Real estate broker

A real estate broker or real estate salesperson (often called a real estate agent) is a person who acts as an intermediary between sellers and buyers of real estate/real property and attempts to match up sellers who wish to sell and buyers who wish to buy.

In the United States, the relationship was originally established by reference to the English common law of agency, with the broker having a fiduciary relationship with his or her clients. A real estate broker typically receives a payment called a commission for successfully matching a seller's real estate with a buyer such that a sale can be made. This commission can be divided up with other participating real estate brokers or agents when applicable.

An estate agent, which is a term used in the United Kingdom, is a person or business entity whose business is to market real estate on behalf of clients. There are significant differences between the actions, powers, obligations and liabilities of brokers and estate agents in each country. Other countries take markedly different approaches to the marketing and selling of real property.

In the United States, however, real estate brokers and their salespersons who assist owners in marketing, selling, or leasing properties are commonly called "listing brokers" and "listing agents." ^[1] Listing brokers and agents seek to market and sell or lease property for the highest available price under the best available terms.

Other brokers and agents may focus on representing buyers or tenants. However, licensing as a broker or salesperson authorizes the licensee to represent parties on either side of a transaction. The choice of which side to represent is a business decision for the licensee.

In the U.S., real estate brokers and salespersons are licensed by each state, not by the federal government. Each state has its own laws defining the types of relationships that can exist between clients and real estate licensees, and the duties of real estate licensees to clients and members of the public. These rules differ substantially from state to state, for example, on subjects that include required documentation, agency relationships, inspections, disclosures, continuing education, and other subjects.

Buyer's agent

When acting as a buyer's agent, brokers and salespersons assist buyers by helping them purchase property for the lowest available price under the best terms. The real estate broker owes fiduciary duties to whomever that broker services as a client. The broker must ensure to negotiate in the best interest of the client, and at all times keep the client (buyer) aware of any new information that can help make a solid decision.

Written Agreement

It is important to have a clear agreement between the broker and the client, for the protection of both of them. These agreements should (and in many U.S. states must) be in writing. If the parties only have an oral agreement, it is more likely for a dispute to arise concerning the services the broker or agent is supposed to provide, whether the broker can enforce the parties' compensation agreement, the duration of the relationship, whether the relationship is "exclusive," and other issues. Enforceability of oral agreements, what kinds of agreements are required to be in writing, and other important issues vary from state to state.

Dual agent

If the broker is helping both the buyer and the seller, this is referred to as a "dual agency". Traditionally, the broker represents the seller, and his fiduciary duty is to the seller. If the broker suggests to the buyer that he will help the buyer negotiate the best price, the broker is practicing "undisclosed dual agency," which is unethical and illegal in all states.^[2] Under a dual agency transaction, it is vital that the broker disclose to both parties whom he represents as a client and whom he represents as a customer. A real estate broker owes his client fiduciary duties, which include care, confidentiality, loyalty, obedience, accounting, and disclosure. To protect his license to practice, a real estate broker owes his customer fair and honest dealing and must request that both parties (seller and buyer) sign a dual agency agreement.

Licensing

In most jurisdictions in the United States, a person must have a license before they may receive remuneration for services rendered as a real estate broker. Unlicensed activity is illegal, but buyers and sellers acting as principals in the sale or purchase of real estate are usually not required to be licensed. In some states, lawyers are authorized to handle real estate sales for compensation without being licensed as brokers or agents.

The difference between salespersons and brokers

Before the Multiple Listing Service (MLS) was introduced in 1967, when brokers (and their licensees) only represented sellers, the term "real estate salesperson" may have been more appropriate than it is today, given the various ways that brokers and licensees now help buyers through the process rather than merely "selling" them a property. Legally, however, the term "salesperson" is still used in many states to describe a real estate licensee.

Real estate education

To become licensed, most states require that an applicant take a minimum number of classroom hours before taking the state licensing exam. Such education is often provided by real estate firms or by education companies, either of which are typically licensed to teach such courses within their respective states. The courses are designed to prepare the new licensee primarily for the legal aspects of the practice of real estate and to pass the state licensing exam.

Once licensed, the licensee in most states is initially designated a salesperson and must work under a broker's license. Some other states have recently eliminated the salesperson's license and instead all licensees in those states automatically earn their broker's license.

A salesperson must place their license under a managing broker. Typically there may be multiple licensees holding broker's licenses within a firm but only one broker or the firm itself, is the managing or principal broker and that individual or firm is then legally responsible for all licenses held under their license.

The term agent is not to be confused with salesperson or broker. An agent is simply a licensee that has entered into an agent relationship with a client. A broker can also be an agent for a client. It is commonly the firm that has the actual legal relationship with the client through one of their sales staff, be they salespersons or brokers.

In all states, the real estate licensee must disclose to prospective buyers and sellers the nature of their relationship ^[3] within the transaction and with the parties. See below for a broker/licensee relationship to sellers and their relationship to buyers.

In the United States, there are commonly two levels of real estate professionals licensed by the individual states but not by the federal government:

Real estate salesperson (or, in some states, Real estate broker)

When a person first becomes licensed to become a real estate agent, they obtain a real estate salesperson's license (some states use the term "broker") from the state in which s/he will practice. To obtain a real estate license, the candidate must take specific coursework (between 40 and 120 hours) and pass a state exam on real estate law and practice. To work, salespersons must be associated with (and act under the authority of) a real estate broker. In Delaware, for example, the licensing course requires the candidate to take 99 classroom hours in order to qualify to sit for the state and national examination. In Ohio, a license candidate must complete 120 hours of classroom education. Each successive year thereafter, the license holder must participate in continuing education in order to remain abreast of state and national changes.

Many states also have reciprocal agreements with other states, allowing a licensed individual from a qualified state to take the second state's exam without completing the course requirements or, in some cases, take only a state law exam.

Real estate broker (or, in some states, qualifying broker)

After gaining some years of experience in real estate sales, a salesperson may decide to become licensed as a real estate broker (or Principal/qualifying broker) in order to own, manage, or operate their own brokerage. In addition, some states allow college graduates to apply for a broker's license without years of experience. College graduates fall into this category once they have completed the state-required courses as well. California allows licensed attorneys to become brokers upon passing the broker exam without having to take the requisite courses required of an agent. Commonly more course work and a broker's state exam on real estate law must be passed. Upon obtaining a broker's license, a real estate agent may continue to work for another broker in a similar capacity as before (often referred to as a broker associate or associate broker) or take charge of his/her own brokerage and hire other salespersons (or broker) licensees. Becoming a branch office manager may or may not require a broker's license. Some states allow licensed attorneys to become real estate brokers without taking any exam. In some states, there are no "salespeople" as all licensees are brokers.^[4]

Agency relationships with clients versus non-agency relationships with customers

• Relationship: Conventionally, the broker provides a conventional full-service, commission-based brokerage relationship under a signed listing agreement with a seller or a "buyer representation" agreement with a buyer, thus creating under common law in most states an agency relationship with fiduciary obligations. The seller or buyer is then a client of the broker. Some states also have statutes that define and control the nature of the representation.

Agency relationships in residential real estate transactions involve the legal representation by a real estate broker (on behalf of a real estate company) of the principal, whether that person(s) is a buyer or a seller. The broker and his licensed real estate salespersons (salesmen or brokers) then become the agents of the principal.

• Non-agency relationship: where no written agreement or fiduciary relationship exists, a real estate broker and his sales staff work with a principal who is known as the broker's customer. When a buyer who has not entered into a Buyer Agency agreement with the broker buys a property, that broker functions as the sub-agent of the seller's broker. When a seller chooses to work with a transaction broker, there is no agency relationship created.

Transaction brokers

Some state Real Estate Commissions - notably Florida's^[5] after 1992 (and extended in 2003) and Colorado's^[6] after 1994 (with changes in 2003) - created the option of having no agency or fiduciary relationship between brokers and sellers or buyers. Having no more than a facilitator relationship, transaction brokers assist buyers, sellers, or both during the transaction without representing the interests of either party who may then be regarded as customers.

As noted by the South Broward Board of Realtors, Inc. in a letter to State of Florida legislative committees:

"The Transaction Broker crafts a transaction by bringing a willing buyer and a willing seller together and assists with the closing of details. The Transaction Broker is not a fiduciary of any party, but must abide by law as well as professional and ethical standards." (such as NAR Code of Ethics).

The result was that in 2003, Florida created a system where the default brokerage relationship had "all licensees ... operating as transaction brokers, unless a single agent or no brokerage relationship is established, in writing, with the customer"^[7][8] and the statute required written disclosure of the transaction brokerage relationship to the buyer or seller customer only through July 1, 2008.

In the case of both Florida^[8] and Colorado,^[6] dual agency and sub-agency (where both listing and selling agents represent the seller) no longer exist.

Designated agency

The most recent development in the practice of real estate is "designated agency"^[9] which was created to permit individual licensees within the same firm, designated by the principal broker, to act as agents for individual buyers and sellers within the same transaction. In theory therefore, two agents within the same firm act in strict fiduciary roles for their respective clients. Some states have adopted this practice into their state laws and others have decided this function is inherently problematic, just as was dual agency. The practice was invented and promoted by larger firms to make it possible in theory to handle the entire transaction in house without creating a conflict of interest within the firm.

Dual or limited agency

Dual agency occurs when the same brokerage represents both the seller and the buyer under written agreements. Individual state laws vary and interpret dual agency rather differently.

Many states no longer allow dual agency. Instead, "transaction brokerage" provides the buyer and seller with a limited form of representation but without any fiduciary obligations (see Florida law). Buyers and sellers are generally advised to consult a licensed real estate professional for a written definition of an individual state's laws of agency, and many states require written Disclosures to be signed by all parties outlining the duties and obligations.

• If state law allows for the same agent to represent both the buyer and the seller in a single transaction, the brokerage/agent is typically considered to be a Dual Agent. Special laws/rules often apply to dual agents, especially in negotiating price.
• In some states, Dual Agency can be practiced in situations where the same brokerage (but not agent) represent both the buyer and the seller. If one agent from the brokerage has a home listed and another agent from that brokerage has a buyer-brokerage agreement with a buyer who wishes to buy the listed property, Dual Agency occurs by allowing each agent to be designated as an "intra-company" agent. Only the broker himself is the Dual Agent.
• Some states do allow a broker and one agent to represent both sides of the transaction as dual agents. In those situations, conflict of interest is more likely to occur, typically resulting in the loss of advocacy for both parties.

Types of services that a broker can provide

Real Estate Services are also called trading services ^[10] by some jurisdictions. Since each province's and state's laws may differ, it is generally advised that prospective sellers or buyers consult a licensed real estate professional.

Some examples:

• Comparative Market Analysis (CMA) — an estimate of the home's value compared with others. This differs from an appraisal in that property currently for sale may be taken into consideration. (competition for the subject property)
• Total Market Overview — an objective method for determining a home's value, where a CMA is subjective.
• Broker's Price Opinion — estimate of a property's value or potential selling price
• Real estate appraisal — in most states, only if the broker is also licensed as an appraiser.
• Exposure — Marketing the real property to prospective buyers.
• Facilitating a Purchase — guiding a buyer through the process.
• Facilitating a Sale — guiding a seller through the selling process.
• FSBO document preparation — preparing necessary paperwork for "For Sale By Owner" sellers.
• Home Selling Kits — guides advising how to market and sell a property.
• Hourly Consulting for a fee, based on the client's needs.
• Leasing for a fee or percentage of the gross lease value.
• Property Management
• Exchanging property.
• Auctioning property.
• Preparing contracts and leases. (not in all states)

These services are also changing as a variety of real estate trends transform the industry.

Real estate brokers and sellers

Services provided to seller as client

Upon signing a listing contract with the seller wishing to sell the real estate, the brokerage attempts to earn a commission by finding a buyer for the sellers' property for the highest possible price on the best terms for the seller. In Canada, most provinces' laws require the real estate agent to forward all written offers to the seller for consideration or review.

To help accomplish the goal of finding buyers, a real estate agency commonly does the following:

• Lists the property for sale to the public, often on an MLS, in addition to any other methods.
• Provides the seller with a real property condition disclosure (if required by law) and other necessary forms.
• Prepares necessary papers describing the property for advertising, pamphlets, open houses, etc.
• Places a "For Sale" sign on the property indicating how to contact the real estate office and agent.
• advertises the property, which may include social media and digital marketing in addition to paper advertising.
• Holds an open house to show the property.
• Serves as a contact available to answer any questions about the property and schedule showing appointments.
• Ensures that buyers are pre-screened and financially qualified to buy the property. (Sellers should be aware that the underwriter for any real estate mortgage loan is the final say.)
• Negotiates price on behalf of the sellers.
• Acts as a fiduciary for the seller, which may include preparing a standard real estate purchase contract.
• Holds an earnest payment cheque in escrow from the buyer(s) until the closing if necessary. In many states, the closing is the meeting between the buyer and seller where the property is transferred and the title is conveyed by a deed. In other states, especially those in the West, closings take place during a defined escrow period when buyers and sellers each sign the appropriate papers transferring title, but do not meet each other.

The listing contract

Several types of listing contracts exist between broker and seller. These may be defined as:

• Exclusive right to sell

The broker is given the exclusive right to market the property and represents the seller exclusively. This is referred to as seller agency. However, the brokerage also offers to cooperate with other brokers and agrees to allow them to show the property to prospective buyers and offers a share of the total real estate commission.

• Exclusive agency

Exclusive agency allows only the broker the right to sell the property, and no offer of compensation is ever made to another broker. In this case, the property will never be entered into an MLS. Naturally, this limits the exposure of the property to only one agency.

• Open listing

The property is available for sale by any real estate professional who can advertise, show, or negotiate the sale. The broker/agent who first brings an acceptable offer would receive compensation. Real estate companies will typically require that a written agreement for an open listing be signed by the seller to ensure payment of a commission if a sale takes place.

Although there can be other ways of doing business, a real estate brokerage usually earns its commission after the real estate broker and a seller enter into a listing contract and fulfill agreed-upon terms specified within that contract. The seller's real estate is then listed for sale.

In most of North America, a listing agreement or contract between broker and seller must include the following:

• starting and ending dates of the agreement;
• the price at which the property will be offered for sale;
• the amount of compensation due to the broker;
• how much, if any, of the compensation will be offered to a cooperating broker who may bring a buyer (required for MLS listings).

Net listings: Property listings at an agreed-upon net price that the seller wishes to receive with any excess going to the broker as commission. In many states including Georgia, New Jersey and Virginia [18 VAC §135-20-280(5)] net listings are illegal, other states such as California and Texas state authorities discourage the practice and have laws to try and avoid manipulation and unfair transactions [22 TAC §535(b)] and (c).^[11]

Brokerage commissions

In consideration of the brokerage successfully finding a buyer for the property, a broker anticipates receiving a commission for the services the brokerage has provided. Usually the payment of a commission to the brokerage is contingent upon finding a buyer for the real estate, the successful negotiation of a purchase contract between the buyer and seller, or the settlement of the transaction and the exchange of money between buyer and seller. The median real estate commission charged to the seller by the listing (seller's) agent is 6% of the purchase price. Typically, this commission is split evenly between the seller's and buyer's agents, with the buyer's agent generally receiving a commission of 3% of the purchase price of the home sold.

In North America, commissions on real estate transactions are negotiable and new services in real estate trends have created ways to negotiate rates. Local real estate sales activity usually dictates the amount of agreed commission. Real estate commission is typically paid by the seller at the closing of the transaction as detailed in the listing agreement.

RESPA

Real estate brokers who work with lenders may not receive any compensation from the lender for referring a residential client to a specific lender. To do so would be a violation of a United States federal law known as the Real Estate Settlement Procedures Act (RESPA). Commercial transactions are exempt from RESPA. All lender compensation to a broker must be disclosed to all parties. A commission may also be paid during negotiation of contract base on seller and agent.

Lock-box

With the seller's permission, a lock-box is placed on homes that are occupied, and after arranging an appointment with the homeowner, agents can show the home to prospective buyers. When a property is vacant, a lock-box will generally be placed on the front door. The listing broker helps arrange showings of the property by various real estate agents from all companies associated with the MLS. The lock-box contains the key to the door of the property, and the box can only be opened by licensed real estate agents.

Shared commissions with co-op brokers

If any buyer's broker or his agents brings the buyer for the property, the buyer's broker would typically be compensated with a co-op commission coming from the total offered to the listing broker, often about half of the full commission from the seller. If an agent or salesperson working for the buyer's broker brings the buyer for the property, then the buyer's broker would commonly compensate his agent with a fraction of the co-op commission, again as determined in a separate agreement. A discount brokerage may offer a reduced commission if no other brokerage firm is involved and no co-op commission paid out.

If there is no co-commission to pay to another brokerage, the listing brokerage receives the full amount of the commission minus any other types of expenses.

Real estate brokers and buyers

Services provided to buyers

Buyers as clients

With the increase in the practice of buyer brokerages in the United States, agents (acting under their brokers) have been able to represent buyers in the transaction with a written "Buyer Agency Agreement" not unlike the "Listing Agreement" for sellers referred to above. In this case, buyers are clients of the brokerage.

Some brokerages represent buyers only and are known as exclusive buyer agents (EBAs). Consumer Reports states, "You can find a true buyer's agent only at a firm that does not accept listings."^[12] The advantages of using an Exclusive Buyer Agent is that they avoid conflicts of interest by working in the best interests of the buyer and not the seller, avoid homes and neighborhoods likely to fare poorly in the marketplace, ensure the buyer does not unknowingly overpay for a property, fully inform the buyer of adverse conditions, encourage the buyer to make offers based on true value instead of list price, and work to save the buyer money. A buyer agency firm commissioned a study that found EBA purchased homes were 17 times less likely to go into foreclosure.

A real estate brokerage attempts to do the following for the buyers of real estate only when they represent the buyers with some form of written buyer-brokerage agreement:

• Find real estate in accordance with the buyers needs, specifications, and cost.
• Take buyers to and shows them properties available for sale.
• Pre-screen buyers to ensure they are financially qualified to buy the properties shown (or use a mortgage professional, such a bank's mortgage specialist or alternatively a Mortgage broker, to do that task).
• Negotiate price and terms on behalf of the buyers.
• Prepare standard real estate purchase contract.
• Act as a fiduciary for the buyer.
• Find real estate in accordance with the buyers' needs, specifications, and affordability.
• When deemed appropriate, prescreen buyers to ensure they are financially qualified to buy the properties shown.^†
• Assist the buyer in making an offer for the property.

†Due to the importance of the role of representing buyers' interests, many brokers who seek to play the role of client advocate are now seeking out the services of Certified Mortgage Planners, industry experts that work in concert with Certified Financial Planners to align consumers' home finance positions with their larger financial portfolio(s).

Buyers as customers

In most states until the 1990s, buyers who worked with an agent of a real estate broker in finding a house were customers of the brokerage since the broker represented only sellers.

Today, state laws differ. Buyers and/or sellers may be represented. Typically, a written "Buyer Brokerage" agreement is required for the buyer to have representation (regardless of which party is paying the commission), although by his/her actions, an agent can create representation.

Education

A person may attend a pre-license course lasting 60 hours and then be tested by the state for a real estate agent's license. Upon passing, the new licensee must place their license with an established real estate firm, managed by a broker. Requirements vary by state but after some period of time working as an agent, one may return to the classroom and test to become a broker. For example, California and Florida require you to have a minimum experience of two years as a full-time licensed agent within the prior 5 years. Where as Indiana only requires one year experience as a real estate salesperson and Arizona requires three out of the prior five years.^[13][14] Brokers may manage or own firms. Each branch office of a larger real estate firm must be managed by a broker.

States issue licenses for a multi year period and require real estate agents and brokers to complete continuing education prior to renewing their licenses. For example, California licensees must complete 45 hours of continuing education every 4 years in topics such as agency, trust fund handling, consumer protection, fair housing, ethics, and risk management. Many states recognize licenses from other states and issue licenses to existing agents and firms upon request without additional education or testing however the license must be granted before real estate service is provided in the state.

California does not have license reciprocity with other states. An applicant for licensure is not, however, required to be a resident of California to obtain a license.

Organizations

Several notable groups exist to promote the real estate industry and to assist members who are in it.

The National Association of Realtors (NAR) is the largest real estate organization and one of the largest trade groups anywhere. Their membership exceeds one million. NAR also has state chapters as well as thousands of local chapters. Upon joining a local chapter, a new member is automatically enrolled into the state and national organizations. When the principals of a firm join, all licensed agents in that firm must also belong. A Realtor is a real estate broker or salesperson who is also a member of the National Association of Realtors, which is an industry trade association. The word "Realtor" is a registered trademark, protected under US and international law.

The Realtor Political Action Committee (RPAC) is a separate entity, and also the lobbying arm of NAR. In 2005, they were considered the largest PAC in the United States. According to realtor.org, RPAC is the largest contributor of direct contributions to federal candidates.

The National Association of Exclusive Buyer Agents is a group of agents and brokers who work in firms that represent buyers only. They assist in locating exclusive buyer agents for home buyers through the Web site www.naeba.org.

The National Association of Real Estate Brokers (NAREB) was founded in 1947 as an alternative for African Americans who were excluded from the dominant NAR. Both groups allow members to join without regard to race. However, NAREB has historically been an African American-centric group with a focus on developing housing resources for intercity populations.

Changing industry

Compensation is conventionally based on a percentage of the sales price, split between the buying and selling brokers, and then between the agent(s) and his/her real estate agency. While a split based on the percentage received by the broker is generally normal, in some brokerages agents may pay a monthly "desk fee" for office costs, monthly fee, etc., and then retain 100% of the commission received.

Economist Steven D. Levitt famously argued in his 2005 book Freakonomics that real estate brokers have an inherent conflict of interest with the sellers they represent because their commission motivates them to sell quickly more than it motivates them to sell at a higher price. Levitt supported his argument with a study finding brokers tend to put their own houses on the market for longer and receive higher prices for them compared to when working for their clients. He concluded that broker commissions will reduce in future.^[15] A 2008 study by other economists found that when comparing brokerage without listing services, brokerage actually significantly reduces the average sale price.^[16]

See also

References