Chapter 5. Opening and Closing a Real Estate Brokerage Firm A. OPENING A REAL ESTATE BROKERAGE FIRM POINTS TO CONSIDER WHEN STARTING A BROKERAGE FIRM

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1 Chapter 5 Opening and Closing a Real Estate Brokerage Firm A. OPENING A REAL ESTATE BROKERAGE FIRM POINTS TO CONSIDER WHEN STARTING A BROKERAGE FIRM Once an individual has met the qualifications for a broker license, the next step is to decide whether to activate the license by affiliating with an existing brokerage firm as an associate broker or by starting a new brokerage firm and becoming qualifying broker of the firm. In deciding whether to start a brokerage firm, a licensee faces several important issues beyond obtaining a license from the Commission. The important issues for consideration and resulting actions include: obtaining a business license from the local government; selecting a market area and a specific location for the office in that market area; (c) securing telephone services and furnishings for the office; (d) obtaining proper insurance for the business including an errors and omissions policy; (e) developing a bookkeeping system suited to the firm's needs, IRS requirements, and the Commission's trust account regulations; (f) obtaining a tax identification number from the IRS; (g) obtaining forms for reporting income and withholding and F.I.C.A. taxes to the IRS and workers' compensation for covered employees to the State Labor Department; (h) developing a record-keeping system for contracts and other documents as required by the license law; (i) developing or obtaining sales and listing contracts approved by an attorney; (j) developing employment or independent contractor agreements for licensees affiliating with the firm; (k) planning the nature and scope of the business for specializing in residential sales, property management, commercial sales, or a combination of these markets; (l) deciding whether to organize the firm as a sole proprietorship, a partnership, a limited liability company, or a corporation; (m) developing a plan for advertising the new company and specific properties listed for sale or lease; (n) developing a plan for the orderly recruiting and training of agents for the firm; (o) planning a marketing strategy for the chosen service area; and (p) developing an office agency policy as required by the Brokerage Relationships in Real Estate Transactions Act. O.C.G.A. 10-6A-1 through -16

2 Properly addressing these concerns often requires the assistance of professionals such as attorneys, accountants, and other licensees who operate existing brokerage firms. Simply passing the broker's licensing examination and paying the fee to license a firm is not enough. FORMS OF BUSINESS OWNERSHIP An attorney can advise a broker about the best form of ownership for a new brokerage firm. After making the selection of the ownership form, the broker must follow the appropriate steps to obtain proper licensure with the Commission. SOLE PROPRIETORSHIP - The individual owner must possess a Georgia broker's license or apply for that license at the time of filing to open the firm. The sole proprietor broker must take additional steps as outlined below. (1) Choose a name for the firm. If the trade name of the firm does not include the full name of the sole proprietor, apply to the clerk of the superior court in each county where the proprietorship will conduct business for a certificate of trade name. Attach a copy of that certificate to the application for licensure. For example, "John Doe Realty" or "John Doe, Real Estate Broker" need not be registered in the clerk's office. However, if John Doe wants to conduct business under a name such as "Doe Realty" or "Hometown Realty," then he must register that name with each county clerk's office in which the firm will conduct business before applying to the Commission for a sole proprietor's license. (2) Open a trust account. That account must be a separate, federally insured bank checking account in a bank located in Georgia and must be designated by the bank as a trust or escrow account. Nonresident sole proprietors may open a trust account in a bank in their state of residence if the nonresident broker and the bank authorize the Georgia Real Estate Commission to examine the account any time the Commission may direct. The law allows interest-bearing trust accounts if before depositing the funds into such an account, the broker obtains the written agreement of the parties having an interest in the fund which shows to whom the broker will pay any interest earned. (3) Operate the trust account according to policies and procedures approved by the Commission. The sole proprietor must own the trust account and have signatory power on it. Generally, the sole proprietor will be the only person authorized to sign checks on the account. However, if efficiency dictates that other individuals, such as a bookkeeper or office manager, should also have the authority to sign checks on the account, the broker may arrange with the bank for them to do so. Whatever the number of signatories to the account, the broker is fully responsible for any errors by other persons signing checks on the account. (4) Complete all parts of the "Opening a Real Estate Firm" application, and attach any exhibits required by that application. The application may be obtained from the

3 Commission s office or downloaded from the Commission s website at A bank official must complete that part of the application regarding trust accounts. The broker must also sign that part of the application. PARTNERSHIP - One of the partners must possess a Georgia broker s license (or apply for that license at the time of filing to open the firm) and must serve as the qualifying broker of the partnership. The qualifying broker must take additional steps as outlined below. (1) See that the partners are licensed individually if they engage in such activities as listing, selling, referring prospects, collecting rent, controlling the marketing function of the firm and managing the trust account for the partnership. These activities require a broker's, associate broker's, or salesperson's license. A partner who only invests capital in the business and does not act as a broker does not need a real estate license. (2) See that the partnership has a written partnership agreement and attach a copy of it to the "Opening a Real Estate Firm" application. The application may be obtained from the Commission s office or downloaded from the Commission s website at (3) Choose a name for the firm. If the partnership's trade name does not include the full name of all its partners, the partnership must obtain a certificate of trade name from the clerk of the superior court of each county where it intends to conduct business. That is the name under which it will do business and in which the commission will issue its license. A copy of that certificate must be submitted with the application for licensure. If the applicant is a limited partnership, it must register its name with the Secretary of State's Corporation Division. (4) Open a trust account. That account must be a separate, federally insured bank checking account in a bank located in Georgia and must be designated by the bank as a trust or escrow account. Nonresident partnerships may open a trust account in a bank in their state of residence if the nonresident broker and the bank authorize the Georgia Real Estate Commission to examine the account any time the Commission may direct. The law allows interest-bearing trust accounts if before depositing the funds into such an account, the broker obtains the written agreement of the parties showing to whom the broker will pay any interest earned. (5) Operate the trust account according to the requirements of the License Law and the Rules of the Commission. The partnership must own the trust account, and the qualifying broker must be a signatory on it. The qualifying broker may be the only person authorized to sign checks on the account. However, for efficient operation of the business, others, such as a bookkeeper or office manager, may also have authority to sign checks. Whatever the number of signatories to the account, the qualifying broker is fully responsible for any errors by other persons signing checks on the account.

4 (c) (6) Complete all parts of the "Opening a Real Estate Firm" application, and attach any exhibits required by that application. A bank official must complete that part of the application for licensure regarding trust accounts. The qualifying broker of the partnership must also sign that part of the application. LIMITED LIABILITY COMPANY - One of the members or the manager must possess a Georgia broker's license (or make application for that license at the time of filing to open the firm) and must serve as the qualifying broker who is fully responsible for all the brokerage acts of the limited liability company. The qualifying broker must take additional steps as outlined below. (1) See that any person who performs any activities such as listing, selling, referring prospects, collecting rent, controlling the market function of the firm, and managing the trust account for the limited liability company has a broker's, associate broker's, or salesperson's license. A member who only invests capital in the business and does not act as a broker does not need a real estate license. (2) File articles of organization with the Corporation Division of the Secretary of State's Office. If the limited liability company is organized and filed in another state, it must secure a certificate of authority to transact business in Georgia from the Secretary of State's Corporation Division. The qualifying broker must submit to the Commission a copy of the certificate of authority to transact business in Georgia and its articles of organization from the Secretary of State's Office. If the limited liability company desires to conduct business in a name other than that which appears on the certificate of authority to transact business in Georgia, it should check with the Corporation Division of the Secretary of State's Office to see if it needs to amend its certificate of authority to transact business in Georgia or if it must register that d/b/a (doing business as) with the clerk of the superior court in each county in which it will do business under that other name. The name on the certificate of authority to transact business in Georgia will be the name in which the Commission issues the license of the limited liability company. (3) Open a trust account. That account must be a separate, federally insured bank checking trust account in a bank located in Georgia and must be designated by the bank as a trust or escrow account. Nonresident limited liability companies may open a trust account in a bank in their state of residence if the nonresident broker and the bank authorize the Georgia Real Estate Commission to examine the account at any time the Commission may direct. The law permits interest-bearing trust accounts if prior to depositing the funds into such account, the broker obtains the written agreement of the parties indicating to whom the broker shall pay any interest earned. (4) Operate the trust account according to policies and procedures approved by the Commission. The limited liability company must own the trust account, and the qualifying broker must have

5 (d) signatory power on it. Generally, the qualifying broker will be the only person authorized to sign checks on the account. However, if efficient operation of the business dictates that other individuals, such as a bookkeeper or office manager, should also have the authority to sign checks on the account, the qualifying broker may arrange with the bank for them to do so. Regardless of the number of signatories to the account, the qualifying broker is fully responsible for any errors by other persons signing checks on the account. (5) Complete all parts of the "Opening a Real Estate Firm" application, and attach any exhibits required by that application. The application may be obtained from the Commission s office or downloaded from the Commission s website at A bank official must complete that part of the application regarding trust accounts. The qualifying broker of the limited liability company must also sign that part of the application CORPORATION - One officer of the corporation must possess a Georgia broker's license (or apply for that license at the time of filing to open the firm) and must serve as the qualifying broker who is fully responsible for all the brokerage acts of the corporation. While the qualifying broker usually has an ownership position in the corporation, the individual who serves as the qualifying broker does not have to have an ownership position. The qualifying broker must take additional steps as outlined below. (1) See that any stockholder or director of the corporation or any other person who does any activities such as listing, selling, referring prospects, collecting rent, directing the market function of the firm, and managing the trust account for the corporation has a broker's, associate broker's, or salesperson's license. A stockholder or director of the corporation who only invests capital in the business and does not act as a broker does not need a real estate license. Similarly, the corporation may name an unlicensed officer only to meet the law's requirement that each corporation must fill the office of secretary of the corporation with a person other than the president. If such officer only serves that ministerial function and in no way acts as a broker or controls the marketing of the firm or its trust account, such officer does not need a real estate license. (2) Obtain a charter for the corporation and register it with the Corporation Division of the Secretary of State's Office. If the corporation is chartered and registered in another state, it must register as a foreign corporation with the Secretary of State's Corporation Division. The qualifying broker must submit to the Commission a copy of the official corporate charter and articles of incorporation from the Secretary of State's Office. If the corporation desires to conduct business in a name other than that which appears on the corporate charter, it should check with the Corporation Division of the Secretary of State's Office. The corporation may need to amend its charter or register its d/b/a (doing business as) with the clerk of the superior court in each

6 county where it will do business under that other name. The name registered with the Secretary of State's Corporation Division will be the name in which the Commission issues the license of the corporation. (3) Open a trust account. That account must be a separate, federally insured bank checking account in a bank located in Georgia and must be designated by the bank as a trust or escrow account. Nonresident corporations may open a trust account in a bank in their state of residence if the nonresident broker and the bank authorize the Georgia Real Estate Commission to examine the account any time the Commission may direct. The law allows interest-bearing trust accounts if before depositing the funds into such an account, the broker obtains the written agreement of the parties showing to whom the broker will pay any interest earned. However, certain federal bank regulatory agency rules restrict banks from paying interest on demand accounts to corporations. Consequently, the option of having an interestbearing trust account may not be available to a real estate corporation. (4) Operate the trust account according to policies and procedures approved by the Commission. The corporation must own the trust account and the qualifying broker must have signatory power on it. Generally, the qualifying broker will be the only person authorized to sign checks on the account. However, if efficiency dictates that others, such as a bookkeeper, office manager, or officer of the corporation should also have the authority to sign checks on the account, the qualifying broker may arrange with the bank for them to do so. Regardless of the number of signatories to the account, the qualifying broker is fully responsible for any errors by other persons signing checks on the account. (5) Complete all parts of the "Opening a Real Estate Firm" application and attach any exhibits required by that application. The application may be obtained from the Commission s office or downloaded from the Commission s website at A bank official must complete that part of the application regarding trust accounts. The qualifying broker must also sign that part of the application. B. CLOSING A REAL ESTATE FIRM INTRODUCTION This section provides a set of guidelines to help licensees comply with the license law when a real estate firm closes. Because there are many other factors to consider when closing a firm, sound legal advice from an attorney will aid individuals in closing firms. The guidelines listed below should help licensees, individuals, and attorneys to take appropriate steps during the most common types of closings. VOLUNTARY CLOSING

7 (c) (d) (e) (f) (g) The broker or qualifying broker must obtain an application for closing a firm from the Commission and complete that application in order to notify the Commission properly in writing of the date the firm is closing and where it will store its records. The application may be obtained from the Commission s office or downloaded from the Commission s website at The broker or qualifying broker must return all wall certificates of licensure to the Commission. If the firm is a sole proprietorship, the broker must either transfer to a new firm or place his or her license on inactive status. If the firm is a corporation, limited liability company, or partnership, the qualifying broker must either transfer to a new firm or place his or her license on inactive status. The corporation, limited liability company, or partnership must either surrender its license to the Commission or place that license on inactive status. The broker or qualifying broker must sign a "Change Application" for each affiliated licensee and give it to the licensee or mail it to the Commission. The application may be obtained from the Commission s office or downloaded from the Commission s website at The broker or qualifying broker must provide written notification to all clients with whom the firm has brokerage engagements of the date the firm will close. The broker or qualifying broker must assure the removal of all advertising signs from all properties that the firm had listed or managed. The broker or qualifying broker of the firm must secure appropriate storage for all files that the law requires to be maintained for at least three years. See O.C.G.A (27) and Rule (4) to find out which documents to maintain. The broker or the qualifying broker must see that designated trust accounts are open until he or she properly disburses all the funds of others in those accounts under pending contracts or makes other proper disbursements to which all parties having an interest in the funds agree in writing. DEATH OR SEPARATION OF THE QUALIFYING BROKER IN A CORPORATION, LIMITED LIABILITY COMPANY, OR PARTNERSHIP The corporation, limited liability company, or partnership must name a new qualifying broker within sixty days or cease all real estate brokerage activity until it does name a new qualifying broker. While the firm is seeking a new qualifying broker, the firm must designate an officer, if a corporation, a member, if a limited liability company, or a partner, if a partnership, to sign any documents and applications that the firm must file with the Commission and to disburse trust funds from the firm's designated trust account(s) as any contracts or agreements may require. If the firm does not select a new qualifying broker, then the corporation, limited liability company, or the partnership must

8 designate a person, perhaps an attorney, to conclude the firm's business and follow the steps outlined under Voluntary Closing above. DEATH OF THE BROKER IN A SOLE PROPRIETORSHIP All affiliated licensees must cease all brokerage activity until they transfer to a new broker. The administrator or executor of the broker's estate may not initiate new brokerage business for the firm but may conclude pending business. The administrator or executor of the broker's estate must follow the steps outlined under Voluntary Closing above. REVOCATION OR SUSPENSION OF THE LICENSE OF A CORPORATION, LIMITED LIABILITY COMPANY, OR PARTNERSHIP (c) (d) (e) (f) (g) (h) All brokerage business must cease immediately upon the effective date of the suspension or revocation order. An attorney should close any pending contracts. If the Commission suspends or revokes both the licenses of the qualifying broker and the firm, the qualifying broker must return all wall certificates of licensure to the Commission. If the Commission suspends or revokes only the qualifying broker's license, the corporation's board of directors may meet and select another officer to be the new qualifying broker. If a partnership, the partners select another partner, and if a limited liability company, the members select another member. However, until it selects a new qualifying broker, the corporation, partnership, or limited liability company and their licensed affiliates must not conduct any brokerage business. The broker or qualifying broker must sign a "Change Application" for each affiliated licensee and give it to the licensee or mail it to the Commission. The broker or qualifying broker must provide written notification to all clients with whom the firm has brokerage engagements of the date the firm will close. The broker or qualifying broker must assure the removal of all advertising signs from all properties that the firm had listed or managed. The firm must secure appropriate storage for all files that the law requires it to maintain for at least three years and report its location to the Commission in writing. See O.C.G.A (27) and Rule (4) to find out which documents must be so maintained. The qualifying broker must assure that designated trust accounts are open until the proper disbursements of all the funds under pending contracts or other proper disbursements to which all parties having an interest in the funds agree in writing.

9 REVOCATION OR SUSPENSION OF THE LICENSE OF A SOLE PROPRIETORSHIP (c) (d) (e) (f) (g) (h) All brokerage business must cease immediately upon the effective date of the suspension or revocation order. The broker must return to the Commission all wall certificates of licensure in the firm's possession. The broker or qualifying broker must sign a "Change Application" for each affiliated licensee and give it to the licensee or mail it to the Commission. An attorney should close any pending contracts. The broker or qualifying broker must provide written notification to all clients with whom the firm has brokerage engagements of the date the firm will close. The broker or qualifying broker must assure the removal of all advertising signs from all properties that the firm had listed or managed. The broker must secure appropriate storage for all files that the law requires the sole proprietor to maintain for at least three years and report its location to the Commission in writing. See O.C.G.A (27) and Rule (4) to find out which documents must be so maintained. The broker must take steps to assure that designated trust accounts are open until he or she properly disburses all the funds of others in those accounts under pending contracts or makes other proper disbursements to which all parties having an interest in the funds agree in writing.