test is not mandatory in the inspection of a property.

Does a lease for a term of longer than one year and a contract for the sale of real estate need to be in writing to be enforceable?

Yes. The Statute of Frauds, as defined by Chapter 26 of the Business and Commerce Code, requires that certain agreements be reduced to writing to be enforceable. However, you should consult with a private attorney for advice on this matter.

My wife and I signed an offer to buy a house over the weekend. Now we have changed our minds and don't want to buy the house after all. Can we get out of the deal?

If the seller has accepted your offer, you may have a binding contract. There is no automatic three-day or 72 hour cooling off period for you to change your mind like in some other consumer contract situations. Any rights that you have to terminate the contract will be contained in the contract. For example, you may have paid a fee to obtain an “option” period in the contract. You should consult with a private attorney for advice regarding termination of your contract.

Is TREC interested in compliance by residential rental locators?

Yes. The Commission members have instructed the staff to enforce the law vigorously. Unlicensed individuals who conduct residential rental location activity are subject to administrative penalties and criminal charges. [TRELA §1101.757 & §1101.759]

Must the earnest money check be deposited to create a binding contract?

The formation of a real estate contract requires "consideration" for the contract to be binding. In general, the buyer's promise to buy and seller's promise to sell is consideration. Although the TREC contract forms include a provision for the deposit of earnest money, if the buyer fails to deposit the earnest money the buyer is considered in default of the contract, and the other party may then exercise the remedies under paragraph 15 of the contract. However, TREC is unable to make a determination as to whether your contract is binding. You should discuss the validity of your contract with a private attorney. Once a binding agreement has been created, a license holder handling the check must deposit the earnest money in a timely fashion in accordance with the contract terms. In addition, a license holder’s failure to deposit the earnest money within a reasonable time is a violation of §1101.652(b)(30) of TRELA.

What can unlicensed office personnel or an unlicensed assistant do?

An unlicensed person may act as a host or hostess at a property being offered for sale by the broker. The unlicensed person, however, may not engage in any activity for which a license is required or hold themselves out as license holder. [Rule 535.5(h)] An unlicensed person may also perform secretarial, clerical, or administrative tasks. [Rule 535.5(g)] You should also review our website regarding “Information for Brokers and Salespersons Regarding Use of Unlicensed Assistants in Real Estate Transactions for further examples of what can and cannot be done.

Does TREC have an improved commercial earnest money contract form?

No. You must use a form drafted by an attorney or a form supplied by either the buyer or seller. [Rule 537.11(a)] If you are a member of The Texas Association of Realtors (TAR), you may use a form prepared by TAR attorneys.

Can all or part of the educational hours be waived in view of a person's business experience?

No. A person's license in another state or experience in real estate brokerage or any related business does not substitute for the educational requirements. [Rule 535.63(a)] To be eligible for a Texas license, an out-of-state license holder must meet all current Texas licensing requirements found on our website. In addition, an applicant may not have to take the national portion of the licensing examination if the applicant maintains a license equivalent to the license being applied for and has already passed a comparable national examination that is accredited by a nationally recognized real estate regulatory association such as ARELLO.

What are the penalties for unlicensed brokerage activity?

Practicing real estate without an active license is a criminal offense, specifically, a Class A misdemeanor punishable by confinement of up to one year in a county jail and a fine of up to $4,000.00. [TRELA §1101.756] TREC can also pursue administrative penalties not to exceed $5,000 for each violation. Each day a violation continues can be considered a separate violation for imposition of the administrative penalties. [§1101.702 of the License Act] The Commission may also issue a “cease and desist” order. [§1101.759 of the License Act] Finally, as a State Agency represented in civil court proceedings, TREC can obtain injunctive relief, including court costs and attorneys fees incurred in obtaining such relief. [TRELA §1101.751]

What is a hydrostatic test?

A hydrostatic test is a way in which pipeline, plumbing, gas cylinders, boilers, and fuel tanks can be tested for strength and leaks. The testing pressure is always higher than the normal operating pressure of the system.

Can TREC provide legal advice?

TREC attorneys can provide general advice about the applicability or interpretation of the provisions of The Real Estate License Act and TREC Rules but cannot, with few exceptions, give advice pertaining to specific matters or transactions, other laws, or civil matters.

Does Texas have reciprocity with any other states regarding a real estate license?

No, but a Texas broker may share a commission with a foreign license holder so long as the foreign license holder does not engage in an activity requiring a license in Texas. [TRELA §1101.651(a)] In addition, a person actively licensed as a real estate broker or sales agent in another state may be entitled to have certain experience and educational requirements waived. [TRELA §1101.357 and §1101.362, Rule 535.62(b)]

How can an out-of-state broker sell land in Texas?

The foreign broker must either associate with a Texas broker who handles all the negotiations and other acts that require a license in Texas, including showing the broker’s listings or soliciting listing of real property, or obtain a Texas real estate license. No license is necessary to sell land in Texas as long as the broker does not perform any acts in Texas that require a license.

I am the listing broker. An attorney has presented an offer from a buyer that the attorney represents and wants me to share my commission. Can I do this?

No. A licensed broker is prohibited from sharing compensation with anyone who acts in the capacity of a broker but is not licensed as a broker [TRELA §1101.651(a) and §1101.652(b)(11)]. In cases such as this, the listing broker still needs to present the offer to the seller. The listing broker should inform the seller that the broker is prohibited from sharing compensation with the attorney. Assuming the attorney is licensed in Texas, the seller and buyer may work something out between themselves regarding any compensation to be paid to the Texas attorney. The listing broker can agree to reduce the commission if requested by the seller without violating the prohibition on splitting. For further detail, see the article “Can brokers share their fees with an attorney?” on our website.

Can a license holder be disciplined for paying a commission or a fee to or dividing a commission or fee with an unlicensed person for services as a real estate agent?

Yes. The Commission may suspend or revoke or take other disciplinary action against a license holder who pays any portion of a commission or fee to anyone other than a licensed Texas broker or a broker licensed in another state. [TRELA §1101.652(b)(11)]

We are selling our house and the buyer never paid the option fee. What happens now?

Typically, the buyer's agent collects the option fee upon final acceptance of the terms of the contract and delivers the option fee check to the seller's agent. Paragraph 23 in the 1-4 Family Residential Contract provides "If no dollar amount is stated as the Option Fee or if the Buyer fails to pay the Option Fee to Seller within the time prescribed, this paragraph will not be a part of this contract and Buyer shall not have the unrestricted right to terminate this contract." Under the terms of the 1-4 Family Residential Contract, the buyer (or buyer’s agent) has three days to deliver the option fee. If the fee is not paid and the parties need help interpreting this provision, they will need to consult with a private attorney.

Does a link to the IABS Form in my email signature satisfy the representation disclosure required by TRELA §1101.558?

No. Rule 531.20(d) states that providing a link to the IABS Form in a footnote or signature block of an email is insufficient. The IABS Form can be provided by:
(1) personal delivery;
(2) first class mail or overnight common carrier delivery service; 
(3) in the body of an email; or
(4) as an attachment to an email or as a link in the body of an email so long as there is a specific reference to the IABS Form in the body of the email.

Can I use a power of attorney to engage in a real estate brokerage transaction without a real estate license?

Yes, but with limitations. [Rule 535.32]. The person may not use the power of attorney to engage in more than three real estate transactions per calendar year. [TRELA §1101.005(2) and Rule 535.32]

I went on a tour to inspect unimproved lots. The guide was not licensed, but she showed us the lots and told us about possible developments on the land. Is this legal?

It depends. If the guide is an employee of the owner of the lots, she would not be required to be licensed. [Rule 535.5(d).] Otherwise, the guide needs to be licensed in accordance with §1101.002(1) of TRELA. For example, if the owner is a parent corporation, an employee of a subsidiary corporation selling for the parent corporation would need to have a license. [Rule 535.4(i).]

I’m buying a house. Do I have to have pay for an option period to be able to buy the house?

No. The termination option is a negotiable contract term. However, if you pay the seller an agreed option fee, you have the unrestricted right to terminate the contract for any reason if you give written notice to the seller during the option period. A buyer can use the option period to perform an inspection of the property and negotiate an amendment to the contract for any necessary repairs as a result of the inspection.

Do I need a license to act as an on-site manager of an apartment complex?

No, but this exemption only applies to apartments; managers of condominiums or town homes need to be licensed. Note, also, that the "on-site" requirement means that you have an office at the apartment complex, not that the manager has to live there.

Is a licensed attorney required to hold a real estate license to act as a broker?

Generally no. As long as the attorney is licensed in Texas, they are exempt from the licensure requirements. [TRELA §1101.005(1)] The Texas licensed attorney can do everything a broker can do except sponsor sales agents, share compensation with an agent, or act as the designated broker for a business entity licensed by TREC. [TRELA §1101.355(b)]

Do I need a real estate license to sell a campground membership?

No. Campground membership sales are regulated by the Texas Secretary of State’s Office, Statutory Documents Section, under the provisions of the Texas Camping Membership Resort Act [Chapter 222, Texas Property Code] and you should check with that agency regarding its requirements.

I am a sales agent and am not sure how to fill out the listing agreement form. Can you help me?

No. TREC is unable to advise you on how to fill out a private contract form. You should direct your questions to your sponsoring broker. If your sponsoring broker is unable to help you with your questions about a Texas Association of Realtors (TAR) listing agreement form, you can direct your questions to TAR.  

Does TREC mediate complaint matters between a complainant and a license holder?

Once a complaint is opened, if the Mediator with the Commission’s Standards & Enforcement Services determines the case is a good candidate for alternative dispute resolution, the Mediator will offer a complainant and license holder the opportunity to participate in informal telephone dispute resolution. The Mediator, acting as a facilitator between the complainant and license holder, assists the parties in trying to reach an agreed settlement. If the parties reach an agreement, the Commission closes the complaint without further investigation. The agreed settlement may or may not include some form of disciplinary action against the license holder. If the process does not result in an agreed settlement, the case proceeds through the normal complaint process. The dispute resolution process is kept confidential from each party and from other Commission staff.

Can TREC obtain reimbursement of commissions paid by buyers and sellers to brokers and sales agents for compensation in real estate transactions?

No, unless a refund is ordered by TREC in conjunction with an agreement resulting from an informal settlement conference or an administrative order. However, the amount ordered may not exceed the amount the consumer actually paid to the license holder for the services subject to TREC regulation and may not require payment of other damages or estimate harm. [TRELA §1101.659] In addition, TREC has no jurisdiction or authority to enforce collection of such amounts.

I signed a listing agreement with a broker and don’t understand some of the terms in the agreement. Can you explain the terms to me?

No. TREC is unable to advise you in private contractual matters. You should discuss the terms of the listing agreement with a private attorney.

Can I find out online if there have been any disciplinary actions against an agent?

Yes. At the top of TREC’s homepage go to “Search Licensee Info / Education” and type in the license holder’s name and click. Then click on the license holder’s name from the list that you are given. Under the result box that you receive will be a line entitled “Disciplinary Search”. Click on this to see what disciplinary actions have been taken. If no “Disciplinary Search” line appears under your name search result, then there have not been any disciplinary actions taken against that license holder

Does TREC mediate contested complaint matters?

TREC offers an informal settlement conference for any contested matter involving a license holder or registrant or certificate holder. The process is voluntary and must include the license holder, registrant or certificate holder, at least one public member of the Commission, and two staff members of TREC. While the complainant may be present at the conference, they are not a party to the proceeding. At the conclusion of the informal conference, the Commission member or TREC staff may propose an informal settlement. The license holder, registrant or certificate holder may accept or reject the settlement offer. A final agreed order based on the settlement recommendation would conclude a contested case matter. If an agreement is not reached, the case is referred to the Director of Standards & Enforcement for appropriate action. Also, a party to a contested matter filed with the State Office of Administrative Hearings (SOAH) may, before a hearing, request that the matter first be heard by a SOAH mediator.

My agent moved to another broker’s office and I want them to continue to handle my listing. Can I switch my listing to the new broker’s office?

No. Listing agreements are private contracts between the property owner and the real estate broker, not the sales agent. You can ask the original broker to release you from the agreement or contact a private attorney to advise you if you can terminate the listing agreement in some other fashion. TREC does not have the authority to require a broker to release you from a listing agreement.

Is a real estate broker's license required to call an auction involving real property?

No. A real estate license is not required for a person who calls an auction of real property, provided the person is licensed as an auctioneer by the Texas Department of Licensing and Regulation. [TRELA §1101.005(4)] However, it is clear from the statute that an auctioneer may not perform any act of a broker or sales agent, such as the preparation of a written agreement for the transaction.

My corporation owns property. Does an employee of the corporation need a license to sell or lease the property?

No. A real estate license is not required for an individual employed by a property owner for the purpose of buying or selling real property on behalf of the owner. [Rule 535.5(d)]

I am changing sponsoring brokers. Do I get to take my listings with me?

No. Listing agreements are private contracts between the property owner and the real estate broker, not the sales agent.

Do I need a license to sell or lease mineral or mining interests?

No.

I’ve been harmed by a license holder. Can TREC recover damages for me?

No, TREC does not have the authority to require a license holder to pay another person for monetary damages. Recovery of these losses is a civil action and should be discussed with a private attorney. In limited circumstances, TREC may order a license holder or registrant or certificate holder to pay a refund to a consumer. The refund cannot exceed the amount paid by the consumer to the license holder or registrant or certificate holder for a service or accommodation regulated by TREC. The order must be the result of a complaint matter that resulted in an agreement with the license holder or registrant or certificate holder from an informal settlement conference or an enforcement order.

If a broker has an exclusive listing with a seller, may another broker solicit a listing from the same seller that would begin after the other listing expired?

Yes. Rule 535.153 states that §1101.652(b)(22) of TRELA does not prohibit a license holder from soliciting a listing from the owner while the owner's property is subject to an exclusive listing with another broker, provided the listing does not commence until after the current listing expires.

Do I need a license to sell or lease cemetery lots?

No.

Do I need to file a complaint with TREC first before I can obtain funds from the Real Estate Recovery Trust Account or the Real Estate Inspection Recovery Fund?

No, filing a complaint with TREC is not a prerequisite to obtaining funds from one of the two recovery accounts maintained by TREC for paying judgments taken by consumers against real estate license holders or inspectors. Additional information about the two recovery accounts maintained by TREC are on our website.

I listed my property for sale with a broker and the broker has done nothing about selling the house. Can I break my contract and list with someone else?

Your listing contract with the broker is a private legal contract. TREC is unable to advise you on private contractual matters. If you feel that the broker has not fulfilled the broker's part of the agreement, i. e. advertising, holding open houses, etc., then you may have grounds to terminate the contract but you would need to contact a private attorney for help in making that determination. You could also ask the broker to agree to cancel or release the listing. If the broker agrees, then the contract can be mutually rescinded.

What do I need to send with my complaint to TREC?

Complete the complaint form on our website by answering each question. Be sure to sign it. Attach additional sheets as needed to fully explain your complaint. When applicable attach clear and complete copies of all related documents. Do not send originals. For example, if your complaint is about an inspection report, attach a copy of the report or state why it is not available. Or, if your complaint is regarding a promise made by your buyer’s agent, attach a copy of your buyer representation agreement, if the promise was made in writing, and the sales contract and the TILA/RESPA Integrated Disclosure (TRID) statement. If the promise was made at closing in front of the title company closing agent, you could include this witness’ name and contact information and describe what this witness may know.

What is the definition of a “commission”?

A commission or fee includes any form of compensation received for engaging in an act for which a license is required, essentially anything of value. [See Rules 535.1(5) and 535.20(a)]

Can listing agreements be extended?

Listing agreements are private contracts between a real estate broker and a seller. The terms of the contract and/or desires of the parties would determine whether the listing agreement can be extended. You should contact a private attorney if you have any questions about extending a listing agreement.

What types of complaints can be filed with TREC?

Written and signed complaints are accepted against the following types of businesses: real estate brokers and sales agents, real estate inspectors, TREC-approved education providers for real estate and inspection courses, TREC-approved instructors for real estate and inspection courses, residential service companies, timeshare developers, easement and right-of-way agents, and unlicensed persons engaging in any of these activities. TREC does not regulate and accept complaints against: Real Estate Developers (not regulated), Home Builders (not regulated), Appraisers (see the Texas Appraiser Licensing & Certification Board at talcb.texas.gov), Mortgage Brokers and Loan Officers (see the Texas Dept. of Savings & Mortgage Lending at www.sml.texas.gov), Property Tax Consultants (see the Property Tax Consultant Board of the Texas Dept. of Licensing and Regulation at www.license.state.tx.us/PTC/PTC.HTM), Title Insurance Companies (see the Texas Dept. of Insurance at www.tdi.texas.gov), Auctioneers (see the Texas Dept. of Licensing and Regulation at https://www.tdlr.texas.gov/auc/auclaw.htm, Manufactured Housing (see the Texas Department of Housing and Community Affairs at www.tdhca.state.tx.us/mh/), Plumbers (see the Texas State Board of Plumbing Examiners at www.tsbpe.state.tx.us), or Wood Destroying Insect Inspectors (see the Texas Department of Agriculture at www.texasagriculture.gov).

Can an out-of-state broker conduct brokerage business from another state by mail, phone, the Internet, or other medium?

When the real property concerned is located wholly or partly in Texas, the broker must obtain a Texas license or associate with a Texas broker.

Do I need a license to sell a mobile home or a manufactured home?

The sale of mobile or manufactured homes requires a separate license from the Texas Department of Housing and Community Affairs (TDHCA); however a TREC license holder is not required to be separately licensed by TDHCA if the manufactured or mobile home is attached to real property that is being offered for a sale, exchange, or lease transaction. “Attached” means that the manufactured or mobile home is permanently affixed to the real estate and its separate title document has been surrendered.

Does TREC have a promulgated listing agreement form?

No. A listing agreement is a private contract between a real estate broker and a property owner and is not promulgated by TREC. The Texas Association of Realtors (TAR) provides certain forms to its members. If you are a member, you may find a listing agreement form that meets your needs through TAR. Otherwise, you should consult with a private attorney.

My license is on inactive status with TREC. Can I receive money for referrals?

No. Your license must be on active status at the time you make the referral. However, if you made the referral while you were active, you may collect that fee while you are on inactive status. In addition, if you are a licensed sales agent, referral fees must be paid through your sponsoring broker.

I am having problems with a manufactured home that I purchased recently and wish to file a complaint against the manufacturer and broker/dealer.

TREC does not have jurisdiction over manufacturers or dealers of manufactured homes. You may file a complaint with the Texas Department of Housing and Community Affairs. TREC only has jurisdiction in situations where the manufactured home is attached to the real estate when you purchased it and your complaint is against a real estate license holder that was involved in that purchase.

What happens after I file a complaint with TREC?

You will be notified by email or mail that your complaint has been received. If an investigation is opened, each person against whom the complaint is filed will receive a copy of the complaint. After the investigation is concluded, the information obtained will be reviewed to determine whether there is sufficient evidence to take disciplinary action for a violation of the applicable statute or Commission’s rules. Disciplinary action could include a formal reprimand, the suspension or revocation of a license, payment of an administrative penalty, or other appropriate action. Investigations and the disciplinary process differ in complexity and duration, so providing a time of completion is not possible.

Do I need a license to lease or rent real property if I am an employee of the property owner?

No. Rule 535.34 provides guidelines to determine if evidence of an employer/employee relationship exists.

When a contract falls through, can part of the earnest money be held to pay the commission fee for the other real estate license holder?

No, unless the parties agree in writing otherwise.  

Can a license holder donate a portion of his commission to a church if one of the church members refers a client to the license holder?

Yes, as long as the church member who made the referral receives nothing that may be defined as valuable consideration from the church or the license holder.

I discovered that a real estate license holder is also a licensed mortgage broker. Is this legal? With what agency should I file a complaint?

TRELA and the Rules do not prohibit an individual from having other licenses. If the individual is acting in both capacities, he or she should have informed you in writing and obtained your consent before receiving any compensation from another party involved in the transaction. If the individual was acting in both capacities, you could file a complaint with both TREC and Texas Department of Savings and Mortgage Lending. If the individual was only acting in one capacity, you should file the complaint with the agency that regulates that function

How do I file a complaint with TREC?

There are instructions and a complaint form on our website. Please note that although the complaint form is in a fillable pdf format, once you have completed the form, you need to sign it before sending it to TREC.

How long does an agent have to deposit the earnest money once a binding contract has been negotiated?

The earnest money must be deposited by the close of business of the second working day after execution of the contract by the principals, unless a different time is agreed upon in writing by the principals to the transaction. [Rule 535.146(b)(3)]

Can a license holder hold a gift giveaway of any prize regardless of its value as long as entry into the giveaway is not limited to only those that refer a prospect for a real estate transaction?

Nothing in TRELA or the Rules would prohibit this. However, the license holder should verify that the giveaway is not considered an illegal lottery under Sections 47.01(7) & 47.03(5) of the Texas Penal Code.

When I purchased my house there were repairs made before closing that I requested. After moving into the house, I discovered that the repairs were not performed properly. The seller gave me the receipts of the licensed repair people who performed the repairs. I asked them to come correct the work but they refused. What can I do?

TREC does not have jurisdiction over licensed repair providers. You may want to check with Texas Department of Licensing and Regulation to see if they regulate the providers. You may also want to consult with a private attorney regarding your legal rights as a homeowner.

Can a real estate license be revoked if a license holder files for bankruptcy?

No. However, a license holder's bankruptcy does not affect a pending complaint or limit disciplinary action by TREC. However, even if a license holder’s debts are discharged in bankruptcy, if the underlying conduct violates §1101.652(a-1)(1) or §1101.652(b) of TRELA, disciplinary action can be taken against the license holder for the underlying conduct. Further, a judgment that involves conduct that constitutes a violation of §1101.652(a-1)(1) or §1101.652(b) of TRELA may be eligible for payment from the Real Estate Recovery Trust Account even if the debt was discharged in bankruptcy.

Does Texas have reciprocity with any other state?

No.  Texas does not have reciprocity with any state.  To become licensed, you must satisfy all current Texas licensing requirements.

I was trying to buy a house and the earnest money was deposited in the broker's escrow or trust account. The transaction has fallen through and now the broker won't return the earnest money.

If the broker used a Commission promulgated form, it contains provisions permitting the broker to require the buyer and seller to agree on who gets the earnest money and to sign a release before the money is disbursed. See Rule 535.146(d) for proper procedures for handling earnest money disputes where the broker is holding the money in a trust or escrow account.

Can a license holder offer to enter an unlicensed person in a drawing to win a cruise for referring a potential lessee or buyer?

No. Since the cruise would have a value greater than $50, it is defined as valuable consideration. Although entering a name into a drawing may not have a cost associated with it, whoever won the drawing would be receiving valuable consideration. In addition, a “referral” drawing may be considered a contest defined as an illegal lottery under Sections 47.01(7) & 47.03(5) of the Texas Penal Code.

I loaned Broker Smith $10,000 to build his real estate office and now he won't repay me. Can you help?

No. Failure to repay a loan constitutes a breach of your private agreement with the license holder and is not a violation of TRELA or the Rules. In addition, since it is not a violation of §1101.652(a-1)(1) or §1101.652(b) of the License Act, any judgment obtained would not be eligible for payment from the Real Estate Recovery Trust Account.

When a broker holds money from property management activities in a trust account, how often is a broker required to account for that money?

The broker must provide a monthly accounting of trust money if there has been any activity in the account. See [Rule 535.146(c)(6)]

Do I need to go to Texas to be fingerprinted?

No. If you reside outside the service area of MorphoTrust you may request a Hard Card to get fingerprinted. A TREC-specific Hard Card must be obtained from TREC because it contains coding required by the DPS and FBI. MorphoTrust has details on how a Texas Non-resident can complete the fingerprinting process using a Hard Card.  

We tried to buy a house but our loan application was not approved. Our $500 earnest money had been deposited with a title company and they said they wouldn't return it without a release signed by the seller, which the seller won't sign. Help!

The Commission does not have jurisdiction over title companies. While a license holder is encouraged to assist the parties in the exchange of the necessary earnest money release and need to sign the release as appropriate, there is nothing in TRELA or the Rules to determine who is entitled to the earnest money. You will need to consult a private attorney.

Can a license holder offer to give a $50 gift card to an unlicensed person for referring a potential lessee or buyer?

Although a license holder may not pay an unlicensed person valuable consideration for referring a potential lessee or buyer, gifts of merchandise with a retail value of $50 or less are not considered valuable consideration. [Rule 535.20(a)] Therefore, a $50 gift card that is only redeemable for certain merchandise (e.g. a gift card to a restaurant or department store) is not defined as valuable consideration and is permissible. A gift card from a bank (e.g. Visa or American Express), however, which can be converted to cash is not permissible. Any amount of cash or a credit or bonus toward rent owed is also not allowed as a reward for a referral.

When a license holder files a reinstatement application and answers “yes” to the criminal questions, does TREC require the license holder to resubmit legal documents that have already been submitted in the past?

A “yes” answer to the criminal questions on a reinstatement application requires an applicant to submit a Background History form along with copies of the offense court records and a written explanation. If the required documents were previously submitted in a prior application, the applicant may explain this fact. However, because TREC must dispose of certain documents in accordance with a records retention plan, TREC may no long have those documents and an applicant should be prepared to resubmit documents and the explanation previously submitted.

I signed a Property Management Agreement and do not understand some of the terms. Can you explain them to me?

No. A Property Management Agreement is a private contract and TREC is unable to advise you in private contractual matters. You should discuss the terms of the agreement with a private attorney.

I am a seller and I signed a contract with a buyer. Before the earnest money was deposited, the buyer backed out. Am I entitled to the earnest money?

The Commission does not have jurisdiction to decide which party is entitled to the earnest money. However, a real estate license holder's failure to deposit earnest money in accordance with the terms of the contract could form the basis of a complaint. Please note that TREC cannot order a license holder to pay money damages. You will need to consult a private attorney about monetary damages or other civil remedies.

If someone’s criminal history has been expunged, can the information still appear on the background check?

The information is not supposed to appear on a background check; however it still may by mistake. If it does, TREC will ask you to provide a copy of the Order of Expungment or Non-disclosure and upon receipt will not consider that offense in determining a person's fitness for licensure.

How are days counted in a TREC contract?

Starting with the effective (final execution) date of the contract, the first day of the period starts the next day. Each day is counted as calendar day.

Can a license holder offer or pay cash to an unlicensed person for referring a potential lessee or buyer?

No. The person who made the referral and received cash would be considered an unlicensed person engaged in the business of real estate brokerage [TRELA §1101.351(a)] and could be subject to administrative penalties and criminal charges. The license holder who offers to or actually pays cash to an unlicensed person for a referral is subject to disciplinary action. [TRELA §1101.652(b)(11) & (26)] However, a license holder may compensate an unlicensed person from a foreign country or state that does not require a license to engage in real estate brokerage activities, if the person otherwise complies with the law of the foreign country and practices there as a real estate broker. [Rule 535.131(b)]

What is the estimated time frame to process an Moral Character Determination (MCD) form?

After an MCD request is filed and all required documentation is obtained (either initially or following subsequent requests for additional information), TREC will investigate the information and make a determination. Once TREC makes a determination, TREC has 30 days to notify the person of the determination. Providing a complete form and promptly sending any requested documentation will decrease the processing time of an MCD.

My real estate application was filed with a name that is different than the name on my government issued ID. Will this prevent me from taking the exam?

Yes.  The name on your government issued photo ID must match the name on your real estate license application.  If the names do not match, please submit a name change request.  Include your name as it appears on the application, a copy of your government-issued photo ID, and your telephone number to TREC.

 

Can a rental locator rebate a portion of the rental locator’s fee received from the apartment complex to a prospective tenant if the tenant uses the locator’s services?

Yes, but a locator will be required to first obtain the consent of the apartment complex if the locator does not represent the tenant.

I am having a dispute with my Homeowner Association (HOA) regarding violating neighborhood restrictions.

TREC does not have jurisdiction over Homeowner Associations or Association Management Companies. You may wish to consult with a private attorney regarding your legal rights as a homeowner. See also Chapter 209, Property Code.

Real Estate Sales Agent

Does the use of the TREC Disclosure of Relationship with Residential Service Company form (RSC-2) apply to both sale and lease transactions?

Yes.

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)]

Is the Disclosure of Relationship with Residential Service Company form required for every transaction?

No. This form is required only when a residential service company agrees to pay a license holder for a service provided to or on behalf of the company. The form should indicate which license holders have received or will receive the payment. If a license holder is not receiving a payment from the company, this should be noted as well. Each license holder must sign the form.

Are there exceptions when the statutory written statement is not required?

Yes. The statement 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 statement is not generally required when the license holder is acting solely as a principal in the transaction.

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 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. [Rule 535.154(g) ]. 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.

Similarly, you can use the name “Spectacular Properties” if your broker sends written notice to the Commission within 30 days of the start of the use of that name [Rule 535.154(c) and (e)] and you add additional designations such as “agent” to the advertisement to readily identify that the advertisement was placed by a sales agent. [Rule 535.154(f)] For example, the advertisement might state “call 123-1234, agent, Spectacular Properties” or “call Sally at 123-1234, agent, Spectacular Properties.

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)]

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 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)]

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

Request inactive status online at no cost by following the instructions below:

  • Log into our Online Services
  • Choose to Manage my Sponsorship (Sales)
  • Proceed to “Terminate” the sponsoring broker of record.

If you submit the Application for Inactive Broker or Sales Agent Status form by mail, you must include the $20.00 paper processing.

A residential service company is paying me a fee to advertise for it. Do I have to disclose that fee to my client and use a TREC form?

Yes and yes. You must also provide the client with the TREC Disclosure of Relationship with Residential Service Company form (RSC-2).

I am a real estate broker, can I use the term “REALTOR” on my business card?

No, unless you have the legal right to use this copyrighted trade name. See Rule 535.154(i). Check with your local board to find out if membership in the board will grant you the right to use the term “REALTOR.”

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.

We put in an offer to buy a house. The agent held the offer and then another offer came in on the same house. Isn't it illegal or unethical for an agent to present two offers to the seller at the same time? Shouldn't an agent present the first offer received so that the seller accepts or rejects it before presenting the second offer?

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.

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.

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.

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.

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) and 535.154; 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)].

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 Rule 535.154.

Rule 535.154 contains two requirements that must be met for all advertisements.

  1. An advertisement placed by a license holder must "clearly and conspicuously contain the name of the broker, either a business entity or an individual."
    1. A broker's assumed name may be used if it is registered with the Commission.
    2. The “clearly and conspicuously” requirement is met so long as the broker’s name or assumed name is at least half the size of the largest contact information (e.g. phone number, email address, website).
    3. The name of a sales agent sponsored by the broker may also be included in the advertisement, but an advertisement may not imply that the sales agent is the person responsible for the operation of a real estate brokerage business. This includes when a sales agent identifies himself or herself as “owner” or “partner” on an advertisement.
  2. An advertisement must include a designation that serves to clearly identify the advertiser as a real estate agent. This is no longer a requirement as of September 1, 2017. An advertisement may, however, still contain this information (it is just not mandatory).

Note: There is no requirement that a phone number or email address included in an advertisement belong to the broker.

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.

How do I change my business physical address?

Go online to change your business physical address at no cost.  If you submit the change of address form by mail, you must include the paper processing fee.

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 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]

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]

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.

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)]

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

Yes. Although this is no longer mandatory, it may still be placed on a sign.

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)]

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)]

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.

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.

What is considered an advertisement?

Under Rule 535.154(a), an advertisement is defined as a “written or oral statement or communication which induces or attempts to induce” a person to use the services of a real estate license holder. It includes, but is not limited to, all publications, radio or television, all electronic media including emails, texts, websites, blogs and tweets, business cards, letterhead, signs, and billboards. Once a person has agreed to use the services of a license holder, subsequent communication from the license holder is not considered an advertisement.

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

Yes. The sponsoring broker is still responsible for the sales agent's actions, even when the sales agent owns his or her own real estate company. [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. [TRELA §1101.351(c)] If the sales agent’s company engages in business under an assumed name, the broker would need to notify TREC in writing within 30 days after the sales agent or the sponsoring broker starts or stops using the assumed name. [Rule 535.154(e)]

Can an unlicensed assistant show a property to a broker’s client, if all the assistant does is open the door and walk silently through the house with the clients?

No. Rule 535.4(c) states that a person must be licensed as a broker or sales agent to show a broker's listings. An unlicensed assistant cannot perform any activities for a license holder that requires a license, and therefore, cannot "show" a property. The rules do not define what "show" a property means, so the Commission must interpret what that means.

Generally in rule interpretation, one should look at the plain language meaning of the word and then put it into context. The Merriam Webster Dictionary defines to "show" as "to cause or permit to be seen". Taking the plain language meaning then, unlocking a house is "causing or permitting" the home to be seen. So, if an unlicensed assistant opens the house for a buyer, that constitutes showing a house.

Further, reading the rule in the context of the law's purpose of consumer protection, to allow an unlicensed person to open and enter a house for sale would effectively bypass the legislative requirement of requiring fingerprint-based criminal history background checks for all license holders before granting or renewing a real estate license. This requirement is in place to ensure that a person with an inappropriate criminal background will not receive a license that would allow them to open and enter homes for sale.

This is a change from a previous interpretation that was contained in an old article regarding unlicensed assistants. After the criminal background check requirement became law, that interpretation became outdated and was no longer correct.

So, an unlicensed assistant cannot show the property for a license holder; this applies to both homes for sale and for lease.

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)]

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.

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

No.

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 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]

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)]

I want to renew my 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.

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 535.154(m), 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.

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.

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’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.

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)] Notwithstanding 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. If the sales agent was not working from the broker’s main office, the broker would also need to obtain a branch office license for the second office location. [Rule 535.112]

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 in Legal Update I and 4 hours in Legal Update II, and 10 hours in CE elective 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 during their current license period or a delegated supervisor of one or more license holders for a period of six months or more during the supervisor’s current license period must complete the six-hour Broker Responsibility Course as part of the 18-hour CE requirement.

 

May a license holder use an assumed name in business (DBA)?

Yes. TREC, however, must be notified in writing by the broker of the broker’s or sponsored sales agent’s use of an assumed name in business within 30 days of starting or stopping use of the name. [Rule 535.154(e)] Notification can be made to TREC using the Notice of DBA or Assumed Name for Broker's License form (DBA-2) that is available on our website. A licensed entity, such as a corporation or limited liability company is also required to give TREC written notice if the entity engages in business under an assumed name. An “assumed name” is any name other than the name in which the individual or entity is licensed. In addition, a license holder may not use the name of a sales agent in advertising unless the sponsoring broker’s name or assumed name also appears. [Rule 535.154]

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 535.154(n)] 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 kick-backs.

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.

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)].

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 535.154(m) 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.

A residential service contract is part of a transaction but I am not getting paid by the residential service company. Do I still have to use the TREC Disclosure of Relationship with Residential Service Company form (RSC-2)?

No.

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.

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)].

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 535.154(m)] A sales agent must also have their sponsoring broker's authorization to offer a rebate. Also, see the answer to the next question regarding notice to the buyer’s lender.

Can a licensed sales agent own his or her own real estate company?

Yes, a licensed sales agent can own his or her own real estate company. The sales agent must, however, have a sponsoring broker through whom all transactions must be handled and who will be responsible for the 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 remains ultimately 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. If a sales agent engages in business under an assumed name that includes the sales agent’s own name, the sales agent’s sponsoring broker's name or assumed name must also be used. If a sales agent is going to engage in real estate brokerage under an assumed name, the sales agent’s broker would need to notify TREC in writing within 30 days after the sales agent or the sales agent’s sponsoring broker starts or stops using the name. [Rule 535.154(c) and (e)]

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.

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:

  1. 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;
  2. 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); 
  3.  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; and
  4. both the buyer and seller represented by the broker or the broker’s sales agents execute an agreement regarding notice of intermediary before the contract is negotiated.

 

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).

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.

Real Estate Broker Individual

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)]

Are there exceptions when the statutory written statement is not required?

Yes. The statement 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 statement is not generally required when the license holder is acting solely as a principal in the transaction.

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. [Rule 535.154(g) ]. 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.

Similarly, you can use the name “Spectacular Properties” if your broker sends written notice to the Commission within 30 days of the start of the use of that name [Rule 535.154(c) and (e)] and you add additional designations such as “agent” to the advertisement to readily identify that the advertisement was placed by a sales agent. [Rule 535.154(f)] For example, the advertisement might state “call 123-1234, agent, Spectacular Properties” or “call Sally at 123-1234, agent, Spectacular Properties.

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)]

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 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)]

A residential service company is paying me a fee to advertise for it. Do I have to disclose that fee to my client and use a TREC form?

Yes and yes. You must also provide the client with the TREC Disclosure of Relationship with Residential Service Company form (RSC-2).

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

Yes.

I am a real estate broker, can I use the term “REALTOR” on my business card?

No, unless you have the legal right to use this copyrighted trade name. See Rule 535.154(i). Check with your local board to find out if membership in the board will grant you the right to use the term “REALTOR.”

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.

We put in an offer to buy a house. The agent held the offer and then another offer came in on the same house. Isn't it illegal or unethical for an agent to present two offers to the seller at the same time? Shouldn't an agent present the first offer received so that the seller accepts or rejects it before presenting the second offer?

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.

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.

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

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.

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.

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) and 535.154; 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)].

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.

How do I change my business physical address?

Go online to change your business physical address at no cost.  If you submit the change of address form by mail, you must include the paper processing fee.

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 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]

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]

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.

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)]

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.

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

Yes. Although this is no longer mandatory, it may still be placed on a sign.

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 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)]

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)]

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.

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.

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.

What is considered an advertisement?

Under Rule 535.154(a), an advertisement is defined as a “written or oral statement or communication which induces or attempts to induce” a person to use the services of a real estate license holder. It includes, but is not limited to, all publications, radio or television, all electronic media including emails, texts, websites, blogs and tweets, business cards, letterhead, signs, and billboards. Once a person has agreed to use the services of a license holder, subsequent communication from the license holder is not considered an advertisement.

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

Yes. The sponsoring broker is still responsible for the sales agent's actions, even when the sales agent owns his or her own real estate company. [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. [TRELA §1101.351(c)] If the sales agent’s company engages in business under an assumed name, the broker would need to notify TREC in writing within 30 days after the sales agent or the sponsoring broker starts or stops using the assumed name. [Rule 535.154(e)]

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 Rule 535.154.

Rule 535.154 contains two requirements that must be met for all advertisements.

  1. An advertisement placed by a license holder must "clearly and conspicuously contain the name of the broker, either a business entity or an individual."
    1. A broker's assumed name may be used if it is registered with the Commission.
    2. The “clearly and conspicuously” requirement is met so long as the broker’s name or assumed name is at least half the size of the largest contact information (e.g. phone number, email address, website).
    3. The name of a sales agent sponsored by the broker may also be included in the advertisement, but an advertisement may not imply that the sales agent is the person responsible for the operation of a real estate brokerage business. This includes when a sales agent identifies himself or herself as “owner” or “partner” on an advertisement.
  2. An advertisement must include a designation that serves to clearly identify the advertiser as a real estate agent. This is no longer a requirement as of September 1, 2017. An advertisement may, however, still contain this information (it is just not mandatory).

Note: There is no requirement that a phone number or email address included in an advertisement belong to the broker.

Can an unlicensed assistant show a property to a broker’s client, if all the assistant does is open the door and walk silently through the house with the clients?

No. Rule 535.4(c) states that a person must be licensed as a broker or sales agent to show a broker's listings. An unlicensed assistant cannot perform any activities for a license holder that requires a license, and therefore, cannot "show" a property. The rules do not define what "show" a property means, so the Commission must interpret what that means.

Generally in rule interpretation, one should look at the plain language meaning of the word and then put it into context. The Merriam Webster Dictionary defines to "show" as "to cause or permit to be seen". Taking the plain language meaning then, unlocking a house is "causing or permitting" the home to be seen. So, if an unlicensed assistant opens the house for a buyer, that constitutes showing a house.

Further, reading the rule in the context of the law's purpose of consumer protection, to allow an unlicensed person to open and enter a house for sale would effectively bypass the legislative requirement of requiring fingerprint-based criminal history background checks for all license holders before granting or renewing a real estate license. This requirement is in place to ensure that a person with an inappropriate criminal background will not receive a license that would allow them to open and enter homes for sale.

This is a change from a previous interpretation that was contained in an old article regarding unlicensed assistants. After the criminal background check requirement became law, that interpretation became outdated and was no longer correct.

So, an unlicensed assistant cannot show the property for a license holder; this applies to both homes for sale and for lease.

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.

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 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)]

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.

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

No.

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 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]

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]

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)]

I want to renew my 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.

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)] The broker will also need to obtain a branch office license for the office location from which the sales agent transacts business. [Rule 535.112]

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 535.154(m), 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.

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)]

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.

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.

 

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

If a license holder 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)]

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 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)] Notwithstanding 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. If the sales agent was not working from the broker’s main office, the broker would also need to obtain a branch office license for the second office location. [Rule 535.112]

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 in Legal Update I and 4 hours in Legal Update II, and 10 hours in CE elective 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 during their current license period or a delegated supervisor of one or more license holders for a period of six months or more during the supervisor’s current license period must complete the six-hour Broker Responsibility Course as part of the 18-hour CE requirement.

 

May a license holder use an assumed name in business (DBA)?

Yes. TREC, however, must be notified in writing by the broker of the broker’s or sponsored sales agent’s use of an assumed name in business within 30 days of starting or stopping use of the name. [Rule 535.154(e)] Notification can be made to TREC using the Notice of DBA or Assumed Name for Broker's License form (DBA-2) that is available on our website. A licensed entity, such as a corporation or limited liability company is also required to give TREC written notice if the entity engages in business under an assumed name. An “assumed name” is any name other than the name in which the individual or entity is licensed. In addition, a license holder may not use the name of a sales agent in advertising unless the sponsoring broker’s name or assumed name also appears. [Rule 535.154]

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 535.154(n)] 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 kick-backs.

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.

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)].

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 535.154(m) 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.

A residential service contract is part of a transaction but I am not getting paid by the residential service company. Do I still have to use the TREC Disclosure of Relationship with Residential Service Company form (RSC-2)?

No.

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.

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)].

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 535.154(m)] A sales agent must also have their sponsoring broker's authorization to offer a rebate. Also, see the answer to the next question regarding notice to the buyer’s lender.

Is there a limit on the number of branch offices a broker can have?

No. However, if a broker or the broker’s sales agent maintains more than one place of business where either meets the public to transact business, the broker must obtain a branch office license for each location. [Rule 535.112]

Can a licensed sales agent own his or her own real estate company?

Yes, a licensed sales agent can own his or her own real estate company. The sales agent must, however, have a sponsoring broker through whom all transactions must be handled and who will be responsible for the 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 remains ultimately 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. If a sales agent engages in business under an assumed name that includes the sales agent’s own name, the sales agent’s sponsoring broker's name or assumed name must also be used. If a sales agent is going to engage in real estate brokerage under an assumed name, the sales agent’s broker would need to notify TREC in writing within 30 days after the sales agent or the sales agent’s sponsoring broker starts or stops using the name. [Rule 535.154(c) and (e)]

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.

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:

  1. 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;
  2. 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); 
  3.  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; and
  4. both the buyer and seller represented by the broker or the broker’s sales agents execute an agreement regarding notice of intermediary before the contract is negotiated.

 

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).

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.

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 License by an Individual along with requested documents and the applicable fee.

Does the use of the TREC Disclosure of Relationship with Residential Service Company form (RSC-2) apply to both sale and lease transactions?

Yes.

Is the Disclosure of Relationship with Residential Service Company form required for every transaction?

No. This form is required only when a residential service company agrees to pay a license holder for a service provided to or on behalf of the company. The form should indicate which license holders have received or will receive the payment. If a license holder is not receiving a payment from the company, this should be noted as well. Each license holder must sign the form.

Business Entity Broker

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.

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. [Rule 535.154(g) ]. 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.

Similarly, you can use the name “Spectacular Properties” if your broker sends written notice to the Commission within 30 days of the start of the use of that name [Rule 535.154(c) and (e)] and you add additional designations such as “agent” to the advertisement to readily identify that the advertisement was placed by a sales agent. [Rule 535.154(f)] For example, the advertisement might state “call 123-1234, agent, Spectacular Properties” or “call Sally at 123-1234, agent, Spectacular Properties.

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)]

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)]

A residential service company is paying me a fee to advertise for it. Do I have to disclose that fee to my client and use a TREC form?

Yes and yes. You must also provide the client with the TREC Disclosure of Relationship with Residential Service Company form (RSC-2).

Is the Disclosure of Relationship with Residential Service Company form required for every transaction?

No. This form is required only when a residential service company agrees to pay a license holder for a service provided to or on behalf of the company. The form should indicate which license holders have received or will receive the payment. If a license holder is not receiving a payment from the company, this should be noted as well. Each license holder must sign the form.

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

Yes.

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.

I am a real estate broker, can I use the term “REALTOR” on my business card?

No, unless you have the legal right to use this copyrighted trade name. See Rule 535.154(i). Check with your local board to find out if membership in the board will grant you the right to use the term “REALTOR.”

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.

We put in an offer to buy a house. The agent held the offer and then another offer came in on the same house. Isn't it illegal or unethical for an agent to present two offers to the seller at the same time? Shouldn't an agent present the first offer received so that the seller accepts or rejects it before presenting the second offer?

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.

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.

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

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.

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.

How do I change my business physical address?

Go online to change your business physical address at no cost.  If you submit the change of address form by mail, you must include the paper processing fee.

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 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]

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.

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]

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)]

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.

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.

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

Yes. Although this is no longer mandatory, it may still be placed on a sign.

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.

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)]

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)]

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.

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.

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.

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.

What is considered an advertisement?

Under Rule 535.154(a), an advertisement is defined as a “written or oral statement or communication which induces or attempts to induce” a person to use the services of a real estate license holder. It includes, but is not limited to, all publications, radio or television, all electronic media including emails, texts, websites, blogs and tweets, business cards, letterhead, signs, and billboards. Once a person has agreed to use the services of a license holder, subsequent communication from the license holder is not considered an advertisement.

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

Yes. The sponsoring broker is still responsible for the sales agent's actions, even when the sales agent owns his or her own real estate company. [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. [TRELA §1101.351(c)] If the sales agent’s company engages in business under an assumed name, the broker would need to notify TREC in writing within 30 days after the sales agent or the sponsoring broker starts or stops using the assumed name. [Rule 535.154(e)]

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 Rule 535.154.

Rule 535.154 contains two requirements that must be met for all advertisements.

  1. An advertisement placed by a license holder must "clearly and conspicuously contain the name of the broker, either a business entity or an individual."
    1. A broker's assumed name may be used if it is registered with the Commission.
    2. The “clearly and conspicuously” requirement is met so long as the broker’s name or assumed name is at least half the size of the largest contact information (e.g. phone number, email address, website).
    3. The name of a sales agent sponsored by the broker may also be included in the advertisement, but an advertisement may not imply that the sales agent is the person responsible for the operation of a real estate brokerage business. This includes when a sales agent identifies himself or herself as “owner” or “partner” on an advertisement.
  2. An advertisement must include a designation that serves to clearly identify the advertiser as a real estate agent. This is no longer a requirement as of September 1, 2017. An advertisement may, however, still contain this information (it is just not mandatory).

Note: There is no requirement that a phone number or email address included in an advertisement belong to the broker.

Can an unlicensed assistant show a property to a broker’s client, if all the assistant does is open the door and walk silently through the house with the clients?

No. Rule 535.4(c) states that a person must be licensed as a broker or sales agent to show a broker's listings. An unlicensed assistant cannot perform any activities for a license holder that requires a license, and therefore, cannot "show" a property. The rules do not define what "show" a property means, so the Commission must interpret what that means.

Generally in rule interpretation, one should look at the plain language meaning of the word and then put it into context. The Merriam Webster Dictionary defines to "show" as "to cause or permit to be seen". Taking the plain language meaning then, unlocking a house is "causing or permitting" the home to be seen. So, if an unlicensed assistant opens the house for a buyer, that constitutes showing a house.

Further, reading the rule in the context of the law's purpose of consumer protection, to allow an unlicensed person to open and enter a house for sale would effectively bypass the legislative requirement of requiring fingerprint-based criminal history background checks for all license holders before granting or renewing a real estate license. This requirement is in place to ensure that a person with an inappropriate criminal background will not receive a license that would allow them to open and enter homes for sale.

This is a change from a previous interpretation that was contained in an old article regarding unlicensed assistants. After the criminal background check requirement became law, that interpretation became outdated and was no longer correct.

So, an unlicensed assistant cannot show the property for a license holder; this applies to both homes for sale and for lease.

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)]

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)]

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.

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

No.

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 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]

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]

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 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)] The broker will also need to obtain a branch office license for the office location from which the sales agent transacts business. [Rule 535.112]

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 535.154(m), 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.

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)]

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.

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

If a license holder 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)]

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 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)] Notwithstanding 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. If the sales agent was not working from the broker’s main office, the broker would also need to obtain a branch office license for the second office location. [Rule 535.112]

May a license holder use an assumed name in business (DBA)?

Yes. TREC, however, must be notified in writing by the broker of the broker’s or sponsored sales agent’s use of an assumed name in business within 30 days of starting or stopping use of the name. [Rule 535.154(e)] Notification can be made to TREC using the Notice of DBA or Assumed Name for Broker's License form (DBA-2) that is available on our website. A licensed entity, such as a corporation or limited liability company is also required to give TREC written notice if the entity engages in business under an assumed name. An “assumed name” is any name other than the name in which the individual or entity is licensed. In addition, a license holder may not use the name of a sales agent in advertising unless the sponsoring broker’s name or assumed name also appears. [Rule 535.154]

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.

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)].

A residential service contract is part of a transaction but I am not getting paid by the residential service company. Do I still have to use the TREC Disclosure of Relationship with Residential Service Company form (RSC-2)?

No.

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.

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)].

Is there a limit on the number of branch offices a broker can have?

No. However, if a broker or the broker’s sales agent maintains more than one place of business where either meets the public to transact business, the broker must obtain a branch office license for each location. [Rule 535.112]

Can a licensed sales agent own his or her own real estate company?

Yes, a licensed sales agent can own his or her own real estate company. The sales agent must, however, have a sponsoring broker through whom all transactions must be handled and who will be responsible for the 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 remains ultimately 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. If a sales agent engages in business under an assumed name that includes the sales agent’s own name, the sales agent’s sponsoring broker's name or assumed name must also be used. If a sales agent is going to engage in real estate brokerage under an assumed name, the sales agent’s broker would need to notify TREC in writing within 30 days after the sales agent or the sales agent’s sponsoring broker starts or stops using the name. [Rule 535.154(c) and (e)]

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:

  1. 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;
  2. 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); 
  3.  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; and
  4. both the buyer and seller represented by the broker or the broker’s sales agents execute an agreement regarding notice of intermediary before the contract is negotiated.

 

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).

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 License by an Individual along with requested documents and the applicable fee.

Does the use of the TREC Disclosure of Relationship with Residential Service Company form (RSC-2) apply to both sale and lease transactions?

Yes.

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.

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)]

Are there exceptions when the statutory written statement is not required?

Yes. The statement 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 statement is not generally required when the license holder is acting solely as a principal in the transaction.

Apprentice Inspector

Is an inspector required to determine if a light fixture is approved for its location over a bathtub or shower?

The Standards of Practice do not require inspectors to determine if light fixtures are approved for wet locations or to report such installations 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.

Does TREC require the use of a “contract” for inspections which would outline the responsibilities of the parties to the contract or have a form inspectors can use?

 No. TREC does not require a pre-inspection or employment contract to be signed by the parties to the inspection. Inspectors are free to use or not use a contract. You may want to have a private attorney create a contract for you, or you may check with some of the inspector trade associations to see if they provide templates of pre-inspection contracts.

Is observance of gas shut-off valves and connections with a digital camera placed behind or under appliances considered a reasonable method for discovering deficiencies in inaccessible areas?

Pursuant to Section 535.227(a)(1) of the Standards of Practice, inspectors are not required to move appliances in order to inspect behind them. However, it is often possible to locate gas shut-off valves either behind or near appliances (such as in the cabinet next to the range). If a gas shut-off valve cannot be located, this should be reported. As the question suggests, it is sometimes also possible to use a digital camera to “see” in areas that are not otherwise accessible and there are multiple means of detection of gas leaks in existence, such as through the use of hand held detectors (however, these would be considered specialized tools and are not required to be used in performing inspections).

What level of precision is expected for the “approximation” of average insulation depth?

Section 535.228(d)(1)(B) requires an inspector to report “approximate average depth of attic insulation.” We are unable to prescribe a certain "level of precision” that would satisfy this requirement; any of the examples you presented would satisfy the requirement to report the depth of insulation, as long as they accurately reflect the conditions.

Is the inspector required to inspect a water metering device to determine if a leak may exist? Is the inspector required to perform any inspection of the meter?

Pursuant to Section 535.227(b)(3)(A)(vi) of the Standards of Practice, an inspector is not required to inspect or test metering devices.

Is a keyed deadbolt on the interior of an exterior egress door deficient and a required reporting item per TREC?

The Standards of Practice do not require double-cylinder deadbolts to be reported as deficient unless such a deadbolt would impede functional emergency escape from a sleeping room.

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.

On my inspection report, the inspector reported certain things in the house as “safety hazards” or “code violations”. Can TREC give me information about what codes the inspector is referring to?

There are many different codes that can figure into the construction of a house, depending on when it was built and local amendments. TREC does not require inspectors to inspect to any of the various building codes and cannot assist you in determining what code provisions were applied in a particular situation. Instead, TREC has established Standards of Practice for inspectors to follow. [Rule 535.227-535.233] However, an inspector is free to inspect to a higher standard (such as to various codes or based on recognized safety hazards), as long as they do so competently. If you have questions about your inspection report, you should ask your inspector for the basis of his statement. You may also wish to contact your local code enforcement authority for more information about relevant codes.

Is olfactory detection of methane/natural gas odorant the only reasonable method of discovering gas leaks when the connectors are not accessible?

 Pursuant to Section 535.227(a)(1) of the Standards of Practice, inspectors are not required to move appliances in order to inspect behind them. However, it is often possible to locate gas shut-off valves either behind or near appliances (such as in the cabinet next to the range). If a gas shut-off valve cannot be located, this should be reported. As the question suggests, it is sometimes also possible to use a digital camera to “see” in areas that are not otherwise accessible and there are multiple means of detection of gas leaks in existence, such as through the use of hand held detectors (however, these would be considered specialized tools and are not required to be used in performing inspections).

Is wrinkled loose carpet a defect and required reporting item per TREC? 2. Presuming an upstairs floor or the ceiling below does not exhibit obvious evidence of failure, is a squeaky floor a defect and required reporting item per TREC?

Section 535.228(e)(3)(A) of the Standards of Practice states that inspectors are not required to report cosmetic damage or the condition of floor, wall, or ceiling coverings. Neither loose carpet nor floor squeaks, without further evidence of deficient conditions, is required to be reported as deficient.

Is the inspector required to determine the presence of Chinese drywall? Is the inspector required to report the symptoms of Chinese drywall? Is the inspector required to warn of the risk of Chinese drywall?

Pursuant to the general limitations in the Standards of Practice, inspectors are not required to determine the presence of “Chinese drywall” or to report its symptoms or risks. As an example, if corrosion to copper tubing lines or copper wires were found, that could in the opinion of the inspector constitute a deficiency, the inspector is not required to determine or report the cause of the corrosion, such as from “Chinese drywall."

Is the presence of carpet on an attached garage floor deficient and a required reporting item per TREC?

The presence of carpet in a garage is not required to be reported as a deficiency.

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.

How do I change my business physical address?

Go online to change your business physical address at no cost.  If you submit the change of address form by mail, you must include the paper processing fee.

It appears that the inspector who inspected my home before my purchase missed major termite infestation. The damage from the termites has cost me thousands of dollars to repair. Shouldn’t the inspector have noted this problem on his report?

In Texas, any person who reports on wood destroying insects in a home must be licensed by the state as a wood destroying insect inspector. These licenses are issued by the Texas Structural Pest Control Service of the Texas Department of Agriculture at www.texasagriculture.gov. Some TREC licensed home inspectors are also licensed wood destroying insect inspectors, and therefore, may inspect a home for termites, etc. if hired for that purpose. However, under the home inspector license issued by TREC, the inspector MAY NOT comment on whether termite infestations exist. They should comment on visible damage regardless of the underlying cause and note it as a deficiency on their report, but may not assess that the damage was specifically caused by wood destroying insects.

Is the inspector required to comment on or report as deficient those gas appliance shut-off valves and connectors not visible or accessible without moving the gas appliances?

 Pursuant to Section 535.227(a)(1) of the Standards of Practice, inspectors are not required to move appliances in order to inspect behind them. However, it is often possible to locate gas shut-off valves either behind or near appliances (such as in the cabinet next to the range). If a gas shut-off valve cannot be located, this should be reported. As the question suggests, it is sometimes also possible to use a digital camera to “see” in areas that are not otherwise accessible and there are multiple means of detection of gas leaks in existence, such as through the use of hand held detectors (however, these would be considered specialized tools and are not required to be used in performing inspections).

Is the absence of gutters a defect and required reporting item per TREC?

No. Unless specifically indicated otherwise, the Standards of Practice only address items that are present at the time of the inspection. If gutters are present, they are required to be inspected under §535.228(b)(1)(C).

Do the Standards of Practice require inspectors to comment on the way a gas pipe enters a crawl space?

The Standards of Practice require only that the pipe entry be reported as deficient when the gas piping is concealed in a duct, plenum, or chase. See Section 535.230(d)(4).

How shall an inspector ascertain with any degree of accuracy if the fire separation between a residence and its attached garage is in place?

The Standards of Practice require inspectors to perform a visual inspection. If it is not visibly apparent whether proper fire separation is present, the inspector must make clear to the client that he or she was not able to ascertain whether proper fire separation was in place.

Lack of weep holes is only required to be reported as a deficiency when there is visible evidence of water penetration or a structural issue that may be related to the lack of weep holes.

I recently purchased an older home that was inspected before the purchase. After living in the home a few weeks, the dishwasher started leaking and had to be replaced. Shouldn’t the inspector have told me this unit was about to fail?

Mechanical components like dishwashers can and will break down. A home inspection tells you the condition of the component at the time of the home inspection. The inspector is not required to determine life expectancy of any system or component. [Rule 535.227(b)(3)(C)(i)]

Are gas ranges, built-in wall ovens, or clothes dryers considered to be large, heavy, fragile objects which could be damaged or cause damage while being moved, and an undue hazard and risk to the inspector?

Pursuant to Section 535.227(a)(1) of the Standards of Practice, inspectors are not required to move appliances in order to inspect behind them. However, it is often possible to locate gas shut-off valves either behind or near appliances (such as in the cabinet next to the range). If a gas shut-off valve cannot be located, this should be reported. As the question suggests, it is sometimes also possible to use a digital camera to “see” in areas that are not otherwise accessible and there are multiple means of detection of gas leaks in existence, such as through the use of hand held detectors (however, these would be considered specialized tools and are not required to be used in performing inspections).

Can a licensed inspector perform a hydrostatic test?

No, only a licensed plumber may perform a hydrostatic test on a system within a home.

Is the absence of an anti-entrapment cover in a spa deficient and a required reporting item per TREC? 2. Is the presence of a single drain or suction opening in a pool spa deficient and a required reporting item per TREC?

The absence of an anti-entrapment cover in a spa is not a required reporting item. Section 535.233(2)(B)(i), however, requires an inspector to report as deficient the presence of a single blockable main drain.

Do the Standards of Practice require inspectors to report copper gas lines as deficient?

Inspectors are not required to determine utility sources or to research codes and ordinances related to this issue. As copper gas line material is only a concern in areas where there may be corrosive additives in the gas supply, the presence of copper gas line material is not required to be reported as deficient.

I am not currently performing inspections, but I'd like to maintain my license. Is there a way for me to do that without going to the expense of obtaining insurance?

An inspector may request inactive status in writing at any time. An inspector who meets all other renewal requirements but does not show proof of insurance will receive an inactive license (which does not permit the inspector to perform inspections). To become active, a professional inspector would need to send in the Return to Active Status form (or, for apprentice or real estate inspectors, the sponsorship form) along with the applicable fee and the required proof of insurance.

Is the inspector required to inspect to trade or industry association standards? For example, ASTM, UL or ARMA?

 Inspectors are not required to inspect to trade or industry association standards. However, an inspector who advertises or represents that he or she will inspect to a higher standard could be subject to disciplinary action for failure to do so.

Do I have any recourse against the inspector for failing to note on his report that there was a gas leak outside the home due to a corroded gas line?

Probably not. TREC licensed inspectors are required to follow Standards of Practice when inspecting property. These may be found on our website about Rules Governing Inspectors. The Standards of Practice do not require an inspector to dig up gas lines in order to determine their condition. They are only required to conduct a visual inspection of the property, and buried gas lines are not required to be inspected.

Is the definition of accessible, as applied to gas appliance connections, left to the reasonable judgment of the inspector?

Pursuant to Section 535.227(a)(1) of the Standards of Practice, inspectors are not required to move appliances in order to inspect behind them. However, it is often possible to locate gas shut-off valves either behind or near appliances (such as in the cabinet next to the range). If a gas shut-off valve cannot be located, this should be reported. As the question suggests, it is sometimes also possible to use a digital camera to “see” in areas that are not otherwise accessible and there are multiple means of detection of gas leaks in existence, such as through the use of hand held detectors (however, these would be considered specialized tools and are not required to be used in performing inspections).

The lack of a damper clamp is required to be reported as a deficiency when a gas appliance or artificial gas logs (but not merely a log lighter pipe) is present. The Standards of Practice do not establish a minimum distance that the clamp should hold the damper open

Is a corroded bathroom fixture that remains operable a defect and required reporting item per TREC?

Purely cosmetic corrosion is not required to be reported as a deficiency.

The Standards of Practice require inspectors to report as deficient the lack of exhaust ventilators in required areas. What are the required areas for exhaust ventilators?

At a minimum, bathrooms and water closets that that do not have an operative window must be reported as deficient if they lack an exhaust fan that vents to outside air.

As an inspector, when do I have to show proof of E&O insurance?

A Certificate of Insurance form (promulgated by TREC), signed by the insurance agent, must be filed with TREC at the time the license is issued and with each renewal of the license. In addition, an inspector must retain sufficient records of professional liability insurance coverage, or any other insurance that provides coverage for violations of Subchapter G of Chapter 1102, to document to the commission continuous coverage for the preceding two year license period.

Is the inspector required by the SoP to be knowledgeable of local requirements?

Pursuant to Section 535.227(b)(3)(C)(i), inspectors are not required to determine code compliance, utility sources, or regulatory requirements except as specifically required by the standards.

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.

Is the absence of weather-strip on the door a required reporting deficiency?

Yes, Section 535.228(f)(2)(E)(i) requires inspectors to report deficiencies in weather stripping.

I wish to file a complaint with TREC regarding a home inspector. What must I do?

TREC cannot accept unsigned email or oral complaints against inspectors. All complaints must be in writing and signed by the person making the complaint. Any person may file a complaint whether or not they are a party to the inspection transaction. The TREC website contains a complaint form that may be downloaded, signed and either faxed, scanned and emailed, or mailed in. You may also submit a signed letter outlining your complaint issues and including copies of relevant documentation (such as repair estimates, receipts, and other inspection reports) or photographs. Please do not send original documents as they will not be returned to you.

Is the presence of a gas shut off valve that requires a tool to turn off deficient?

Question is not clear. Some gas shut off valves are safety or emergency shut off devices and some are not. As the type of valve in question is not defined, no answer can be provided.

Inspectors are not required to inspect anything buried, hidden, latent, or concealed. Accordingly, the requirement that inspectors report deficiencies in installed gutter and downspout systems applies only to visible deficiencies in above-ground gutter and downspout systems and not to underground drain piping, cisterns, or other buried components. Furthermore, there is no requirement that inspectors test gutters or downspouts (by pouring water into them or through other means).

Is the inspector required to report water heaters that are covered with an insulation blanket as obstructed if they did not remove the blanket?

Yes. The Standards of Practice do not address insulating covers or blankets on water heaters. Inspectors are not required to remove water heater covers to inspect the water heater. However, if the cover is not removed, and its presence interferes with the inspection of any part of the water heater, the inspector must advise the client and report the resulting limitations of the inspection in accordance with the departure provision, Section 535.227(b)(5).

While this configuration does not comport with current codes, the Standards of Practice do not require inspectors to inspect to today’s code. A single drain line for a temperature/pressure relief valve and the pan is not required to be reported as a deficiency.

I think my inspector was negligent in performing the inspection. My brother-in-law says I might be able to recover a judgment. Do I have to file a complaint first?

Disciplinary action by TREC is not a prerequisite for pursuing a lawsuit against a license holder. Your rights against the license holder may be subject to a two-year statute of limitations. You should consult with a private attorney to determine whether you have a claim and what deadlines may apply to your claim.

What is the definition of an “accepted industry practice”?

The definition of “accepted industry practice” is situation-specific and may depend on the context in which the question is being asked. We are unable to provide a general definition.

I am licensed as a real estate sales agent and as a professional home inspector. Can my broker's real estate office offer my inspection services to their clients?

Under Section 1102.303 of the Texas Occupations Code, an inspector may not act in a transaction in the dual capacity of inspector and either (1) broker or sales agent or (2) an undisclosed principal. Therefore, it would violate Section 1102.303 for you to inspect any property your broker has listed or where you were personally involved. Under Rule 535.156, a real estate license holder has a duty to disclose to a client any relationship the license holder has with an inspector performing an inspection on property that is the subject of a transaction involving the license holder. If you were to perform an inspection in connection with a transaction in which your broker was involved, your broker would need to disclose your relationship (as the broker’s sponsored agent), and if you were paid or received compensation or anything of value from anyone in your office in connection with the inspection, you would also need to disclose this fact and obtain the client’s prior permission.

Does TREC consider a roof with roofing felt ending short of the drip edge and the rake not overlapped over the drip edge a required reporting deficiency? If yes, is the inspector required to inspect 100% of the materials under the edge of the roof? If no, is the inspector allowed to inspect in a representative manner?

Section 535.228(c)(3)(D) of the Standards of Practice requires inspectors to report as deficient deficiencies in flashing details. Drip and rake edge flashing materials are recommended by most shingle manufacturers but are not required. If installed and if visible, the installation described in your question is required to be reported as a deficiency. However, the inspector is not required to inspect every inch of the material under the roof and may “spot check” for this condition.

Can I perform mold inspections under my TREC inspector license?

 No. The Texas Department of State Health Services regulates mold inspections. You can contact them at www.dshs.texas.gov/mold for information on the requirements to obtain a license to inspect for mold.

Is the inspector required to be report the mere presence of an FPE panel as deficient? 2. Is the inspector required to warn or advise of the alleged risks if TREC determines the panel is not required to be reported as deficient?

No. The standards of practice do not address this condition.

Yes. The specific requirement to report the deficiency takes precedence over the general limitation against inspecting an photoelectric sensor.

Is removal of the blanket required by TREC for inspection reasons?

No.

Do the Standards of Practice require inspectors to report as deficient a plumbing fixture that does not fully drain, retaining a slight amount (such as a few cups) of residual water?

 A properly constructed and properly functioning bathtub or shower should drain virtually all water (with the exception of minimal amounts that remain due to the surface tension of the water). Amounts beyond this that remain due to indentations or improper slope in the tub or shower (including shelves, ledges, etc.) constitute deficiencies and should be reported as such.

If a licensed professional inspector is conducting a commercial inspection, is he or she required to use the inspection report form promulgated by TREC? Do the Standards of Practice apply?

A licensed TREC inspector is not required to use the promulgated form or the Standards of Practice when inspecting property other than one to four family residential. A TREC licensed inspector may perform inspections on commercial property, as long as no other laws prohibit the inspector from doing so (please check with the Texas Board of Professional Engineering to determine when a Professional Engineer license is required). All inspections would be subject to §1102.301 et seq. of the License Act (Subchapter G, Prohibited Acts), as well as 22 TAC § 535.220, Professional Conduct and Ethics.

Is the inspector required to inspect to manufacturer requirements, specifications or instructions?

Pursuant to Section 535.227(b)(3)(C)(i) of the Standards of Practice, inspectors are not required to report manufacturer requirements except as specifically required by the Standards. Section 535.227(b)(3)(H) further provides that inspectors are not required to review installation instructions.

If a homeowner wanted to hire a consultant to perform a cursory, major defect visual inspection, including the foundation, roof, plumbing, electrical, and major appliances, would TREC require any written report?

If the inspection you are proposing relates to a purchase or sale transaction, then TREC's Standards of Practice would apply, and a written report would be required. If the inspection you are proposing is not in anticipation of a purchase or sale, then TREC's requirements would not apply, and the parameters of the inspection would be governed by the agreement between the inspector and his or her client. For further information, please see Sections 1102.001 and 1102.002 of the Texas Occupations Code and Rule 535.223.

Is the inspector required by the Standards to state or explain a condition as a hazard to the consumer?

It is up to the “reasonable judgment” of the inspector to determine if the situation encountered during the inspection is or is not a hazard for the inspector’s client.

As a licensed inspector in the State of Texas, am I supposed to charge a sales tax on the amount of my inspection fee?

TREC only handles the licensing and discipline of real estate inspectors, you would need to contact the state agency in charge of collecting state sales tax which is the Texas Comptroller of Public Accounts. The website for that agency is www.comptroller.texas.gov and their toll free number is 800.252.5555.

Inspectors are not required to report the presence of transite pipe as a deficiency.

Is a water heater covered by an insulation cover deficient and a required reporting item?

No.

Do the Standards of Practice require inspectors to report as deficient the lack of a dishwasher power receptacle in an adjacent cabinet (for example, under a kitchen sink)?

No.

As a licensed inspector I would like to advertise that my company performs wood destroying insect inspections. Neither I nor anyone in my company is a licensed wood destroying insect inspector, but we recommend or provide one if requested by the client.

 Under inspector advertising Rule 535.221, an inspector may not engage in false or misleading advertising. Including such information in your advertisement could be construed to be misleading in that a consumer may believe that you or members of your company are licensed to inspect for wood-destroying insects. Additionally, such advertising may also be in violation of the Structural Pest Control Service advertising rules.

Is a starter course tab that is not sealed material, deficient and a required reporting item per TREC?

We assume you are referring to composition shingle roofing. Section 535.228(c)(3) of the Standards of Practice do require inspectors to report as a deficiency a starter course tab that is not sealed material. However, it is important to keep in mind that fastening of shingles is required to be checked by random sampling, so this condition is only required to be reported as identified though such sampling.

What requirements does TREC impose on inspectors/consultants who perform maintenance consultations?

TREC's jurisdiction over real estate inspections is limited to inspections performed for a buyer or seller of real property in connection with a transaction.

The answer to the first question is “No”. The standards of practice are not based on a specific requirement such as those promulgated by model building codes. The requirements for emergency escape and rescue openings in sleeping rooms and the sill heights and sizes of the emergency escape openings in sleeping rooms have varied through the years. The inspector must use “reasonable judgment” in determining if the emergency escape and rescue openings are sufficient for the intended purpose of the openings for the inspector’s client. In response to the 2nd question, an inspector must keep in mind that his role is primarily to document the condition of the home at the time of the inspection per §535.227(b)(1). An inspector is not required to recommend “fixes”.  

The answer to the first question is “No”. The standards of practice are not based on a specific requirement such as those promulgated by model building codes. The requirements for emergency escape and rescue openings in sleeping rooms and the sill heights and sizes of the emergency escape openings in sleeping rooms have varied through the years. The inspector must use “reasonable judgment” in determining if the emergency escape and rescue openings are sufficient for the intended purpose of the openings for the inspector’s client. In response to the 2nd question, an inspector must keep in mind that his role is primarily to document the condition of the home at the time of the inspection per §535.227(b)(1). An inspector is not required to recommend “fixes”. 

Is a receptacle on a garage ceiling that is not GFCI protected deficient and a required reporting item per TREC?

Pursuant to Section 535.229(b)(3)(A)(ii), a garage receptacle that does not have GFCI protection is deficient and must be reported as such. Note, however, that the Inspector Committee may consider a change to the Standards to create an exception for garage ceiling receptacles serving garage door openers.

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.

I am a licensed professional inspector. I am also a licensed real estate sales agent. May I both inspect the home for and sell to the same person?

No. The Texas Occupations Code, Real Estate Inspectors, Chapter 1102, §1102.303 specifically prohibits an inspector from acting in the capacity of an inspector and real estate agent in the same transaction.

Are inspectors required to mark and or comment as deficient the absence of tamper resistant receptacles?

No. The Standards of Practice do not address tamper-resistant receptacles.

Do the Standards of Practice require inspectors to report double-tapped neutral wires on a panel box terminal as deficient?

Yes, double-tapped grounded conductors (neutrals) are a deficiency and must be reported as such, unless otherwise approved and listed by the manufacturer.

Is the absence of combustion air in the bottom of the closet a required reporting deficiency? Is a screen combustion air opening a required reporting deficiency? Is the proximity of the return to the gas fired appliances a required reporting deficiency?

Section 535.230(2)(J)(vi)(I)of the Standards of Practice requires inspectors to report as deficient, in gas HVAC units, deficiencies in combustion, and dilution air. None of the issues you listed would necessarily be required to be reported as deficiencies; this determination depends on several factors, such as the design of the system.

1. Is the definition of accessible, as applied to gas appliance connections, left to the reasonable judgment of the inspector? 2. Are gas ranges, built-in wall ovens, or clothes dryers considered to be large, heavy, fragile objects which could be damaged or cause damage while being moved, and an undue hazard and risk to the inspector? 3. Is the inspector required to comment on or report as deficient those gas appliance shut-off valves and connectors not visible or accessible without moving the gas appliances? 4. Is olfactory detection of methane/natural gas odorant the only reasonable method of discovering gas leaks when the connectors are not accessible? 5. Is observance of gas shut-off valves and connections with a digital camera placed behind or under appliances considered a reasonable method for discovering deficiencies in inaccessible areas?

Pursuant to Section 535.227(a)(1) of the Standards of Practice, inspectors are not required to move appliances in order to inspect behind them. However, it is often possible to locate gas shut-off valves either behind or near appliances (such as in the cabinet next to the range). If a gas shut-off valve cannot be located, this should be reported. As the question suggests, it is sometimes also possible to use a digital camera to “see” in areas that are not otherwise accessible and there are multiple means of detection of gas leaks in existence, such as through the use of hand held detectors (however, these would be considered specialized tools and are not required to be used in performing inspections).

Is a hand rail that is not continuously deficient a required reporting item per TREC?

Section 535.228(h)(1)(B) of the Standards of Practice requires inspectors to report deficiencies in steps, stairways, landings, guardrails, and handrails as deficient. In some circumstances, a break in a handrail would be considered a deficiency; however, this would depend on the specific design of a particular set of stairs (e.g., a landing in the middle of a flight of stairs would not be considered deficient simply because it lacked a continuous handrail).

 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.

Is it true that home inspectors licensed in Texas, cannot inspect plumbing in a home nor report plumbing deficiencies in the TREC inspection report? Can the inspector advertise that he inspects plumbing?

 It depends. Under the Standards of Practice found in Rules 535.227 - 535.233, a home inspector is required to perform a visual check of plumbing fixtures and associated items and report as in need of repair deficiencies in the type and condition of all accessible and visible water supply and waste-water and vent pipes, as well as others listed in Rule 535.231. Please see the Texas State Board of Plumbing Examiners (TSBPE) website to determine whether any of your activities may be in violation of their statutes or rules governing plumbers, such as advertising that you specifically inspect aspects of plumbing systems that may require a license from the TSBPE. Also, please review the advertising rule for inspectors found at Rule 535.221.

Is the absence of a dirt or drip leg, 1. a deficiency? 2. a required reporting item? 3. unsafe?

No. The SOP does not address the absence of a “trap” in a gas line. Please note that the Texas Real Estate Commission does not have authority to declare conditions as “safe” or “unsafe.”

Is a TREC inspector required to report the presence of CSST as a deficiency? Is the TREC inspector required to inform the client of the CSST litigation history?

The mere presence of corrugated stainless steel tubing (CSST) is not, in itself, required to be reported as a deficiency, nor are inspectors required to notify the client of the litigation history or the risks associated with CSST.

What are inspectors required to report regarding gas supply lines?

Section 535.231(a)(2)(E)(ix) requires inspectors to report deficiencies in the condition of the gas distribution system. Section 535.231(a)(3)(D)(iii) does not require inspectors to inspect inaccessible gas supply system components for leaks. Section 535.231(a)(3)(A) states that inspectors are not required to operate any main, branch, or shut-off valves.

Real Estate Inspector

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.

Does TREC require the use of a “contract” for inspections which would outline the responsibilities of the parties to the contract or have a form inspectors can use?

 No. TREC does not require a pre-inspection or employment contract to be signed by the parties to the inspection. Inspectors are free to use or not use a contract. You may want to have a private attorney create a contract for you, or you may check with some of the inspector trade associations to see if they provide templates of pre-inspection contracts.

Is observance of gas shut-off valves and connections with a digital camera placed behind or under appliances considered a reasonable method for discovering deficiencies in inaccessible areas?

Pursuant to Section 535.227(a)(1) of the Standards of Practice, inspectors are not required to move appliances in order to inspect behind them. However, it is often possible to locate gas shut-off valves either behind or near appliances (such as in the cabinet next to the range). If a gas shut-off valve cannot be located, this should be reported. As the question suggests, it is sometimes also possible to use a digital camera to “see” in areas that are not otherwise accessible and there are multiple means of detection of gas leaks in existence, such as through the use of hand held detectors (however, these would be considered specialized tools and are not required to be used in performing inspections).

What level of precision is expected for the “approximation” of average insulation depth?

Section 535.228(d)(1)(B) requires an inspector to report “approximate average depth of attic insulation.” We are unable to prescribe a certain "level of precision” that would satisfy this requirement; any of the examples you presented would satisfy the requirement to report the depth of insulation, as long as they accurately reflect the conditions.

Is the inspector required to inspect a water metering device to determine if a leak may exist? Is the inspector required to perform any inspection of the meter?

Pursuant to Section 535.227(b)(3)(A)(vi) of the Standards of Practice, an inspector is not required to inspect or test metering devices.

Is a keyed deadbolt on the interior of an exterior egress door deficient and a required reporting item per TREC?

The Standards of Practice do not require double-cylinder deadbolts to be reported as deficient unless such a deadbolt would impede functional emergency escape from a sleeping room.

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.

On my inspection report, the inspector reported certain things in the house as “safety hazards” or “code violations”. Can TREC give me information about what codes the inspector is referring to?

There are many different codes that can figure into the construction of a house, depending on when it was built and local amendments. TREC does not require inspectors to inspect to any of the various building codes and cannot assist you in determining what code provisions were applied in a particular situation. Instead, TREC has established Standards of Practice for inspectors to follow. [Rule 535.227-535.233] However, an inspector is free to inspect to a higher standard (such as to various codes or based on recognized safety hazards), as long as they do so competently. If you have questions about your inspection report, you should ask your inspector for the basis of his statement. You may also wish to contact your local code enforcement authority for more information about relevant codes.

Is olfactory detection of methane/natural gas odorant the only reasonable method of discovering gas leaks when the connectors are not accessible?

 Pursuant to Section 535.227(a)(1) of the Standards of Practice, inspectors are not required to move appliances in order to inspect behind them. However, it is often possible to locate gas shut-off valves either behind or near appliances (such as in the cabinet next to the range). If a gas shut-off valve cannot be located, this should be reported. As the question suggests, it is sometimes also possible to use a digital camera to “see” in areas that are not otherwise accessible and there are multiple means of detection of gas leaks in existence, such as through the use of hand held detectors (however, these would be considered specialized tools and are not required to be used in performing inspections).

Is wrinkled loose carpet a defect and required reporting item per TREC? 2. Presuming an upstairs floor or the ceiling below does not exhibit obvious evidence of failure, is a squeaky floor a defect and required reporting item per TREC?

Section 535.228(e)(3)(A) of the Standards of Practice states that inspectors are not required to report cosmetic damage or the condition of floor, wall, or ceiling coverings. Neither loose carpet nor floor squeaks, without further evidence of deficient conditions, is required to be reported as deficient.

Is the inspector required to determine the presence of Chinese drywall? Is the inspector required to report the symptoms of Chinese drywall? Is the inspector required to warn of the risk of Chinese drywall?

Pursuant to the general limitations in the Standards of Practice, inspectors are not required to determine the presence of “Chinese drywall” or to report its symptoms or risks. As an example, if corrosion to copper tubing lines or copper wires were found, that could in the opinion of the inspector constitute a deficiency, the inspector is not required to determine or report the cause of the corrosion, such as from “Chinese drywall."

Is the presence of carpet on an attached garage floor deficient and a required reporting item per TREC?

The presence of carpet in a garage is not required to be reported as a deficiency.

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.

How do I change my business physical address?

Go online to change your business physical address at no cost.  If you submit the change of address form by mail, you must include the paper processing fee.

It appears that the inspector who inspected my home before my purchase missed major termite infestation. The damage from the termites has cost me thousands of dollars to repair. Shouldn’t the inspector have noted this problem on his report?

In Texas, any person who reports on wood destroying insects in a home must be licensed by the state as a wood destroying insect inspector. These licenses are issued by the Texas Structural Pest Control Service of the Texas Department of Agriculture at www.texasagriculture.gov. Some TREC licensed home inspectors are also licensed wood destroying insect inspectors, and therefore, may inspect a home for termites, etc. if hired for that purpose. However, under the home inspector license issued by TREC, the inspector MAY NOT comment on whether termite infestations exist. They should comment on visible damage regardless of the underlying cause and note it as a deficiency on their report, but may not assess that the damage was specifically caused by wood destroying insects.

Is the inspector required to comment on or report as deficient those gas appliance shut-off valves and connectors not visible or accessible without moving the gas appliances?

 Pursuant to Section 535.227(a)(1) of the Standards of Practice, inspectors are not required to move appliances in order to inspect behind them. However, it is often possible to locate gas shut-off valves either behind or near appliances (such as in the cabinet next to the range). If a gas shut-off valve cannot be located, this should be reported. As the question suggests, it is sometimes also possible to use a digital camera to “see” in areas that are not otherwise accessible and there are multiple means of detection of gas leaks in existence, such as through the use of hand held detectors (however, these would be considered specialized tools and are not required to be used in performing inspections).

Is the absence of gutters a defect and required reporting item per TREC?

No. Unless specifically indicated otherwise, the Standards of Practice only address items that are present at the time of the inspection. If gutters are present, they are required to be inspected under §535.228(b)(1)(C).

Do the Standards of Practice require inspectors to comment on the way a gas pipe enters a crawl space?

The Standards of Practice require only that the pipe entry be reported as deficient when the gas piping is concealed in a duct, plenum, or chase. See Section 535.230(d)(4).

How shall an inspector ascertain with any degree of accuracy if the fire separation between a residence and its attached garage is in place?

The Standards of Practice require inspectors to perform a visual inspection. If it is not visibly apparent whether proper fire separation is present, the inspector must make clear to the client that he or she was not able to ascertain whether proper fire separation was in place.

Lack of weep holes is only required to be reported as a deficiency when there is visible evidence of water penetration or a structural issue that may be related to the lack of weep holes.

I recently purchased an older home that was inspected before the purchase. After living in the home a few weeks, the dishwasher started leaking and had to be replaced. Shouldn’t the inspector have told me this unit was about to fail?

Mechanical components like dishwashers can and will break down. A home inspection tells you the condition of the component at the time of the home inspection. The inspector is not required to determine life expectancy of any system or component. [Rule 535.227(b)(3)(C)(i)]

Are gas ranges, built-in wall ovens, or clothes dryers considered to be large, heavy, fragile objects which could be damaged or cause damage while being moved, and an undue hazard and risk to the inspector?

Pursuant to Section 535.227(a)(1) of the Standards of Practice, inspectors are not required to move appliances in order to inspect behind them. However, it is often possible to locate gas shut-off valves either behind or near appliances (such as in the cabinet next to the range). If a gas shut-off valve cannot be located, this should be reported. As the question suggests, it is sometimes also possible to use a digital camera to “see” in areas that are not otherwise accessible and there are multiple means of detection of gas leaks in existence, such as through the use of hand held detectors (however, these would be considered specialized tools and are not required to be used in performing inspections).

Can a licensed inspector perform a hydrostatic test?

No, only a licensed plumber may perform a hydrostatic test on a system within a home.

Is the absence of an anti-entrapment cover in a spa deficient and a required reporting item per TREC? 2. Is the presence of a single drain or suction opening in a pool spa deficient and a required reporting item per TREC?

The absence of an anti-entrapment cover in a spa is not a required reporting item. Section 535.233(2)(B)(i), however, requires an inspector to report as deficient the presence of a single blockable main drain.

Do the Standards of Practice require inspectors to report copper gas lines as deficient?

Inspectors are not required to determine utility sources or to research codes and ordinances related to this issue. As copper gas line material is only a concern in areas where there may be corrosive additives in the gas supply, the presence of copper gas line material is not required to be reported as deficient.

I am not currently performing inspections, but I'd like to maintain my license. Is there a way for me to do that without going to the expense of obtaining insurance?

An inspector may request inactive status in writing at any time. An inspector who meets all other renewal requirements but does not show proof of insurance will receive an inactive license (which does not permit the inspector to perform inspections). To become active, a professional inspector would need to send in the Return to Active Status form (or, for apprentice or real estate inspectors, the sponsorship form) along with the applicable fee and the required proof of insurance.

Is the inspector required to inspect to trade or industry association standards? For example, ASTM, UL or ARMA?

 Inspectors are not required to inspect to trade or industry association standards. However, an inspector who advertises or represents that he or she will inspect to a higher standard could be subject to disciplinary action for failure to do so.

Do I have any recourse against the inspector for failing to note on his report that there was a gas leak outside the home due to a corroded gas line?

Probably not. TREC licensed inspectors are required to follow Standards of Practice when inspecting property. These may be found on our website about Rules Governing Inspectors. The Standards of Practice do not require an inspector to dig up gas lines in order to determine their condition. They are only required to conduct a visual inspection of the property, and buried gas lines are not required to be inspected.

Is the definition of accessible, as applied to gas appliance connections, left to the reasonable judgment of the inspector?

Pursuant to Section 535.227(a)(1) of the Standards of Practice, inspectors are not required to move appliances in order to inspect behind them. However, it is often possible to locate gas shut-off valves either behind or near appliances (such as in the cabinet next to the range). If a gas shut-off valve cannot be located, this should be reported. As the question suggests, it is sometimes also possible to use a digital camera to “see” in areas that are not otherwise accessible and there are multiple means of detection of gas leaks in existence, such as through the use of hand held detectors (however, these would be considered specialized tools and are not required to be used in performing inspections).

The lack of a damper clamp is required to be reported as a deficiency when a gas appliance or artificial gas logs (but not merely a log lighter pipe) is present. The Standards of Practice do not establish a minimum distance that the clamp should hold the damper open

Is a corroded bathroom fixture that remains operable a defect and required reporting item per TREC?

Purely cosmetic corrosion is not required to be reported as a deficiency.

The Standards of Practice require inspectors to report as deficient the lack of exhaust ventilators in required areas. What are the required areas for exhaust ventilators?

At a minimum, bathrooms and water closets that that do not have an operative window must be reported as deficient if they lack an exhaust fan that vents to outside air.

As an inspector, when do I have to show proof of E&O insurance?

A Certificate of Insurance form (promulgated by TREC), signed by the insurance agent, must be filed with TREC at the time the license is issued and with each renewal of the license. In addition, an inspector must retain sufficient records of professional liability insurance coverage, or any other insurance that provides coverage for violations of Subchapter G of Chapter 1102, to document to the commission continuous coverage for the preceding two year license period.

Is the inspector required by the SoP to be knowledgeable of local requirements?

Pursuant to Section 535.227(b)(3)(C)(i), inspectors are not required to determine code compliance, utility sources, or regulatory requirements except as specifically required by the standards.

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.

Is the absence of weather-strip on the door a required reporting deficiency?

Yes, Section 535.228(f)(2)(E)(i) requires inspectors to report deficiencies in weather stripping.

I wish to file a complaint with TREC regarding a home inspector. What must I do?

TREC cannot accept unsigned email or oral complaints against inspectors. All complaints must be in writing and signed by the person making the complaint. Any person may file a complaint whether or not they are a party to the inspection transaction. The TREC website contains a complaint form that may be downloaded, signed and either faxed, scanned and emailed, or mailed in. You may also submit a signed letter outlining your complaint issues and including copies of relevant documentation (such as repair estimates, receipts, and other inspection reports) or photographs. Please do not send original documents as they will not be returned to you.

Is the presence of a gas shut off valve that requires a tool to turn off deficient?

Question is not clear. Some gas shut off valves are safety or emergency shut off devices and some are not. As the type of valve in question is not defined, no answer can be provided.

Inspectors are not required to inspect anything buried, hidden, latent, or concealed. Accordingly, the requirement that inspectors report deficiencies in installed gutter and downspout systems applies only to visible deficiencies in above-ground gutter and downspout systems and not to underground drain piping, cisterns, or other buried components. Furthermore, there is no requirement that inspectors test gutters or downspouts (by pouring water into them or through other means).

Is the inspector required to report water heaters that are covered with an insulation blanket as obstructed if they did not remove the blanket?

Yes. The Standards of Practice do not address insulating covers or blankets on water heaters. Inspectors are not required to remove water heater covers to inspect the water heater. However, if the cover is not removed, and its presence interferes with the inspection of any part of the water heater, the inspector must advise the client and report the resulting limitations of the inspection in accordance with the departure provision, Section 535.227(b)(5).

While this configuration does not comport with current codes, the Standards of Practice do not require inspectors to inspect to today’s code. A single drain line for a temperature/pressure relief valve and the pan is not required to be reported as a deficiency.

I think my inspector was negligent in performing the inspection. My brother-in-law says I might be able to recover a judgment. Do I have to file a complaint first?

Disciplinary action by TREC is not a prerequisite for pursuing a lawsuit against a license holder. Your rights against the license holder may be subject to a two-year statute of limitations. You should consult with a private attorney to determine whether you have a claim and what deadlines may apply to your claim.

What is the definition of an “accepted industry practice”?

The definition of “accepted industry practice” is situation-specific and may depend on the context in which the question is being asked. We are unable to provide a general definition.

I am licensed as a real estate sales agent and as a professional home inspector. Can my broker's real estate office offer my inspection services to their clients?

Under Section 1102.303 of the Texas Occupations Code, an inspector may not act in a transaction in the dual capacity of inspector and either (1) broker or sales agent or (2) an undisclosed principal. Therefore, it would violate Section 1102.303 for you to inspect any property your broker has listed or where you were personally involved. Under Rule 535.156, a real estate license holder has a duty to disclose to a client any relationship the license holder has with an inspector performing an inspection on property that is the subject of a transaction involving the license holder. If you were to perform an inspection in connection with a transaction in which your broker was involved, your broker would need to disclose your relationship (as the broker’s sponsored agent), and if you were paid or received compensation or anything of value from anyone in your office in connection with the inspection, you would also need to disclose this fact and obtain the client’s prior permission.

Does TREC consider a roof with roofing felt ending short of the drip edge and the rake not overlapped over the drip edge a required reporting deficiency? If yes, is the inspector required to inspect 100% of the materials under the edge of the roof? If no, is the inspector allowed to inspect in a representative manner?

Section 535.228(c)(3)(D) of the Standards of Practice requires inspectors to report as deficient deficiencies in flashing details. Drip and rake edge flashing materials are recommended by most shingle manufacturers but are not required. If installed and if visible, the installation described in your question is required to be reported as a deficiency. However, the inspector is not required to inspect every inch of the material under the roof and may “spot check” for this condition.

Can I perform mold inspections under my TREC inspector license?

 No. The Texas Department of State Health Services regulates mold inspections. You can contact them at www.dshs.texas.gov/mold for information on the requirements to obtain a license to inspect for mold.

Is the inspector required to be report the mere presence of an FPE panel as deficient? 2. Is the inspector required to warn or advise of the alleged risks if TREC determines the panel is not required to be reported as deficient?

No. The standards of practice do not address this condition.

Yes. The specific requirement to report the deficiency takes precedence over the general limitation against inspecting an photoelectric sensor.

Is removal of the blanket required by TREC for inspection reasons?

No.

Do the Standards of Practice require inspectors to report as deficient a plumbing fixture that does not fully drain, retaining a slight amount (such as a few cups) of residual water?

 A properly constructed and properly functioning bathtub or shower should drain virtually all water (with the exception of minimal amounts that remain due to the surface tension of the water). Amounts beyond this that remain due to indentations or improper slope in the tub or shower (including shelves, ledges, etc.) constitute deficiencies and should be reported as such.

If a licensed professional inspector is conducting a commercial inspection, is he or she required to use the inspection report form promulgated by TREC? Do the Standards of Practice apply?

A licensed TREC inspector is not required to use the promulgated form or the Standards of Practice when inspecting property other than one to four family residential. A TREC licensed inspector may perform inspections on commercial property, as long as no other laws prohibit the inspector from doing so (please check with the Texas Board of Professional Engineering to determine when a Professional Engineer license is required). All inspections would be subject to §1102.301 et seq. of the License Act (Subchapter G, Prohibited Acts), as well as 22 TAC § 535.220, Professional Conduct and Ethics.

Is the inspector required to inspect to manufacturer requirements, specifications or instructions?

Pursuant to Section 535.227(b)(3)(C)(i) of the Standards of Practice, inspectors are not required to report manufacturer requirements except as specifically required by the Standards. Section 535.227(b)(3)(H) further provides that inspectors are not required to review installation instructions.

If a homeowner wanted to hire a consultant to perform a cursory, major defect visual inspection, including the foundation, roof, plumbing, electrical, and major appliances, would TREC require any written report?

If the inspection you are proposing relates to a purchase or sale transaction, then TREC's Standards of Practice would apply, and a written report would be required. If the inspection you are proposing is not in anticipation of a purchase or sale, then TREC's requirements would not apply, and the parameters of the inspection would be governed by the agreement between the inspector and his or her client. For further information, please see Sections 1102.001 and 1102.002 of the Texas Occupations Code and Rule 535.223.

Is the inspector required by the Standards to state or explain a condition as a hazard to the consumer?

It is up to the “reasonable judgment” of the inspector to determine if the situation encountered during the inspection is or is not a hazard for the inspector’s client.

As a licensed inspector in the State of Texas, am I supposed to charge a sales tax on the amount of my inspection fee?

TREC only handles the licensing and discipline of real estate inspectors, you would need to contact the state agency in charge of collecting state sales tax which is the Texas Comptroller of Public Accounts. The website for that agency is www.comptroller.texas.gov and their toll free number is 800.252.5555.

Inspectors are not required to report the presence of transite pipe as a deficiency.

Is a water heater covered by an insulation cover deficient and a required reporting item?

No.

Do the Standards of Practice require inspectors to report as deficient the lack of a dishwasher power receptacle in an adjacent cabinet (for example, under a kitchen sink)?

No.

As a licensed inspector I would like to advertise that my company performs wood destroying insect inspections. Neither I nor anyone in my company is a licensed wood destroying insect inspector, but we recommend or provide one if requested by the client.

 Under inspector advertising Rule 535.221, an inspector may not engage in false or misleading advertising. Including such information in your advertisement could be construed to be misleading in that a consumer may believe that you or members of your company are licensed to inspect for wood-destroying insects. Additionally, such advertising may also be in violation of the Structural Pest Control Service advertising rules.

Is a starter course tab that is not sealed material, deficient and a required reporting item per TREC?

We assume you are referring to composition shingle roofing. Section 535.228(c)(3) of the Standards of Practice do require inspectors to report as a deficiency a starter course tab that is not sealed material. However, it is important to keep in mind that fastening of shingles is required to be checked by random sampling, so this condition is only required to be reported as identified though such sampling.

What requirements does TREC impose on inspectors/consultants who perform maintenance consultations?

TREC's jurisdiction over real estate inspections is limited to inspections performed for a buyer or seller of real property in connection with a transaction.

The answer to the first question is “No”. The standards of practice are not based on a specific requirement such as those promulgated by model building codes. The requirements for emergency escape and rescue openings in sleeping rooms and the sill heights and sizes of the emergency escape openings in sleeping rooms have varied through the years. The inspector must use “reasonable judgment” in determining if the emergency escape and rescue openings are sufficient for the intended purpose of the openings for the inspector’s client. In response to the 2nd question, an inspector must keep in mind that his role is primarily to document the condition of the home at the time of the inspection per §535.227(b)(1). An inspector is not required to recommend “fixes”.  

The answer to the first question is “No”. The standards of practice are not based on a specific requirement such as those promulgated by model building codes. The requirements for emergency escape and rescue openings in sleeping rooms and the sill heights and sizes of the emergency escape openings in sleeping rooms have varied through the years. The inspector must use “reasonable judgment” in determining if the emergency escape and rescue openings are sufficient for the intended purpose of the openings for the inspector’s client. In response to the 2nd question, an inspector must keep in mind that his role is primarily to document the condition of the home at the time of the inspection per §535.227(b)(1). An inspector is not required to recommend “fixes”. 

Is a receptacle on a garage ceiling that is not GFCI protected deficient and a required reporting item per TREC?

Pursuant to Section 535.229(b)(3)(A)(ii), a garage receptacle that does not have GFCI protection is deficient and must be reported as such. Note, however, that the Inspector Committee may consider a change to the Standards to create an exception for garage ceiling receptacles serving garage door openers.

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.

I am a licensed professional inspector. I am also a licensed real estate sales agent. May I both inspect the home for and sell to the same person?

No. The Texas Occupations Code, Real Estate Inspectors, Chapter 1102, §1102.303 specifically prohibits an inspector from acting in the capacity of an inspector and real estate agent in the same transaction.

Are inspectors required to mark and or comment as deficient the absence of tamper resistant receptacles?

No. The Standards of Practice do not address tamper-resistant receptacles.

Do the Standards of Practice require inspectors to report double-tapped neutral wires on a panel box terminal as deficient?

Yes, double-tapped grounded conductors (neutrals) are a deficiency and must be reported as such, unless otherwise approved and listed by the manufacturer.

Is the absence of combustion air in the bottom of the closet a required reporting deficiency? Is a screen combustion air opening a required reporting deficiency? Is the proximity of the return to the gas fired appliances a required reporting deficiency?

Section 535.230(2)(J)(vi)(I)of the Standards of Practice requires inspectors to report as deficient, in gas HVAC units, deficiencies in combustion, and dilution air. None of the issues you listed would necessarily be required to be reported as deficiencies; this determination depends on several factors, such as the design of the system.

1. Is the definition of accessible, as applied to gas appliance connections, left to the reasonable judgment of the inspector? 2. Are gas ranges, built-in wall ovens, or clothes dryers considered to be large, heavy, fragile objects which could be damaged or cause damage while being moved, and an undue hazard and risk to the inspector? 3. Is the inspector required to comment on or report as deficient those gas appliance shut-off valves and connectors not visible or accessible without moving the gas appliances? 4. Is olfactory detection of methane/natural gas odorant the only reasonable method of discovering gas leaks when the connectors are not accessible? 5. Is observance of gas shut-off valves and connections with a digital camera placed behind or under appliances considered a reasonable method for discovering deficiencies in inaccessible areas?

Pursuant to Section 535.227(a)(1) of the Standards of Practice, inspectors are not required to move appliances in order to inspect behind them. However, it is often possible to locate gas shut-off valves either behind or near appliances (such as in the cabinet next to the range). If a gas shut-off valve cannot be located, this should be reported. As the question suggests, it is sometimes also possible to use a digital camera to “see” in areas that are not otherwise accessible and there are multiple means of detection of gas leaks in existence, such as through the use of hand held detectors (however, these would be considered specialized tools and are not required to be used in performing inspections).

Is a hand rail that is not continuously deficient a required reporting item per TREC?

Section 535.228(h)(1)(B) of the Standards of Practice requires inspectors to report deficiencies in steps, stairways, landings, guardrails, and handrails as deficient. In some circumstances, a break in a handrail would be considered a deficiency; however, this would depend on the specific design of a particular set of stairs (e.g., a landing in the middle of a flight of stairs would not be considered deficient simply because it lacked a continuous handrail).

Is it true that home inspectors licensed in Texas, cannot inspect plumbing in a home nor report plumbing deficiencies in the TREC inspection report? Can the inspector advertise that he inspects plumbing?

 It depends. Under the Standards of Practice found in Rules 535.227 - 535.233, a home inspector is required to perform a visual check of plumbing fixtures and associated items and report as in need of repair deficiencies in the type and condition of all accessible and visible water supply and waste-water and vent pipes, as well as others listed in Rule 535.231. Please see the Texas State Board of Plumbing Examiners (TSBPE) website to determine whether any of your activities may be in violation of their statutes or rules governing plumbers, such as advertising that you specifically inspect aspects of plumbing systems that may require a license from the TSBPE. Also, please review the advertising rule for inspectors found at Rule 535.221.

Is the absence of a dirt or drip leg, 1. a deficiency? 2. a required reporting item? 3. unsafe?

No. The SOP does not address the absence of a “trap” in a gas line. Please note that the Texas Real Estate Commission does not have authority to declare conditions as “safe” or “unsafe.”

 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.

Is a TREC inspector required to report the presence of CSST as a deficiency? Is the TREC inspector required to inform the client of the CSST litigation history?

The mere presence of corrugated stainless steel tubing (CSST) is not, in itself, required to be reported as a deficiency, nor are inspectors required to notify the client of the litigation history or the risks associated with CSST.

What are inspectors required to report regarding gas supply lines?

Section 535.231(a)(2)(E)(ix) requires inspectors to report deficiencies in the condition of the gas distribution system. Section 535.231(a)(3)(D)(iii) does not require inspectors to inspect inaccessible gas supply system components for leaks. Section 535.231(a)(3)(A) states that inspectors are not required to operate any main, branch, or shut-off valves.

Is an inspector required to determine if a light fixture is approved for its location over a bathtub or shower?

The Standards of Practice do not require inspectors to determine if light fixtures are approved for wet locations or to report such installations as a deficiency.

Professional Inspector

What level of precision is expected for the “approximation” of average insulation depth?

Section 535.228(d)(1)(B) requires an inspector to report “approximate average depth of attic insulation.” We are unable to prescribe a certain "level of precision” that would satisfy this requirement; any of the examples you presented would satisfy the requirement to report the depth of insulation, as long as they accurately reflect the conditions.

Is the inspector required to inspect a water metering device to determine if a leak may exist? Is the inspector required to perform any inspection of the meter?

Pursuant to Section 535.227(b)(3)(A)(vi) of the Standards of Practice, an inspector is not required to inspect or test metering devices.

Is a keyed deadbolt on the interior of an exterior egress door deficient and a required reporting item per TREC?

The Standards of Practice do not require double-cylinder deadbolts to be reported as deficient unless such a deadbolt would impede functional emergency escape from a sleeping room.

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.

On my inspection report, the inspector reported certain things in the house as “safety hazards” or “code violations”. Can TREC give me information about what codes the inspector is referring to?

There are many different codes that can figure into the construction of a house, depending on when it was built and local amendments. TREC does not require inspectors to inspect to any of the various building codes and cannot assist you in determining what code provisions were applied in a particular situation. Instead, TREC has established Standards of Practice for inspectors to follow. [Rule 535.227-535.233] However, an inspector is free to inspect to a higher standard (such as to various codes or based on recognized safety hazards), as long as they do so competently. If you have questions about your inspection report, you should ask your inspector for the basis of his statement. You may also wish to contact your local code enforcement authority for more information about relevant codes.

Is olfactory detection of methane/natural gas odorant the only reasonable method of discovering gas leaks when the connectors are not accessible?

 Pursuant to Section 535.227(a)(1) of the Standards of Practice, inspectors are not required to move appliances in order to inspect behind them. However, it is often possible to locate gas shut-off valves either behind or near appliances (such as in the cabinet next to the range). If a gas shut-off valve cannot be located, this should be reported. As the question suggests, it is sometimes also possible to use a digital camera to “see” in areas that are not otherwise accessible and there are multiple means of detection of gas leaks in existence, such as through the use of hand held detectors (however, these would be considered specialized tools and are not required to be used in performing inspections).

Is wrinkled loose carpet a defect and required reporting item per TREC? 2. Presuming an upstairs floor or the ceiling below does not exhibit obvious evidence of failure, is a squeaky floor a defect and required reporting item per TREC?

Section 535.228(e)(3)(A) of the Standards of Practice states that inspectors are not required to report cosmetic damage or the condition of floor, wall, or ceiling coverings. Neither loose carpet nor floor squeaks, without further evidence of deficient conditions, is required to be reported as deficient.

Is the inspector required to determine the presence of Chinese drywall? Is the inspector required to report the symptoms of Chinese drywall? Is the inspector required to warn of the risk of Chinese drywall?

Pursuant to the general limitations in the Standards of Practice, inspectors are not required to determine the presence of “Chinese drywall” or to report its symptoms or risks. As an example, if corrosion to copper tubing lines or copper wires were found, that could in the opinion of the inspector constitute a deficiency, the inspector is not required to determine or report the cause of the corrosion, such as from “Chinese drywall."

Is the presence of carpet on an attached garage floor deficient and a required reporting item per TREC?

The presence of carpet in a garage is not required to be reported as a deficiency.

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.

How do I change my business physical address?

Go online to change your business physical address at no cost.  If you submit the change of address form by mail, you must include the paper processing fee.

It appears that the inspector who inspected my home before my purchase missed major termite infestation. The damage from the termites has cost me thousands of dollars to repair. Shouldn’t the inspector have noted this problem on his report?

In Texas, any person who reports on wood destroying insects in a home must be licensed by the state as a wood destroying insect inspector. These licenses are issued by the Texas Structural Pest Control Service of the Texas Department of Agriculture at www.texasagriculture.gov. Some TREC licensed home inspectors are also licensed wood destroying insect inspectors, and therefore, may inspect a home for termites, etc. if hired for that purpose. However, under the home inspector license issued by TREC, the inspector MAY NOT comment on whether termite infestations exist. They should comment on visible damage regardless of the underlying cause and note it as a deficiency on their report, but may not assess that the damage was specifically caused by wood destroying insects.

Is the inspector required to comment on or report as deficient those gas appliance shut-off valves and connectors not visible or accessible without moving the gas appliances?

 Pursuant to Section 535.227(a)(1) of the Standards of Practice, inspectors are not required to move appliances in order to inspect behind them. However, it is often possible to locate gas shut-off valves either behind or near appliances (such as in the cabinet next to the range). If a gas shut-off valve cannot be located, this should be reported. As the question suggests, it is sometimes also possible to use a digital camera to “see” in areas that are not otherwise accessible and there are multiple means of detection of gas leaks in existence, such as through the use of hand held detectors (however, these would be considered specialized tools and are not required to be used in performing inspections).

Is the absence of gutters a defect and required reporting item per TREC?

No. Unless specifically indicated otherwise, the Standards of Practice only address items that are present at the time of the inspection. If gutters are present, they are required to be inspected under §535.228(b)(1)(C).

Do the Standards of Practice require inspectors to comment on the way a gas pipe enters a crawl space?

The Standards of Practice require only that the pipe entry be reported as deficient when the gas piping is concealed in a duct, plenum, or chase. See Section 535.230(d)(4).

How shall an inspector ascertain with any degree of accuracy if the fire separation between a residence and its attached garage is in place?

The Standards of Practice require inspectors to perform a visual inspection. If it is not visibly apparent whether proper fire separation is present, the inspector must make clear to the client that he or she was not able to ascertain whether proper fire separation was in place.

Lack of weep holes is only required to be reported as a deficiency when there is visible evidence of water penetration or a structural issue that may be related to the lack of weep holes.

I recently purchased an older home that was inspected before the purchase. After living in the home a few weeks, the dishwasher started leaking and had to be replaced. Shouldn’t the inspector have told me this unit was about to fail?

Mechanical components like dishwashers can and will break down. A home inspection tells you the condition of the component at the time of the home inspection. The inspector is not required to determine life expectancy of any system or component. [Rule 535.227(b)(3)(C)(i)]

Are gas ranges, built-in wall ovens, or clothes dryers considered to be large, heavy, fragile objects which could be damaged or cause damage while being moved, and an undue hazard and risk to the inspector?

Pursuant to Section 535.227(a)(1) of the Standards of Practice, inspectors are not required to move appliances in order to inspect behind them. However, it is often possible to locate gas shut-off valves either behind or near appliances (such as in the cabinet next to the range). If a gas shut-off valve cannot be located, this should be reported. As the question suggests, it is sometimes also possible to use a digital camera to “see” in areas that are not otherwise accessible and there are multiple means of detection of gas leaks in existence, such as through the use of hand held detectors (however, these would be considered specialized tools and are not required to be used in performing inspections).

Is the absence of an anti-entrapment cover in a spa deficient and a required reporting item per TREC? 2. Is the presence of a single drain or suction opening in a pool spa deficient and a required reporting item per TREC?

The absence of an anti-entrapment cover in a spa is not a required reporting item. Section 535.233(2)(B)(i), however, requires an inspector to report as deficient the presence of a single blockable main drain.

Do the Standards of Practice require inspectors to report copper gas lines as deficient?

Inspectors are not required to determine utility sources or to research codes and ordinances related to this issue. As copper gas line material is only a concern in areas where there may be corrosive additives in the gas supply, the presence of copper gas line material is not required to be reported as deficient.

I am not currently performing inspections, but I'd like to maintain my license. Is there a way for me to do that without going to the expense of obtaining insurance?

An inspector may request inactive status in writing at any time. An inspector who meets all other renewal requirements but does not show proof of insurance will receive an inactive license (which does not permit the inspector to perform inspections). To become active, a professional inspector would need to send in the Return to Active Status form (or, for apprentice or real estate inspectors, the sponsorship form) along with the applicable fee and the required proof of insurance.

Is the inspector required to inspect to trade or industry association standards? For example, ASTM, UL or ARMA?

 Inspectors are not required to inspect to trade or industry association standards. However, an inspector who advertises or represents that he or she will inspect to a higher standard could be subject to disciplinary action for failure to do so.

Can a licensed inspector perform a hydrostatic test?

No, only a licensed plumber may perform a hydrostatic test on a system within a home.

Do I have any recourse against the inspector for failing to note on his report that there was a gas leak outside the home due to a corroded gas line?

Probably not. TREC licensed inspectors are required to follow Standards of Practice when inspecting property. These may be found on our website about Rules Governing Inspectors. The Standards of Practice do not require an inspector to dig up gas lines in order to determine their condition. They are only required to conduct a visual inspection of the property, and buried gas lines are not required to be inspected.

Is the definition of accessible, as applied to gas appliance connections, left to the reasonable judgment of the inspector?

Pursuant to Section 535.227(a)(1) of the Standards of Practice, inspectors are not required to move appliances in order to inspect behind them. However, it is often possible to locate gas shut-off valves either behind or near appliances (such as in the cabinet next to the range). If a gas shut-off valve cannot be located, this should be reported. As the question suggests, it is sometimes also possible to use a digital camera to “see” in areas that are not otherwise accessible and there are multiple means of detection of gas leaks in existence, such as through the use of hand held detectors (however, these would be considered specialized tools and are not required to be used in performing inspections).

The lack of a damper clamp is required to be reported as a deficiency when a gas appliance or artificial gas logs (but not merely a log lighter pipe) is present. The Standards of Practice do not establish a minimum distance that the clamp should hold the damper open

Is a corroded bathroom fixture that remains operable a defect and required reporting item per TREC?

Purely cosmetic corrosion is not required to be reported as a deficiency.

The Standards of Practice require inspectors to report as deficient the lack of exhaust ventilators in required areas. What are the required areas for exhaust ventilators?

At a minimum, bathrooms and water closets that that do not have an operative window must be reported as deficient if they lack an exhaust fan that vents to outside air.

As an inspector, when do I have to show proof of E&O insurance?

A Certificate of Insurance form (promulgated by TREC), signed by the insurance agent, must be filed with TREC at the time the license is issued and with each renewal of the license. In addition, an inspector must retain sufficient records of professional liability insurance coverage, or any other insurance that provides coverage for violations of Subchapter G of Chapter 1102, to document to the commission continuous coverage for the preceding two year license period.

Is the inspector required by the SoP to be knowledgeable of local requirements?

Pursuant to Section 535.227(b)(3)(C)(i), inspectors are not required to determine code compliance, utility sources, or regulatory requirements except as specifically required by the standards.

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.

I wish to file a complaint with TREC regarding a home inspector. What must I do?

TREC cannot accept unsigned email or oral complaints against inspectors. All complaints must be in writing and signed by the person making the complaint. Any person may file a complaint whether or not they are a party to the inspection transaction. The TREC website contains a complaint form that may be downloaded, signed and either faxed, scanned and emailed, or mailed in. You may also submit a signed letter outlining your complaint issues and including copies of relevant documentation (such as repair estimates, receipts, and other inspection reports) or photographs. Please do not send original documents as they will not be returned to you.

Is the presence of a gas shut off valve that requires a tool to turn off deficient?

Question is not clear. Some gas shut off valves are safety or emergency shut off devices and some are not. As the type of valve in question is not defined, no answer can be provided.

Inspectors are not required to inspect anything buried, hidden, latent, or concealed. Accordingly, the requirement that inspectors report deficiencies in installed gutter and downspout systems applies only to visible deficiencies in above-ground gutter and downspout systems and not to underground drain piping, cisterns, or other buried components. Furthermore, there is no requirement that inspectors test gutters or downspouts (by pouring water into them or through other means).

Is the inspector required to report water heaters that are covered with an insulation blanket as obstructed if they did not remove the blanket?

Yes. The Standards of Practice do not address insulating covers or blankets on water heaters. Inspectors are not required to remove water heater covers to inspect the water heater. However, if the cover is not removed, and its presence interferes with the inspection of any part of the water heater, the inspector must advise the client and report the resulting limitations of the inspection in accordance with the departure provision, Section 535.227(b)(5).

While this configuration does not comport with current codes, the Standards of Practice do not require inspectors to inspect to today’s code. A single drain line for a temperature/pressure relief valve and the pan is not required to be reported as a deficiency.

I think my inspector was negligent in performing the inspection. My brother-in-law says I might be able to recover a judgment. Do I have to file a complaint first?

Disciplinary action by TREC is not a prerequisite for pursuing a lawsuit against a license holder. Your rights against the license holder may be subject to a two-year statute of limitations. You should consult with a private attorney to determine whether you have a claim and what deadlines may apply to your claim.

What is the definition of an “accepted industry practice”?

The definition of “accepted industry practice” is situation-specific and may depend on the context in which the question is being asked. We are unable to provide a general definition.

I am licensed as a real estate sales agent and as a professional home inspector. Can my broker's real estate office offer my inspection services to their clients?

Under Section 1102.303 of the Texas Occupations Code, an inspector may not act in a transaction in the dual capacity of inspector and either (1) broker or sales agent or (2) an undisclosed principal. Therefore, it would violate Section 1102.303 for you to inspect any property your broker has listed or where you were personally involved. Under Rule 535.156, a real estate license holder has a duty to disclose to a client any relationship the license holder has with an inspector performing an inspection on property that is the subject of a transaction involving the license holder. If you were to perform an inspection in connection with a transaction in which your broker was involved, your broker would need to disclose your relationship (as the broker’s sponsored agent), and if you were paid or received compensation or anything of value from anyone in your office in connection with the inspection, you would also need to disclose this fact and obtain the client’s prior permission.

Does TREC consider a roof with roofing felt ending short of the drip edge and the rake not overlapped over the drip edge a required reporting deficiency? If yes, is the inspector required to inspect 100% of the materials under the edge of the roof? If no, is the inspector allowed to inspect in a representative manner?

Section 535.228(c)(3)(D) of the Standards of Practice requires inspectors to report as deficient deficiencies in flashing details. Drip and rake edge flashing materials are recommended by most shingle manufacturers but are not required. If installed and if visible, the installation described in your question is required to be reported as a deficiency. However, the inspector is not required to inspect every inch of the material under the roof and may “spot check” for this condition.

Can I perform mold inspections under my TREC inspector license?

 No. The Texas Department of State Health Services regulates mold inspections. You can contact them at www.dshs.texas.gov/mold for information on the requirements to obtain a license to inspect for mold.

Is the inspector required to be report the mere presence of an FPE panel as deficient? 2. Is the inspector required to warn or advise of the alleged risks if TREC determines the panel is not required to be reported as deficient?

No. The standards of practice do not address this condition.

Yes. The specific requirement to report the deficiency takes precedence over the general limitation against inspecting an photoelectric sensor.

Is removal of the blanket required by TREC for inspection reasons?

No.

Do the Standards of Practice require inspectors to report as deficient a plumbing fixture that does not fully drain, retaining a slight amount (such as a few cups) of residual water?

 A properly constructed and properly functioning bathtub or shower should drain virtually all water (with the exception of minimal amounts that remain due to the surface tension of the water). Amounts beyond this that remain due to indentations or improper slope in the tub or shower (including shelves, ledges, etc.) constitute deficiencies and should be reported as such.

If a licensed professional inspector is conducting a commercial inspection, is he or she required to use the inspection report form promulgated by TREC? Do the Standards of Practice apply?

A licensed TREC inspector is not required to use the promulgated form or the Standards of Practice when inspecting property other than one to four family residential. A TREC licensed inspector may perform inspections on commercial property, as long as no other laws prohibit the inspector from doing so (please check with the Texas Board of Professional Engineering to determine when a Professional Engineer license is required). All inspections would be subject to §1102.301 et seq. of the License Act (Subchapter G, Prohibited Acts), as well as 22 TAC § 535.220, Professional Conduct and Ethics.

Is the inspector required to inspect to manufacturer requirements, specifications or instructions?

Pursuant to Section 535.227(b)(3)(C)(i) of the Standards of Practice, inspectors are not required to report manufacturer requirements except as specifically required by the Standards. Section 535.227(b)(3)(H) further provides that inspectors are not required to review installation instructions.

If a homeowner wanted to hire a consultant to perform a cursory, major defect visual inspection, including the foundation, roof, plumbing, electrical, and major appliances, would TREC require any written report?

If the inspection you are proposing relates to a purchase or sale transaction, then TREC's Standards of Practice would apply, and a written report would be required. If the inspection you are proposing is not in anticipation of a purchase or sale, then TREC's requirements would not apply, and the parameters of the inspection would be governed by the agreement between the inspector and his or her client. For further information, please see Sections 1102.001 and 1102.002 of the Texas Occupations Code and Rule 535.223.

Is the inspector required by the Standards to state or explain a condition as a hazard to the consumer?

It is up to the “reasonable judgment” of the inspector to determine if the situation encountered during the inspection is or is not a hazard for the inspector’s client.

As a licensed inspector in the State of Texas, am I supposed to charge a sales tax on the amount of my inspection fee?

TREC only handles the licensing and discipline of real estate inspectors, you would need to contact the state agency in charge of collecting state sales tax which is the Texas Comptroller of Public Accounts. The website for that agency is www.comptroller.texas.gov and their toll free number is 800.252.5555.

Is the absence of weather-strip on the door a required reporting deficiency?

Yes, Section 535.228(f)(2)(E)(i) requires inspectors to report deficiencies in weather stripping.

Inspectors are not required to report the presence of transite pipe as a deficiency.

Is a water heater covered by an insulation cover deficient and a required reporting item?

No.

Do the Standards of Practice require inspectors to report as deficient the lack of a dishwasher power receptacle in an adjacent cabinet (for example, under a kitchen sink)?

No.

As a licensed inspector I would like to advertise that my company performs wood destroying insect inspections. Neither I nor anyone in my company is a licensed wood destroying insect inspector, but we recommend or provide one if requested by the client.

 Under inspector advertising Rule 535.221, an inspector may not engage in false or misleading advertising. Including such information in your advertisement could be construed to be misleading in that a consumer may believe that you or members of your company are licensed to inspect for wood-destroying insects. Additionally, such advertising may also be in violation of the Structural Pest Control Service advertising rules.

Is a starter course tab that is not sealed material, deficient and a required reporting item per TREC?

We assume you are referring to composition shingle roofing. Section 535.228(c)(3) of the Standards of Practice do require inspectors to report as a deficiency a starter course tab that is not sealed material. However, it is important to keep in mind that fastening of shingles is required to be checked by random sampling, so this condition is only required to be reported as identified though such sampling.

What requirements does TREC impose on inspectors/consultants who perform maintenance consultations?

TREC's jurisdiction over real estate inspections is limited to inspections performed for a buyer or seller of real property in connection with a transaction.

The answer to the first question is “No”. The standards of practice are not based on a specific requirement such as those promulgated by model building codes. The requirements for emergency escape and rescue openings in sleeping rooms and the sill heights and sizes of the emergency escape openings in sleeping rooms have varied through the years. The inspector must use “reasonable judgment” in determining if the emergency escape and rescue openings are sufficient for the intended purpose of the openings for the inspector’s client. In response to the 2nd question, an inspector must keep in mind that his role is primarily to document the condition of the home at the time of the inspection per §535.227(b)(1). An inspector is not required to recommend “fixes”.  

The answer to the first question is “No”. The standards of practice are not based on a specific requirement such as those promulgated by model building codes. The requirements for emergency escape and rescue openings in sleeping rooms and the sill heights and sizes of the emergency escape openings in sleeping rooms have varied through the years. The inspector must use “reasonable judgment” in determining if the emergency escape and rescue openings are sufficient for the intended purpose of the openings for the inspector’s client. In response to the 2nd question, an inspector must keep in mind that his role is primarily to document the condition of the home at the time of the inspection per §535.227(b)(1). An inspector is not required to recommend “fixes”. 

Is a receptacle on a garage ceiling that is not GFCI protected deficient and a required reporting item per TREC?

Pursuant to Section 535.229(b)(3)(A)(ii), a garage receptacle that does not have GFCI protection is deficient and must be reported as such. Note, however, that the Inspector Committee may consider a change to the Standards to create an exception for garage ceiling receptacles serving garage door openers.

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.

I am a licensed professional inspector. I am also a licensed real estate sales agent. May I both inspect the home for and sell to the same person?

No. The Texas Occupations Code, Real Estate Inspectors, Chapter 1102, §1102.303 specifically prohibits an inspector from acting in the capacity of an inspector and real estate agent in the same transaction.

Are inspectors required to mark and or comment as deficient the absence of tamper resistant receptacles?

No. The Standards of Practice do not address tamper-resistant receptacles.

Do the Standards of Practice require inspectors to report double-tapped neutral wires on a panel box terminal as deficient?

Yes, double-tapped grounded conductors (neutrals) are a deficiency and must be reported as such, unless otherwise approved and listed by the manufacturer.

Is the absence of combustion air in the bottom of the closet a required reporting deficiency? Is a screen combustion air opening a required reporting deficiency? Is the proximity of the return to the gas fired appliances a required reporting deficiency?

Section 535.230(2)(J)(vi)(I)of the Standards of Practice requires inspectors to report as deficient, in gas HVAC units, deficiencies in combustion, and dilution air. None of the issues you listed would necessarily be required to be reported as deficiencies; this determination depends on several factors, such as the design of the system.

1. Is the definition of accessible, as applied to gas appliance connections, left to the reasonable judgment of the inspector? 2. Are gas ranges, built-in wall ovens, or clothes dryers considered to be large, heavy, fragile objects which could be damaged or cause damage while being moved, and an undue hazard and risk to the inspector? 3. Is the inspector required to comment on or report as deficient those gas appliance shut-off valves and connectors not visible or accessible without moving the gas appliances? 4. Is olfactory detection of methane/natural gas odorant the only reasonable method of discovering gas leaks when the connectors are not accessible? 5. Is observance of gas shut-off valves and connections with a digital camera placed behind or under appliances considered a reasonable method for discovering deficiencies in inaccessible areas?

Pursuant to Section 535.227(a)(1) of the Standards of Practice, inspectors are not required to move appliances in order to inspect behind them. However, it is often possible to locate gas shut-off valves either behind or near appliances (such as in the cabinet next to the range). If a gas shut-off valve cannot be located, this should be reported. As the question suggests, it is sometimes also possible to use a digital camera to “see” in areas that are not otherwise accessible and there are multiple means of detection of gas leaks in existence, such as through the use of hand held detectors (however, these would be considered specialized tools and are not required to be used in performing inspections).

Is a hand rail that is not continuously deficient a required reporting item per TREC?

Section 535.228(h)(1)(B) of the Standards of Practice requires inspectors to report deficiencies in steps, stairways, landings, guardrails, and handrails as deficient. In some circumstances, a break in a handrail would be considered a deficiency; however, this would depend on the specific design of a particular set of stairs (e.g., a landing in the middle of a flight of stairs would not be considered deficient simply because it lacked a continuous handrail).

Is it true that home inspectors licensed in Texas, cannot inspect plumbing in a home nor report plumbing deficiencies in the TREC inspection report? Can the inspector advertise that he inspects plumbing?

 It depends. Under the Standards of Practice found in Rules 535.227 - 535.233, a home inspector is required to perform a visual check of plumbing fixtures and associated items and report as in need of repair deficiencies in the type and condition of all accessible and visible water supply and waste-water and vent pipes, as well as others listed in Rule 535.231. Please see the Texas State Board of Plumbing Examiners (TSBPE) website to determine whether any of your activities may be in violation of their statutes or rules governing plumbers, such as advertising that you specifically inspect aspects of plumbing systems that may require a license from the TSBPE. Also, please review the advertising rule for inspectors found at Rule 535.221.

Is the absence of a dirt or drip leg, 1. a deficiency? 2. a required reporting item? 3. unsafe?

No. The SOP does not address the absence of a “trap” in a gas line. Please note that the Texas Real Estate Commission does not have authority to declare conditions as “safe” or “unsafe.”

 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.

Is a TREC inspector required to report the presence of CSST as a deficiency? Is the TREC inspector required to inform the client of the CSST litigation history?

The mere presence of corrugated stainless steel tubing (CSST) is not, in itself, required to be reported as a deficiency, nor are inspectors required to notify the client of the litigation history or the risks associated with CSST.

What are inspectors required to report regarding gas supply lines?

Section 535.231(a)(2)(E)(ix) requires inspectors to report deficiencies in the condition of the gas distribution system. Section 535.231(a)(3)(D)(iii) does not require inspectors to inspect inaccessible gas supply system components for leaks. Section 535.231(a)(3)(A) states that inspectors are not required to operate any main, branch, or shut-off valves.

Is an inspector required to determine if a light fixture is approved for its location over a bathtub or shower?

The Standards of Practice do not require inspectors to determine if light fixtures are approved for wet locations or to report such installations 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.

Does TREC require the use of a “contract” for inspections which would outline the responsibilities of the parties to the contract or have a form inspectors can use?

 No. TREC does not require a pre-inspection or employment contract to be signed by the parties to the inspection. Inspectors are free to use or not use a contract. You may want to have a private attorney create a contract for you, or you may check with some of the inspector trade associations to see if they provide templates of pre-inspection contracts.

Is observance of gas shut-off valves and connections with a digital camera placed behind or under appliances considered a reasonable method for discovering deficiencies in inaccessible areas?

Pursuant to Section 535.227(a)(1) of the Standards of Practice, inspectors are not required to move appliances in order to inspect behind them. However, it is often possible to locate gas shut-off valves either behind or near appliances (such as in the cabinet next to the range). If a gas shut-off valve cannot be located, this should be reported. As the question suggests, it is sometimes also possible to use a digital camera to “see” in areas that are not otherwise accessible and there are multiple means of detection of gas leaks in existence, such as through the use of hand held detectors (however, these would be considered specialized tools and are not required to be used in performing inspections).

Residential Service Company

Is the Disclosure of Relationship with Residential Service Company form required for every transaction?

No. This form is required only when a residential service company agrees to pay a license holder for a service provided to or on behalf of the company. The form should indicate which license holders have received or will receive the payment. If a license holder is not receiving a payment from the company, this should be noted as well. Each license holder must sign the form.

A residential service company is paying me a fee to advertise for it. Do I have to disclose that fee to my client and use a TREC form?

Yes and yes. You must also provide the client with the TREC Disclosure of Relationship with Residential Service Company form (RSC-2).

I have a residential service contract and need my toilet repaired. Can TREC help me with that or should I just call a repairman?

No, your contract first requires you to contact the residential service company to request service. They will instruct you on your contract procedure for obtaining repairs. If you have a problem with your residential service company’s response, then you should contact TREC’s residential service ombudsman at (512) 936-3049.

Is a residential service company required to be licensed to sell residential service contracts in Texas?

Yes. See the general information and forms available on the TREC website.

Is a “residential service contract” the same as a “home warranty”?

Yes, both terms refer to the same product.

A residential service contract is part of a transaction but I am not getting paid by the residential service company. Do I still have to use the TREC Disclosure of Relationship with Residential Service Company form (RSC-2)?

No.

Does the use of the TREC Disclosure of Relationship with Residential Service Company form (RSC-2) apply to both sale and lease transactions?

Yes.

Timeshare

I signed a contract to purchase a timeshare interest yesterday. Last night I reconsidered. Can I back out?

Yes. You have to provide the appropriate cancellation notice to the developer before the sixth day after you signed the contract. Consult the contract or the timeshare disclosure statement you received for instructions on how to proceed.

Is a license required to sell a timeshare interest in Texas?

It depends. If the sales agent is an employee of the owner of the timeshare, the employee would not be required to be licensed. [Rule 535.5(d)] Otherwise, the sales agent needs to be licensed

Easement and Right-of-Way Agent

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.

Easement and Right-of-Way Company

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.