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Escrow
Q. I represented the buyer in a failed transaction. I’m now holding the buyer’s escrow deposit in my escrow account, but both parties have made demands on the money. I notified the Florida Real Estate Commission (FREC) of the conflicting demands within the required 15 days, and I’m waiting on an escrow disbursement order (EDO). However, the seller has now sued the buyer for the deposit money. What do I do next?

A. Pursuant to Chapter 61J2-10.032(2)(c), Florida Administrative Code (FAC), a broker holding money in escrow has 10 business days to notify FREC if, prior to receipt of an EDO, the parties settle the matter or take it to court.

Commissions
Q. I represent a buyer who wants to present a full-price cash offer to a seller whose property is listed in our local MLS. If the seller doesn’t accept this offer, am I still entitled to the commission that’s offered to the cooperating broker in the MLS? After all, I brought in a buyer who was ready, willing and able to purchase the property under the seller’s terms and conditions.

A. No. The listing broker makes the offer of compensation in the MLS to the cooperating broker for bringing in an offer resulting in a successful transaction. This means a cooperating broker isn’t entitled to the offer of compensation unless the seller accepts the buyer’s offer and the purchase and sale contract closes, or, in the case of a rental listing, there is an executed lease.

The seller is never required to accept or reject any offer, even if it meets his or her specifications completely (although this may create an issue between the seller and the listing broker, depending on the language in their listing agreement).

Q. May I represent a buyer in her purchase of an out-of-state property, and, if so, will I still receive my commission from the listing broker?

A. Yes. Pursuant to Section 475.25(1)(h), Florida Statutes, a cooperating broker may receive a commission from a listing broker who is properly licensed under the laws of another state.

However, a sales associate or broker licensed in Florida cannot step foot into another state, where he or she isn’t properly licensed to practice real estate, and assist in any way with the transaction as it occurs there. All activity must be limited to what the sales associate or broker can do for the client while remaining in Florida.

Q. I’m a sales associate representing a buyer. The MLS states that in addition to the offer of compensation, the listing office will provide a vacation as a bonus to the buyer’s agent. I know the commission must be paid through my broker. However, must the vacation also be paid through my broker, even though it’s offered directly to the buyer’s agent?

A. Yes. All compensation paid to a buyer’s agent must pass through the agent’s broker. Stating that the vacation will be paid as a bonus to the buyer’s agent is inaccurate, and providing the vacation directly to the agent instead of the broker would result in both the listing broker and the buyer’s agent committing violations of Section 475.42(1)(d), Florida Statutes.

Disclosures
Q. I’m purchasing a home. Does the Florida Administrative Code (FAC) require a real estate licensee to disclose his or her licensee status when buying or selling real estate for personal use? 

A. No. Rule 61J2-10.025(1), FAC, states that all of a licensee’s advertising must be done “in a manner in which reasonable persons would know they are dealing with a real estate licensee.”

However, there is no affirmative legal requirement for a licensee to disclose his or her status during a transaction in which he or she is the buyer or seller.

Note, though, that a licensee could be prosecuted under Section 475.25(1)(b), Florida Statutes, for failing to honestly disclose his or her status if asked. Even if the question doesn’t arise, the licensee may be liable if the other side of the transaction alleges the licensee concealed his or her status for personal benefit and to the detriment of that party.

Any real estate licensee who is also a Realtor® is governed by Articles 4 and 12 of the Realtors Code of Ethics, which mandate ethical disclosure of a Realtor’s personal interest and/or professional status during a personal transaction.