Part 1: Principal Broker Supervisory Duties and Best Practices (2 hours)

Transcription

1 State of Vermont Office of the Secretary of State [phone] James C. Condos, Secretary of State [fax] Brian H. Leven, Deputy Secretary Office of Professional Regulation National Life Bldg., North FL2 Christopher D. Winters, Director Montpelier, VT Renewal Cycle - Mandatory Course Outline Title: Broker and Associate Duties, Responsibilities, and Best Practices Part 1: Principal Broker Supervisory Duties and Best Practices (2 hours) I. The duty to define parties, roles and expectations within the firm consistent with VREC rules A. Principal broker as supervisor of the brokerage firm B. Broker in charge as supervisor of an office of the brokerage firm C. Non-managing brokers D. Salespersons E. Personal assistants serving agents F. Unlicensed office staff G. Team leaders and other designations to be recognized by the brokerage firm H. Establishing independent contractor status under federal Internal Revenue Code 1. Requirements 2. Consequences I. Establishing relationship with employees J. Expectations and/or requirements for becoming members of trade associations and/or MLS K. Policies and procedures relating to dissociation with the brokerage firm L. Ensure continuing agent compliance with requirements to maintain licensure 1. Monitor minimum required education and renewals 2. Notice of delinquency in state income tax, unemployment tax or child support 3. Notice of ANY professional disciplinary procedure or criminal conviction 4. Change of name, address, phone number, address 5. Requirement to conspicuously display license M. Establish requirements and expectations regarding agent training and continuing education 1. Establish method to monitor agent training, education, and practice achievements a. Ensure minimum education requirements are met b. Ensure study and experience match responsibilities delegated 2. Define goals which exceed minimal requirements of applicable rules and standards a. Special orientations for new agents; in house or outsource b. Non-credit in house and other training opportunities

2 N. Establish general and special supervision requirements 1. Office assignment as controlling supervisory chain 2. Practice and/or education standards to handle specific client matters 3. When special supervision will be required 4. Expectations regarding covering agents for illness, vacations etc. O. Policies and notices regarding non-discrimination; required notices and disclosures P. Safe and healthy work environment; safety precautions for agents (sexual harassment) Q. Policy and procedures for licensee selling/purchasing on own account; required disclosures R. Define other circumstances deemed to constitute conflicts requiring notice or action S. Define and monitor requirements of the firm relating to errors and omissions coverage T. Define instances where supervisory review, preapproval and/or advice are required 1. Provide streamlined system and available supervisor or resource person 2. Provide avenue of appeal to supervisor or principal broker 3. Ensure consistent application of supervisory review II. The duty to establish terms and conditions of compensation consistent with VREC rules and the law A. Compensation for licensed agents of the brokerage firm 1. During association with (or employment by) the firm 2. After termination of association with (or employment by) the firm 3. Clear statement of when and how compensation may be delayed or denied a. Failure to comply with office policy or procedure b. Required escrows or delays pending dispute resolution B. Policy for compensation of other brokerage firms participating in the transaction 1. Compensating cooperating (agent) firms 2. Compensating brokerage firms representing the opposite party in the transaction 3. Establishing policy and procedures for compliance with VREC disclosure rules C. Policy for compensating other brokerage firms NOT participating in the transaction 1. Accepting referrals from other brokerage firms a. Best practices for keeping all agreements in writing b. Tax implications, W9 and reporting requirements 2. Avoid promoting the unauthorized practice of real estate brokerage in this state D. Policies relating to receiving referrals from other brokerage firms E. Policies to ensure compliance with applicable federal laws relating to compensation F. Policies to ensure general compliance with rules regarding compensation, commissions, transaction and other fees III. The duty to establish, implement and disclose firm policy regarding practices and conflicts A. Determine who may be clients of the brokerage firm 1. Mixed agency (both buyers and sellers in the market) 2. Single agency (only buyers or only sellers in the market) 3. Blanket cooperation through an MLS Page 2 of 7

3 4. Separate cooperation with independent firms OR non-mls listings B. Determine whether the brokerage firm will allow limited agency when legally permitted 1. Distinguish regular conflicts under Rule 4.4 and special conflicts under Rule 4.5(f) 2. If yes, then provide clear guidance to agents for implementation and compliance C. Establish specific provisions for avoiding dual agency practices D. Establish specific provisions for avoiding conflicts of interest 1. Use of examples in old Appendix B to the 1995 rules 2. Address both relationships and continuing duty of confidentiality E. Establish procedures to ensure policies are reflected in service agreements as required IV. The duty to maintain proper trust accounts and to handle money and property held for others A. Establish a firm pooled trust account for the handling of funds held for others B. Establish individual trust accounts when and as required by law C. Ensure compliance with disclosure, retention, recordkeeping, and accounting requirements D. Provide necessary funds to ensure others are not charged for business expense items E. Establish procedures to comply with commingling rules 1. Deposit of funds in a timely manner 2. No withdrawal of funds unless transaction closes, is terminated, or all parties agree in writing F. Ensure compliance with rules relating to disputes and augmented deposits G. Maintain adequate controls for managing and safeguarding accounts and funds 1. Address who may sign, issue, receive, and/or deposit checks or other funds 2. Establish a cash management system H. Keep VREC informed of banks being used for trust deposits V. The duty to establish and monitor adequate record keeping policies in accordance with VREC rules A. Maintaining all records as defined by rule for a period of 7 years 1. Include offers and electronic records such as s a. Discuss ways of memorializing direction given through methods such as texting 2. Assume holding period begins on date a file is closed or in instances where a conflict arises, from the date a conflict is settled 3. Make available for inspection as requested 4. Consider items not required by rule such as sales meeting attendance B. Maintain policies and procedures for taking files from the registered offices C. Establish policies and procedures for digital record keeping (if used) D. Ensure compliance with privacy laws and laws relating to destruction of records E. Maintain policies and procedures for dealing with disasters (flood, fire, etc) F. Ensure that each file contains proper mandatory and/or required disclosures Page 3 of 7

4 VI. The duty to ensure compliance with advertising and solicitation laws and rules A. Understand current definition of advertising under VREC rules B. Understand current requirements for advertising under VREC rules C. Establish and maintain controls for agent compliance with basic laws and rules 1. Preapproval of business cards, stationery, electronic templates for /texts 2. Establish clear policy mandating use of the firm s name in all advertising 3. Require use of preapproved signs and riders only for on-site signs 4. Establish clear policy and expectations regarding self promotion and marketing a. Personal and commercial websites b. Use of social media c. Team or group advertising d. Use of logos, models, catch-lines, personal or favorite quotes 5. Ensure compliance with discrimination laws; use required logo 6. Establish rules for placement and distribution of advertisements; include disclaimers 7. Obtaining client consent 8. Establish rules for open houses; ensure compliance with disclosure and sign rules D. Make clear policies to ensure compliance with DO-NOT-CALL and CAN SPAM laws VII. The duty to ensure that required contracts and forms used by the firm comply with VREC rules A. Provide mandatory consumer disclosure forms which comply with VREC rules 1. Provide agents with standard language regarding NO CONFIDENTIALITY a. To be used in websites and social media b. To be used in s and other correspondence before delivery of form 2. Establish clear procedure for delivery of, signing and filing the forms a. Note the rule does NOT require the consumer to sign b. Follow procedure in rule when consumer declines to sign form B. Provide service agreement forms which comply with the rules and reflect the firm s policies 1. Include addenda where necessary to comply with VREC rules 2. Require fill in blanks and check boxes to be completely addressed 3. Establish policies regarding required signatories and representative parties 4. Ensure that listing parties are matched against public data such as grand list 5. Train agents to review and highlight the main terms and conditions of the agreement 6. Establish policies regarding extensions and renewals a. Update data and variable terms as of the date of extension or renewal b. Consider extension at the time client enters into P&S agreement c. Dealing with expired agreements where parties are under contract to close 7. Make a firm policy that brokerage services are NOT to be provided BEFORE there is a signed service agreement 8. Limitations of services should be specified; duties may not be limited Page 4 of 7

5 C. Use fill in the blank sales agreements approved either by a trade association or attorney 1. Establish clear policy geared toward avoiding the practice of law a. Legal questions should be referred to counsel for the party b. Use preapproved forms for addenda or consult attorney c. Avoid paragraph by paragraph explanation of contract provisions d. Highlight the disclaimer/warning regarding obtaining legal advice 2. Establish procedures which require file records for all versions of an offer/contract 3. Establish clear policies and procedures for prompt handling of offers and acceptances 4. Establish policy for handling non-cash or cash equivalent deposits D. Establish policies and procedures for the use of term sheets and/or letters of intent E. Ensure that signatories are given copies of an agreement at the time of signing F. Ensure that amendments, additions, and deletions are dated and initialed VIII. The duty to ensure proper disclosures as required by VREC rules A. Advertising 1. Name of the firm 2. Name of listing agency and agent 3. Personal interest in transaction and license status B. Closing statement showing disposition of deposit C. Compensation of other firms D. Conflicts provisions E. Limited agency disclosures F. Limitations on ability to convey fee simple G. Limitations on Service H. Mandatory consumer disclosure, agency disclosure I. Material facts concerning property J. Material facts concerning party opposite, other matters K. Offers L. Representation of both sellers and buyers in the market M. Trust account location, name IX. The duty to assure compliance with applicable laws and rules relating to practice of the profession A. Federal and state discrimination laws 1. Emphasis on additional Vermont protected categories 2. More restrictive provisions in Vermont which differ from federal law 3. Create a disclosure policy to supplement required federal poster B. RESPA anti-kickback and unearned fee provisions; affiliated business agreements C. Federal and state anti-trust provisions D. State sign laws (on-premise signs); interpretations by Travel Information Council E. Residential landlord and tenant law; marketing restrictions; timing; notice F. Federal and state lead disclosure laws; pre-contract requirements; closing requirements G. Smoke & CO detector Requirements H. Lead Paint and Renovation Rules and EMP requirements for rental property owners Page 5 of 7

6 Part 2: VREC Initiatives and Resources (10 minutes) I. Overview of the disciplinary process A. Dual filing on disciplinary matters - both respondent and their broker II. The establishment of inspectors to educate and assist firms in complying with the rules. III. Updating rules to provide clarifications and adjustments to practice rules (in process). IV. Plan to create new educational requirement for first year salespersons. V. OPR Resources A. Real Estate Commission Website at B. On-line Calendar, Agendas, Minutes, Newsletters C. On-line Rules, Vermont Statutes, and Important Forms D. On-line Conduct Decisions E. Reminder that registering and attending a meeting gets licensee credit Part 3: Discussion of Supervisory Issues and Examples of Best Practices (1 hour, 50 minutes) This section of the course is intended to allow course providers some flexibility in addressing and emphasizing common areas of concern in firm supervision and/or agent duties and responsibilities. Some sample topics are listed below but are not intended to be exclusive. This section could also be used to expand on topics mentioned in Part 1. This section should be as INTERACTIVE as possible, using hypothetical situations, case studies, review of actual disciplinary decisions of the VREC, and any other learning tools which might assist licensees in understanding the issues and helping to resolve them consistently with our rules of practice. SAMPLE TOPICS 1. Case law makes it clear that real estate agents are marketing agents, not inspectors or structural engineers. Discuss or give examples of agent practices which might serve to undermine this principle and mislead the consumer into expecting this type of expertise from the agent. 2. If an agent wishes to show a prospective purchaser property which is for-sale-by owner, how should this be handled under our rules of practice? What are the options? 3. What is the role of a listing agent with respect to general inspection reports, or reports on specific items such as mold or radon? 4. What issues confront a listing agent whose client has suggested a willingness to provide seller financing? Address this for one to four unit residential AND also for commercial? 5. Are firms allowed to accept an agreement signed by parties before a dispute arises for purposes of complying with the written authority requirement of Rule 4.7(d)? Page 6 of 7

7 6. What is the best practice for consumer warnings on s and other introductory correspondence between agents and customers/prospects? 7. What exactly are the limits of service to a customer? 8. What are the elements of an ideal orientation for a new sales agent? 9. Give specific examples of how professional conduct rules may be implicated when an agent actively uses social media for a mixture of personal and business purposes? 10. How should a firm reconcile a new agent s need and desire to make money with the obligation to avoid delegating or having the agent take on tasks which the agent is not qualified by education or experience to handle? 11. How should a buyer broker handle a client who specifically requests assistance in locating an area predominately inhabited by people of a particular national origin? 12. How should a real estate agent handle a closing attorney s demand for a check for the deposit at least three days BEFORE closing to ensure collected funds needed for a closing date wire? 13. Could a principal broker choose to handle a multiple buyer conflict by obtaining informed consent of both buyers to continued representation with reduction in services similar to a limited agency? 14. Would a firm s service agreement be affected if the listing salesperson fails to renew his/her license in a timely manner at any point during the term of the agreement? Does your response change if there was an outstanding purchase and sales agreement at the time the agent s license expired? Does your response change if it was the principal broker who failed to renew, not a salesperson? Page 7 of 7