Unlicensed Real Estate Assistants

Published on Feb 13, 2018

No Description

PRESENTATION OUTLINE

Real Estate Assistants

Photo by Crew

What We'll Cover

  • Agency principals
  • Employer -- Employee relationship
  • Authorized activities
  • Prohibited Activities
Photo by williamcho

Why Does a License Matter?

Photo by thinkpanama

Percent of REALTORS with at least one personal assistant:

Agency Relationship

Principal -- Agent
Photo by Tim Gouw

Agency is the fiduciary relationship that arises when one person (a “principal”) manifests assent to another person (an “agent”) that the agent shall act on the principal's behalf and subject to the principal's control, and the agent manifests assent or otherwise consents so to act.

Employee v. Independent Contractor

  • "Control" test
  • Furnishing of equipment
  • Method of compensation
  • Right to fire
Photo by kitakitts

At-Will Employment

Exceptions to At-Will Employment

  • Discriminatory reasons
  • Pursuit of statutory rights
  • Violations of social policy

Respondeat Superior

Vicarious Liability

Vicarious Liability

  • Causes employer to carefully select and train employees
  • Employer receives benefit, should also bear burdens
Photo by TalentEgg

Liability Factors

  • Activity that employee is suppose to perform?
  • Activity occurred during authorized time and at authorized place
  • Intent is to serve purposes of employer

Employer Generally NOT liable for:

  • Frolic and Detour
  • Commute to and from work
  • Assault (with exceptions)
Photo by Kumar Appaiah

Employment Discrimination

  • Race
  • Religion
  • Gender
  • Age
  • Disability
Photo by EU Social

Nonlicensed Individual

  • ORS 696
  • Person who has not obtained a real estate license
  • Person whose licensed has lapsed, expired, or revoked or suspended

Supervision

(ORS 696.310)

[A] lawyer shall be
responsible for conduct of such a person that would be
a violation of the Rules of Professional Conduct if
engaged in by a lawyer if:
(1) the lawyer orders or, with the knowledge of the
specific conduct, ratifies the conduct involved; or
(2) the lawyer is a partner or has comparable
managerial authority in the law firm in which the
person is employed, or has direct supervisory
authority over the person, and knows of the
conduct at a time when its consequences can be
avoided or mitigated but fails to take reasonable
remedial action.

Photo by Leshaines123

Acting as an unlicensed real estate broker and salesman constitutes a violation of Section 440–a of the Real Property Law. Subdivision 1 of Section 442–e provides that “any person who violates any provision of this article shall be guilty of a misdemeanor.”

Photo by Thomas Hawk

What Can Unlicensed Assistants Do?

Photo by classic_film

Answer the phone, take messages, and
forward calls.

Photo by MoShotz

Collect demographic information.

Photo by William Iven

Provide information on a property
(limited to the information contained
on prior advertisements).

Follow up on the completion of contingency
requirements in transactions,
including arranging for repairs.

Photo by Ken Lund

Check on the progress of required financing
in transactions.

Photo by Alan Cleaver

Check with the escrow company to track
the status of a file

Photo by katerha

Schedule or confirm appointments for:
° Licensees to list or show a property.
° A buyer with a loan officer.
° A property inspector to inspect a
home.

Photo by photosteve101

Prepare advertising copy for review,
approval, and use by the licensee (including
review and approval by the
licensee’s principal broker as appropriate).

Photo by netan

Install signs and lock boxes on listed
properties.

Photo by bradleygee

Assist a licensee at an open house (can
hand out flyers, but cannot discuss the
property).

Type and mail documents involved in
transactions.

Photo by jamesjyu

Property Management

  • Negotiate leases
  • Check tenant references
  • Collect rent
  • Physically maintain property
  • MUST be in writing
Photo by lpotatol

Prohibited Activities

Photo by thirstycactus

Sharing compensation or paying finders fee

Photo by bark

Show real estate to prospective buyers.

Photo by Ben McShea

Hold open houses.

Answer questions relating to a transactional
document

Photo by Helloquence

Give instructions to inspectors, appraisers,
or maintenance/repair people.

Photo by Hindrik S

Engage in negotiations with clients in
a transaction

Photo by Paul Bence

Other Issues

  • Signing on your behalf
  • Notarizing
  • Handling client trust funds
Photo by Hammer51012

Tips

  • Review everything
  • Pay for training & education
  • Hourly compensation

Kevin Harker
kevin@calaw.attorney
503-922-1939

Photo by blmiers2

Insurance

Business Owners Policy

  • Property Loss
  • Business Interuption
  • Liability
  • Does NOT include professional liability or workers comp
Photo by bark

Workers' Compensation

Photo by daily sunny

Unemployment Insurance

Photo by Bytemarks

Employee Handbooks

  • Define sick and vacation pay
  • State nature of employment relationship
  • Outline company policies