Real estate broker
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A real estate broker is a party who acts as an intermediary between sellers and buyers of real estate and attempts to find 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 clients. Estate agent is the term used in the United Kingdom to describe a person or organization whose business is to market real estate on behalf of clients.
In the US, real estate brokers and their salespersons (commonly called "real estate agents") assist sellers in marketing their property and selling it for the highest possible price under the best terms. When acting as a Buyer's agent with a signed agreement (or, in many cases, verbal agreement), they assist buyers by helping them purchase property for the best possible price under the best terms. Without a signed agreement, brokers may assist buyers in the acquisition of property but still represent the seller and the seller's interests.
In most jurisdictions in the United States, a person is required to have a license in order to receive remuneration for services rendered as a real estate broker. Unlicenced activity is illegal, but buyers and sellers acting as principals in the sale or purchase of real estate are not required to be licenced. In some states, lawyers are allowed to handle real estate sales for compensation without being licenced as brokers or agents.
Contents [hide]
1 The difference between salespersons and brokers
2 Agency relationships with clients versus Non-Agency relationships with customers
2.1 Transaction brokers
2.2 Dual Agency
3 Types of services that a broker can provide
4 General
4.1 Services provided to both buyers and sellers
5 Real estate brokers and sellers
5.1 Services provided to seller as client
5.2 The "listing" contract
5.3 Brokerage commissions
5.3.1 Lockbox
5.4 Shared commissions with co-op brokers
5.5 Potential points of contention for agents
6 Real estate brokers and buyers
6.1 Services provided to buyers:
7 The impact of globalization on real estate brokers' activities
8 Real estate brokers / agents and further education
8.1 NAR educational requirements and recognized designations
9 Footnotes
10 See also
11 External links
[edit] The difference between salespersons and brokers
In the past, when brokers (and their agents) only represented sellers, the term ‘’real estate salesperson’’ may have been more appropriate than it is today, given the different ways that brokers and their agents can help a buyer through the process rather than simply “sell’’ him or her a property. Legally however, the term ‘’salesperson’’ is still used in many states to describe a real estate agent.
Today in many states, the real estate agent (acting as an agent of the broker with whom he/she is employed) is required to disclose to prospective buyers and sellers who represents whom. See below for a broker/agent’s relationship to sellers and their relationship to buyers.
While some people may refer to any licensed real estate agent as a real estate broker, a licensed real estate agent is a professional who has obtained either a real estate salesperson's license or a real estate broker's license.
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: When a person first becomes licensed to become a real estate agent, he/she obtains a real estate salesperson's license from the state in which he/she will practice. To obtain a real estate license, the candidate must take specific coursework (of between 40 and 90 hours) and then pass a state exam on real estate law and practice. In order to work, salespersons must then be associated with (and act under the authority of) a real estate broker.
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: After gaining some years of experience in real estate sales, a salesperson may decide to become licensed as a real estate broker. 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 such as New York allow licensed attorneys to become real estate brokers without taking any exam. In states, such as Colorado, there are no "salespeople", as all licensees are Brokers.
A REALTOR, pronounced “Re-al-tor” (rē΄əl tōr), is a real estate salesperson or broker who is a member of the National Association of Realtors (NAR). All Realtors are brokers/salespersons, but not all brokers/salespersons are Realtors.
[edit] Agency relationships with clients versus Non-Agency relationships with customers
Traditionally, the broker provides a conventional full-service, commission-based brokerage relationship under a signed listing agreement with a seller or "buyer representation" agreement with a buyer, in most states thus creating under common law an agency relationship with fiduciary obligations. Some states also have statutes which define and control the nature of the representation. These are then clients of the broker.
Agency relationships in a residential real estate transactions involves the legal representation by a real estate broker (on behalf of a real estate company) of the principal, whether that person or persons is a buyer or a seller. The broker (and his/her licensed real estate agents) then becomes the agent of the principal who is the broker’s client.
In a non-agency situation (where no written agreement nor fiduciary relationship exists), a real estate broker (and his agents) works with a principal who is then known as the broker’s customer. Examples of this would be when a buyer has not entered into a Buyer Agency agreement with the broker, and buys a property where the broker is the sub-agent of the seller’s broker; or where a seller chooses to work with a transaction broker.
[edit] Transaction brokers
Some state Real Estate Commissions, notably Florida's [1] after 1992 (and extended in 2003) and the Colorado's [2] after 1994 (with changes in 2003), created the option of having no agency nor fiduciary relationship between brokers and sellers or buyers. The transaction broker assists buyers, sellers, or both during the transaction without representing the interests of either party. They may be then regarded as customers.
As noted by the South Broward Board of Realtors, Inc. in a letter to State of Florida legislative committees [3]:
"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" [4] and the statute required written disclosure of the transaction brokerage relationship to the buyer or seller customer only through July 1, 2008.
In both Florida and Colorado's case, dual agency and sub-agency (where both listing and selling agents represented the seller) no longer exist.
[edit] Dual 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 (see above) 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 represents 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 (notably Maryland[5]), 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 “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.
[edit] Types of services that a broker can provide
Since each state's laws may differ from others, it is generally advised that prospective sellers or buyers consult a licensed real estate professional.
Somes Examples:
Comparative Market Analysis - 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).
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 "Sale By Owner" sellers.
Full Residential Appraisal - but only, in most states, if the broker is also licensed as an appraiser.
Home Selling Kits - guides to 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.)
[edit] General
The sellers and buyers themselves are the principals in the sale, and real estate brokers (and the broker's agents) are their agents as defined in the law. However, although a real estate agent commonly fills out the real estate contract form, agents are typically not given power of attorney to sign the real estate contract or the deed; the principals sign these documents. The respective real estate agents may include their brokerages on the contract as the agents for each principal.
The use of a real estate broker is not a requirement for the sale or conveyance of real estate or for obtaining a mortgage loan from a lender. However, once a broker is used, the settlement attorney (or party handling closing) will ensure that they be paid. Lenders typically have other requirements, though, for a loan.
[edit] Services provided to both buyers and sellers
In addition to the services to sellers and buyers described below, most real estate agents coordinate various aspects of the closing.
Real estate brokers (and their agents) typically do not provide title service such as title search or title insurance, do not conduct surveys or formal appraisals of the property such as those required by lenders, and do not act as lawyers for the parties, although they may "coordinate" these activities with the appropriate specialists. Some real estate brokers may be associated with loan officers who may help to finance buyers to make their purchase.
Regardless of whether a real estate agent assists sellers or buyers of real estate, negotiation and financing skills are important.
[edit] Real estate brokers and sellers
[edit] 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 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 this goal of finding buyers, a real estate agency commonly does the following:
Listing the property for sale to the public, often on a Multiple Listing Service, in addition to any other methods.
Based on the law in several states, providing the seller with a real property condition disclosure form, and other forms which may be needed.
Preparing necessary papers describing the property for advertising, pamphlets, open houses, etc.
Generally placing a "For Sale" sign on the property indicating how to contact the real estate office and agent.
Advertising the property. Advertising is often the biggest outside expense in listing a property.
In some cases, holding an Open house to show the property.
Being a contact person available to answer any questions about the property and to schedule showing appointments
Ensuring buyers are prescreened so that they are financially qualified to buy the property; the more highly financially qualified the buyer is, the more likely the closing will succeed.
Negotiating price on behalf of the sellers. The seller's agent acts as a fiduciary for the seller. This may involve preparing a standard real estate purchase contract by filling in the blanks in the contract form.
In some cases, holding an earnest payment cheque in escrow from the buyer(s) until the closing. 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.
[edit] The "listing" contract
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 fullfill agreed-upon terms specified within that contract. The seller's real estate is then listed for sale, often on a Multiple Listing Service (MLS) in addition to any other ways of advertising or promoting the sale of the property.
In most of North America, where brokers are members of a national association (such as NAR in the United States or the Canadian Real Estate Association), 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 and how much, if any, will be offered to a co-operating broker who may bring a buyer. Without an offer of compensation to a co-operating broker (co-op percentage or flat fee), the property may not be advertised in the MLS system.
[edit] Brokerage commissions
In consideration of the brokerage successfully finding a satisfactory 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 satisfactory buyer for the real estate for sale, the successful negotiation of a purchase contract between a satisfactory buyer and seller, or the settlement of the transaction and the exchange of money between buyer and seller.
In North America a commission in the 5?o 7?ange is considered "standard" for residential real estate and is typically paid by the seller at the closing of the transaction. Commissions are negotiable between seller and broker. The commission could also be paid as flat fee or some combination of flat fee and percentage, particularly in the case of lower-priced properties, vacant lots, or other unusual real estate. The details are determined by the listing contract.
However, some brokers charge as much as 10?hile others will offer services for 1?Fee-for-service or flat-fee real estate brokerages are also increasing in popularity. This is not, however, the norm throughout the world. In Australia, for example, listing agents are paid 1?nd very few buyers use an agent. If they do, they pay out-of-pocket.
Out of the commission received from the seller, the broker will typically pay any expenses incurred to do the work of trying to sell the listed properties, such as advertisements, etc.
Real estate brokers who work with lenders may not receive any compensation from the lender for referring a client to a specific lender. To do so would be a violation of a (US) federal law known as the Real Estate Settlement Procedures Act (RESPA). All compensation to a broker must be disclosed to all parties.
[edit] Lockbox
With the sellers’ permission, a lockbox is placed on homes that are occupied and, after arranging an appointment with the home owner, agents can show the home. When a property is vacant or where a seller may be living elsewhere, a lockbox 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 lockbox contains the key to the door of the property and the box can only be opened by licensed real estate agents (often only with authorization from the listing brokerage), by using some sort of secret combination or code provided by the brokerage or the issuer of the lockbox.
Lockboxes come in two varieties - mechanical and electronic. Mechanical lockboxes utilize a combination dial or special mechanical key and are readily purhased at local home improvement centers or over the internet. Mechanical lockboxes offer the most basic protection of the homeowner's key and therefore expose the most risk of unmonitored or potentially unauthorized access to the home during the sales process. The risk stems primarily from an agent forgetting to change the combination after each sale. The frequency of use of mechanical lockboxes by agents has steadily declined due to the availability of more secure electronic lockboxes.
Electronic lockboxes increase the level of security because agents wishing to show a property must have a vaild electronic key to open the box. The electronic key must be renewed or refreshed at regular intervals by the agent otherwise the key deactivates itself preventing access to the lockbox contents. Electronic keys can range from credit card sized smart cards to a separate electronic box. In addition to greater security, electronic lockboxes typically record all key access activity internally. This access log can be downloaded and reviewed by the listing agent to determine the date, time and person accessing the lockbox. Electronic lockboxes also offer a host of other features such as controlling allowed showing times, homeowner privacy modes, special showing restrictions etc.
[edit] Shared commissions with co-op brokers
If any buyer's broker (or any of his/her 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 in the event no other brokerage firm is involved and no co-op commission is 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.
[edit] Potential points of contention for agents
Real estate commissions are becoming a point of controversy. Home values in many areas have quadrupled over the past 20 years. This may be contributing to the increased number of licensed agents and growing competition between them. The number of real estate agents in areas tends to rise when home values do, and the productivity of existing agents goes down. The rewards have increased, but so have the demands of clients and business risks faced by agents. In North America, agents have had to become familiar with marketing through the internet as well as traditional print and other media. Additionally the law is complicated with issues such as defects in housing, grow houses and other issues of which the agent is the front line defense for his client. There is more liablity than ever in advising buyers and sellers.
Another controversy exists for the commissions to real estate agents. If a listing agent sells a property for any amount above the listed price, he in turn will make additional income. In theory, this will motivate him/her to get top dollar price for his client, the seller. However, if the agent representing the buyer attempts to obtain a lower sales price for his client, then he/she would make a lower commission. Thus, it could be considered to be in the agent's best interest to advise his client to purchase the property at a higher price.
In practical terms, there is rarely a great enough difference between the listing (asking) price and the negotiated selling price to make a significant difference between the commissions generated on each side, and certainly hardly enough to justify an agent failing in his fiduciary duty to obtain the best terms for his/her client.
Another potential conflict of interest exists when a listing agent in a very active real estate market has incentive to sell properties quickly at unnecessrily low prices in order to benefit from a high volume of sales.
In any case, agents who create satisfied clients and develop subsequent referrals are likely to do far better in the long run.
[edit] Real estate brokers and buyers
[edit] Services provided to buyers:
Buyers as clients
With the increase in the practice of buyer brokerage in the US, especially since the late 1990s in most 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 real estate brokerages choose only to represent buyers in an exclusive buyer's agency relationship and do not take "listings" from sellers.
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 affordability.
Takes buyers to and shows them properties available for sale.
When deemed appropriate, prescreens buyers to ensure they are financially qualified to buy the properties shown (or uses a mortgage professional to do that task).
Negotiates price and terms on behalf of the buyers and prepares standard real estate purchase contract by filling in the blanks in the contract form. The buyer's agent acts as a fiduciary for the buyer.
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.
Find real estate in accordance with the buyers’ needs, specifications, and affordability.
Take buyers to and shows them properties available for sale.
When deemed appropriate, prescreen buyers to ensure they are financially qualified to buy the properties shown (or uses a mortgage professional to do that task).
Assist the buyer in making an offer for the property.
[edit] The impact of globalization on real estate brokers' activities
Globalization has had an immediate and powerful impact on real estate markets, making them an international working place. The rapid growth of the Internet has made the international market accessible to millions of consumers. A look at recent changes in homeownership rates illustrates this. Minority homeownership jumped by 4.4 million during the 1990s, reaching 12.5 million in 2000, according to the Fannie Mae Foundation. Foreign direct investment in U.S. real estate has increased sharply from $38 billion in 1997 more than $50 billion in 2002 according to Census data.
Most local real estate agents view the foreign market as a significant revenue potential and may have already worked with international clients in their local market, new immigrants or more sophisticated investors from different cultures and from other countries. For example, they are providing value-added services to an overseas relocation employee figure out which inoculations his or her children will need as well as the steps needed to register a car in the United States. Real estate brokers want to keep central to the transaction, protect the best interests of their members and address the unique needs of each multicultural global client by acquiring specialized training and designations. (See below for more)
Recently the Mexican association of real estate practitioners in Mexico, AMPI, and the NAR, National Association of Realtors in the US, signed a bilateral contract for international real estate business cooperation. Also at the local level, many other state and local associations are helping other countries achieve the same result. For instance, in New Mexico, a historically multicultural state, under the RANM, Realtor Association of New Mexico and the President’s Advisory Council, is looking into forming an ambassador association to help a foreign country into signing a bilateral agreement with the NAR. In New Mexico, there are 4500 licensed real estate professionals and only 14 or 15 CIPS designees, out of whom, only 6 speak a language other than English.
[edit] Real estate brokers / agents and further education
In addition to completing the educational requirements for a state real estate license, most states issue real estate licenses for limited time periods and require real estate professionals to complete a certain number of hours of further education on an annual or biannual basis in order to renew their licenses.
Required course hours range from 10 to 20 per license period. Typically, some specific courses are required to be taken; these would include real estate law updates.
[edit] NAR educational requirements and recognized designations
As adherants to NAR's Code of Ethics, Realtors are required to update their aquaintance with the Code every 4 years by taking a course, available on-line or "live".
However, Realtors, as members of NAR, also have the option of studying for additional certifications in a variety of specialties, several of which are backed by NAR with offerings of certification and update courses available nationwide [6].
The most well known NAR sponsored designations are the following:
Accredited Buyer Representative (ABR). The Real Estate Buyers Agent Council has over 40,000 members and is the largest association of real estate professionals focusing on all aspects of buyer representation. Af the REBAC members, over 30,000 have completed REBAC’s two-day course and provided documentation of buyer agency experience. Linked to the ABR is the ABRM, Accredited Buyer Representative Manager (ABRM) for managers.
Accredited Land Consultant (ALC). ALC’s are the recognized experts in land brokerage transactions of all kinds of specialized land services inclusing farms and ranches, raw land sales and development.
CCIM, Certified Commercial Investment Member (CCIM). CCIMs are recognized experts in commercial real estate brokerage, leasing, valuation and investment analysis. There are more than 7,500 designees and an equal number of candidates principally in North America, but also in Asia and Europe.
Certified Property Manager (CPM). Geared to real estate property management specialists, designees handle all forms of management from residential to commercial to industrial.
Certified Real Estate Brokerage Manager (CRB). The designation is awarded to REALTORS® who have completed the Council's advanced educational and professional requirements. CRB designees consistently increase their level of industry knowledge, advance their earning and career potential, increase their firm’s profitability and benefit from active involvement in our network of real estate professionals.
Certified Residential Specialist (CRS). Designees, with 44,000 members - 4?f NAR members - who average 43 transactions per year and earn four times as much as the average Realtor, belong to the Council of Residential Specialists which is the largest affiliate of NAR. They are involved in over 27?f all transactions because the consumer prefers to work with a more knowledgeable and seasoned brokers or agents. Requirements for this designation include a total of at least 25 transactions (or specific $$ volume of sales) over a specific time period, significant experience, as well as complete rigorous educational requirements.
Certification for Internet Professionalism (e-PRO). An e-PRO is a Realtor who has undergone a new training program presented entirely online in order to be certified as Internet Professionals. NAR is the first major trade group to offer certification for online professionalism which involves all aspects of doing business on the internet.
Certified International Property Specialist (CIPS). Realtors with the CIPS designation have both hands-on experience in international real estate transactions, Whether traveling abroad to put transactions together, assisting foreign investors, helping local buyers invest abroad, or serving an immigrant niche in local markets. CIPS designees have also successfully completed an intensive program of study focusing on critical aspects of transnational transactions, including currency and exchange rate issues and cross-cultural relationships, regional market conditions, investment performance, tax issues and more. The CIPS network is comprised of 1,500 real estate professionals from 50 countries who deal in all types of real estate.
Counselor of Real Estate (CRE). A CRE designee is one of only 1,100 by-invitation-only members of an international group of professionals who provide seasoned, objective advice on real property and land-related matters.
Graduate of the REALTORs’ Institute (GRI). The GRI designation is held by 19?f Realtors and courses are offered through state Realtor Associations with 90 hours of coursework on marketing and servicing listed properties to real estate law. In a 2003 survey, NAR has determined that GRIs earned over $33,200 more annually than non-designees.
Real Estate Professional Assistant (REPA). Designed for administrative assistants or employees of Realtors (who may or may not hold a real estate license), a two-day certificate course provides an intensive introduction to the real estate business and to the specific ways support staff can become valuable assets to their employers.
[edit] Footnotes
^ >2005->Ch0475->Section 278#0475.278 Florida's Transaction Brokerage proposal
^ Colorado: Types of brokerage outlined, including Transaction Brokerage
^ South Broward Board proposal
^ Florida's Transaction Brokerage law from Realty Times article
^ Maryland's Agency Disclosure form with types of agency allowed
^ Realtor.org is the source for the designation information included here
[edit] See also
Real estate
Realtor
Estate agent (United Kingdom)
Independent contractor
Portable Employer of Record
Flat fee mls
[edit] External links
National Association of Realtors
Estate Agency Affairs Board of South Africa
Tips from US Department of Housing and Urban Development
The Wall Street Journal’s Guide to Property, Real Estate Journal
Retrieved from ""http://en.wikipedia.org/wiki/Real_estate_broker"
Answered By: kosmoistheman - 12/20/2006 |