We are just all sitting around thinking, Damn! We just spend a lot of money setting up a brand new office and then get emails from other agents from other offices wondering whats up with this. We didnt know until we looked it up on the local FSBO sites ourselves.

I havent had a sit down with the agent yet about what he was thinking. Im wondering where we went wrong. Our office offers great splits 25/75 and a whoppin 90 percent on sale of primary homes. I have a problem with telling my agents what to do with their own assets but this stunt is really going to hurt our rep in the area as we are starting up and expanding. Our competitors that kindly informed me are having a snickerfest over this, Im sure.

I just had a nearly for sure FSBO convert in the same neighborhood ready to list. Now this will confuse them and I may not get that listing now.

Has this happened to any of you yet? He did manage to remember to say "by agent" in the ad at least. Could I be liable as his sponsor if he mucks up something seriously legally and ends up with a complaint?

Ouch! This really bruises my ego.

Did you train him at all?

Does he know that FSBO's attract the wrong kind of buyer?

fair enough question. Yes, barely trained I have to admit. He transferred in from another agency. Licensed since 2003. I think others might give him the cold shoulder treatment when he does come in the office. Lots of mouths dropping when he did that.

I know agencies where the policy allows agents buy and sell their own personal residence through the company without owing a commission to their sponsoring broker. If the transaction is co-broked or through MLS they are responsible for the commission to the other agency. To avoid abuse it is limited to their personal residence, no investment speculation!

I assume their intent is to discourage their agents from selling as a FSBO.

I BET HE OVER-PRICED IT TOO!

Explain to him that he is hurting his profession by putting up a FSBO sign. How can he preach to a seller about using a Realtor when he is doing the exact opposite. And that exposing the home to other Realtors will bring MORE BUYERS.

I see this often in my area. Most of these agents are clueless to the business and really don't sell many homes.

Regarding your legal question, did you contact the E&O insurance company and ask them if the policy is affected by an insured agent selling fsbo?

"He did manage to remember to say "by agent" in the ad at least. Could I be liable as his sponsor if he mucks up something seriously legally and ends up with a complaint?"

That's not adequate disclosure!You need to contact your local real estate commission for the proper wording of conveyance.

We would have to put in our state.Agent holds a liscence as a realtor in the state of Georgia.The reason is buy agent might be open to misintepretation by a potential buyer.

As far as being liable "are you the principal broker of your own company?" if yes then you are responsible for most actions of your agents.Know if you have policies in place and the agent does not follow those after proper training generally r.e. commission do not hold the broker at fault,the only time is if you were negligent by not having policies in place to cover such subjects.


Now if the agent is part of a team you also need to have policies defined for your team and a copy submitted and approved from your principal broker.There is usually an ic agreement between you and your pricipal broker,then another agreement between you and your team members,then there would be a third agreement for any employees under your team and how they would be compensated such as secretaries,etc.

He might not be even allowed to put the fsbo sign up,it should cover this in the ic agreememt with the principal broker.

Maybe you should get over your ego? You're making a mountain out of a mole hill. Why can't you respect his decision to sell his personal residence as he pleases?

I agree with Ericka partially... get over it.

Even though it's not favourable for business & sets a bad example in the office, but the "Agent" will lose more eventually. That will, in fact, set an even bigger example........

Realtors Get Paid for a reason..... What U have in your office is an Agent....... He doesn't have, what it takes to be a REALTOR.....YET...!!!!!!!!

He will learn his lessons, when someone points to him that he sold his own home FSBO, why should they List with him.... 10% saving will prove very expensive......

Maintain a cool attitude...... that's what keeps & retains good agents..... That's more important......

SailorKev,
You should have had this covered in the IC agreement. It should have stated that agents are not allowed to advertise their principle properties FSBO.

Erika.
Respect his decision??? You must be kidding or should be. The problem is the message the agent is sending to sellers. An agent is an idiot if he does not list the property except if the broker is taking anything but a transaction fee for the sale or if you have the property sold without putting a sign on the property. Listing your own home is just another way of getting your name out and any expenses are deductible as business expenses. If you FSBO you will not be able to deduct those expenses as legitimate business expenses.

CalRealtor2007,
Your agent vs Realtor comment is complete Bull! I do support NAR's legislative actions and COE but I also know and respect agents that are not REALTORS who are just as knowledgeable and professional. Implying otherwise makes you look foolish!

When I worked for a broker any buy/sell I did of my own property was treated exactly like any other transaction, same split. On the upside that meant free advertising in the broker paid weekly ad. I saw it as a trade off, I'm using the brokerage's office space, fax machine, phones etc to sell or buy for myself it seemed fair to me.

Now that I have my own brokerage I gotta say buying/selling & 100% commission is suhweeeet.

Yeah, imagine that, respecting another adult's personal decisions. Why is that so hard to understand?? A broker has no business meddling in the agent's personal affairs.

The agent might have had a very good reason that the broker is not aware of. If the agent is an idiot, he has the right to be an idiot. It appears to me that the broker has an inflated ego and is short on management training. This is simply something the broker should stay out of, as a matter of common sense.

Does your mechanic get irate when you tinker with your own car..change the oil or replace the alternator? That is solely YOUR personal decision.

Since the agent is in the real estate business selling their own primary residence is also business related. The act of an agent selling FSBO has an effect on thier business and the brokers business. Imagine trying to convince a seller to list if they learn you are selling FSBO. Talk about shoting yourself in the foot! If you cannot grasp that perhaps you are in the wrong line of work. BTW are you agent or Broker?

It should have been covered in the IC agreement, which it wasnt. Hindsight is great isnt it? As the broker of a newly established office, we havent had enough happening to inflate my ego too far. But most of my new listings have ironically come from FSBO converts. They have tinkered away 4 months with the 99 dollar flat fee advertising and saw the light.

The reason this particular home is for sale, is they bought another property fo build on and the new home is under construction. The agent needed my services to get them this lot since he didnt have his Realtor/MLS up then. I personally had to do the whole thing as if it were a regular buyer off the street, the offer etc and as he was one of my sponsored licensees got his lion's share of the commission back a week out of settlment. I REALLY could have used that money! I bent over backwards, and falsely assumed that not only would he be listing his present home but I would also be asking him to be the lister on another former FSBO who would like to list with our company. Now, after seeing my agents name and home on the exact same http://www.rockfordfsbo.com site, he informed me he would like to "give it a few more weeks".

I actually do not look at this as a run of the mill FSBO. This FSBO website is my number one competitor when seeking listings. Not C-21, not Keller Williams, but rockfordfsbo.com A site that says condescending remarks like "smart realtors know this is the way to go" and "We dont compete with realtors" If my agent ran out to Home Depot and got a For Sale by Owner sign, I might not have been as upset. But this is my agent electing to use the services of another company to do what we do for a living. 12 percent of homes in our area are FSBO. That is a threat to my livlihood. I feel more like my agent is going to the competition that I do that he is doing it "on his own"

We have reached a consensus, to ask the agent to seek out another sponsoring broker/office. I think it is in the best interest of the agent, my office and the other agents. I dont think he would be comfortable here. Im giving him some time to find the right office and then Ill sign off on his transfer and take his license off my wall. Very unfortunate since we are friends from high school that we wont work together. Ill preserve my friendship but I dont want a non-producing or negative influence on an office just starting up.

Thank to all for your advice and input. It helps a great deal while Im making this new office.

Hi SailorKev -

I think you are making the right decision. We had a similar incident at our office a few years back.

Best of luck to you in your brokerage!

Monday 4PM.....

My wayward agent sends me an email saying, I want to list ASAP. Didnt take even a week to discover he couldnt do anything on his own. No contracts, no disclosure forms, not even an active member of the MLS that his house is in. He is a member of the other countys MLS.

So, I never got a chance to do all those evil things I was dreaming up. My tongue is so sore from biting it all week avoiding saying something I would regret.

Now that I have the listing, Ill calmy sit him down and explain tactfully that he blew one of my "almost for sure" listings when the seller kept calling me and saying hey, is this your agents house? Is this the one? Why isnt he listing it with the office?

But, although this one is going to work out, I have already made a plan on Wednesday to revise my IC contracts and put folks on notice that they are either in the business or they are not. If they want to be in the business under my sponsorship, I will not tolerate being embarrassed or having my rep questioned by their actions.

I prayed about this one hard and the situation worked out.

Great news! (Could he be browsing this forum?)

I am certain that you can come up with a fair listing plan for your agents.

Oh, so now you're dragging God into this situation? I'll bet God conveniently sided with you, eh? LOL

I strongly suggest that all of you get some formal college-level education in management. What I've read in this thread is ridiculous.

Good luck trying to enforce that provision in a court of law. It's worthless. Now you're trying to manage through intimidation. You are in desperate need of a management consultant to clarify your perspective on effective management.

So what college level management training have you had? Whatever it was you should get a refund. The ridiculous one in this thread is you and also the minority opinion if you had noticed.

Are you really that blind that you cannot see how an agent advertising FSBO hurts the brokerage and sends conflicting messages to potential clients?

So Erika are you even a broker?

The provision is worthless in court? Now what law school did you graduate from?

It has nothing to do with the court,the agent complies or they leave.They simply agree to the ic agreement or not.Last time I checked being able to list your home fsbo IS NOT a protected class as an agent of a brokerage firm.

The ic agreement is how that principal broker chooses to do business,some agents will like it and some will find some ic's too restrictive.That is why there are so many flavors out there.

Kev just remember NEVER,EVER hold a liscense transfer because of fees owed by the agent or a disagreement you are having with them.You could get immediately sanctioned by the real estate commission for doing that.This is one of the number one violations that principal brokers are known for holdong the liscensee hostage and the r.e. commissions frown heavily upon it.

Believe it or not, Erica, a lot of people pray over decisions. They may not always make the right decision, but who does?

Who are you to ridicule someone's spiritual life? What right do you have? It's perfectly fine for someone to keep spiritual and business separate, but for others, their spiritual life and professional life is intertwined.

As a person of faith, I find comments like yours as disrespectful as if you had called me a [racial slur]. Why is it okay to ridicule someone's spiritual life?

The broker better hope and pray hard it doesn't end up in court, or with the IRS.

Restrictive..meaning "control"? Think about that for a while. Go ahead, give it a try. LOL.

Erika,
With every word that comes out of your mouth it becomes more clear that you have absolutely no idea what you are talking about.

So just how long have you been an agent? In your profile it says ecommerce for you occupation so are you an agent or not?

Erica,

I missed your post the first time I skimmed through. I think most brokers or successful business owners use a great deal of "reflective practice" in order to make more sound decisions in the future. I studied this in depth during my MBA work.

This was a typical situation where I was first shocked, stunned and totally confused about my professional relationship with the licensee, my long term personal friendships and how this problem would effect the atmosphere of within my brokerage. The moment we stop thinking, we stop feeling and stop improving on these things is the time to get out.

I have a luxury as a brand new brokerage that many do not. I do not have to change many policies that will become unpopular due to the fact I have little history. New licensees who wish to be sponsored with our firm will be told. "You will not practice real estate outside the office, period." "When you buy or sell your primary home, we are happy to offer you 90 percent of the commission." "Are you cool, with this?" This, by the way is often at our financial loss as we will certainly provide our best full service and attention to the transaction. I cannot tolerate a licensee competing against his own profession or implying that one is better off not bothering with a professional licensed agency. As I said before, with 15 percent of homes in our area FSBO, it is FSBOs who are the number one competitor to my business. Thankfully, an overwhelming majority end up with a Realtor in the end. I wish it was always me, but most often its not. But I know I have set some standards in my own brokerage and will continue to strive to gain respect of the community and promote my profession.

Thanks to all for keeping the sounding board open. Yes, even you Erica, LOL. But I'm not taking down my crucifix on the wall behind my desk yet. I'm glad you are all here to keep me on track while my 2 month old brokerage is still in its infancy.

Kevin
Northwest Illinois
Stateline Realty Solutions
http://www.kevingoleary.com

Concerning this issue, I suggest that some of you speak to an attorney, then to a management consultant, and get back to me.

You won't be gaining any respect by attempting to restrict a person's constitutional rights. That is absurd and very offensive to any intelligent person, RE agent or otherwise. You simply do not have that right, nor should you expect to control your agents to that extent.

You seem to want to use your religious faith and proclaimed religious authority to trump or circumvent the law of the land. If you choose to continue with this attitude in business, you will likely have a nasty legal dispute. The government determines what RE brokers and agents can and cannot do, and that legal authority will ALWAYS trump your private office policies and personal views.

You keep talking but what comes out of your mouth has no basis in fact. Glad you are too dense to let facts get in your way!

ericka:
"The government determines what RE brokers and agents can and cannot do, and that legal authority will ALWAYS trump your private office policies and personal views."

I did not see anything criminal in Kevins statements or policies and I hope the government has better things to do like catching terrorists instead of going after honest RE brokers and agents.

ROFLMBO!!!

Now, that's just too funny.

Super R,
No I would never hold someones license. Basically when someone leaves a broker in Illinois, we sign and date the original license on the wall, make a copy to fax down to Dept of Proff regulation and hand the original back to the salesperson. If an agent wanted to walk out, all they would need to do is take the license off the wall and walk into my office and demand my immediate termination signature. wouldnt argue with that. Its never happened though. Only been licensed as a broker since 2006.

The first statement above in bold is especially revealing, psychologically. It sounds as though the speaker is lecturing or scolding a young child. This is a bizarre way to communicate with and supposedly "manage" adult professionals.

The second sentence in bold, again, is rather bizarre. Suggesting that FSBO's (homeowners) are the broker's competition. What kind of businessperson sees potential clients as competition?? Amazing. Perhaps the broker has forgotten that OTHER BROKERS are his competition, NOT property owners. Brokers compete with each other to get the homeowner listings, which requires effort and skill. This broker wants a guarantee that personal listings will be handed to him by his agents, with no competition, no effort. Clearly a very poor and unrealistic business practice.

Erika:

Since you have a brilliant management mind explain how the following would be handled in other business...

The Ford mechanic who shows up for work every day in a Chevy.

The Starbucks Barista who shows up for work every day with a cup of coffee from the gas station.

The McDonald's employee who goes to Burger King for lunch.

The Target employee who brags about saving so much more at WalMart.

What effect does this type of activity have on fellow employee morale? What could public knowledge of said activity have as an effect on the brand?

The broker in this case has the right to protect her brand from the actions of an agent who had chosen to use a competitor FSBO service.

The broker in this case also has a First Amendment right to pray regarding her decision.

So anyway Ericka.... tell us what do you actually do in the Real Estate business?

Having said that, each company has the right to make its own written policies.

I know friends and family that work at Toyota that drive GM and Fords etc.

I have a friend that works for Coca Cola and will be fired if he drinks Pepsi product. (Even when he is on vacation in Florida, he will not drink Pepsi.)

My Niece works at Target and also shops at Wal Mart.

My brother-in-law works at ALCOA and prefers aluminum cans over plastic bottles, but drinks out of both.

I bought a house from a competing broker that was the listing agent.

I sell real estate for RE/MAX. I would never sell FSBO, only because you attract the wrong kind of buyer. I do however "help" other fsbo's with marketing: I.E. my 800 number, flyers, a dedicated web-site for fsbo's to advertise, helpful hints on open houses, staging, financing, etc. I look at fsbo's as leads and not competition. I am lucky I guess, that my broker gives me the freedom to do business as I see fit. If I want to "help" fsbo's by giving them a web site to advertise in I can. If I wanted to sell fsbo (which I wouldn't) I could. I consider myself in business for myself as an independent contractor and would hang my license some where else if I was told how to conduct my personal business. That is not to say that I the Broker doesn't also have the right to have his own policies towards fsbo's etc. I just would no choose to work there if I didn't agree with them.

I would think that each Broker would have to have his policies spelled out in the beginning and not make them up and implement them at his whim.

This is true, and I wouldn't expect a new broker to maintain a vague policy in the event that it cost her business from neighboring homes.

Ericka,

Please quit playing symantics on here.If you want to familiarize yourself with the LAW you can read online all the Federal and State Statute Codes out from the goverment websites.

A broker can state what they want to in an ic agreement as long as it is not breaking the law.If someone wants to do property management and the broker doesn't want to offer that,guess what they don't have to!

If someone is doing an activity considered detrimental to the firm,they are a independant contractor and I can let them go.They are not an employee of the company.

It appears that a lot of people are not educated in law. Individuals and companies do not make determinations of a worker's status. Again, the government does. Sure, a business owner can create an IC agreement, but its provisions may be unreasonable and unenforceable, and may create a cause of action for breach of contract and other remedies. The IC agreement may have little or no effect at all in the determination of employee vs. IC status. It's how the worker is actually treated that is determinative.

Hey, you're learning. Isn't that great? LOL

It appears that you like to dodge the question of what your experience in the field of real estate is.



I have heard this before. For instance...if a broker is demanding that the agents be in the office according to a scheduled floor time it could be demonstrated that the agent is actually an employee rather than an independent contractor - or at least, that's how it's been explained to me.

Erika,
As usual you keep missing the mark since IC vs. Employee has absolutely nothing to do with this situation. It is telling that you seem unable to answer simple questions such as are you a real estate professional or just a board troll?
This is a simple case of if the agent feels that he cannot abide by the IC agreement it is time to move to a brokerage that will let him do whatever he wants or to open his own brokerage.


In Super Realtors example of property management it is black & white at least in Illinois. To do property management one must be a broker or work for a broker that does property management. If the broker Does Not do property management and does not carry E&O the covers property management he will not allow any agent to do property management under his license. Does this brokers rule prohibiting property management effect an agents status as IC or Employee? Since you are confused I will give you a clue, NO it has NOTHING to do with employment status.

Please go troll elsewhere!

She is actually right about this. In CA there are several tests to determine if a woker is IC vs employee. You can call them whatever you wish but that doesn't make it so.

The courts have long ago determined the tests for establishing IC status. One of the biggies is how much control the employer can exert over the worker; is the worker paid for a *result*? Those signal IC status.

But luckily it's fairly ez in CA. Agents are a bizarre hybrid. For workers comp purposes they are *employees*. For all other purposes they are IC's.
For tax purposes agents are ICs.

Being in CA has little or nothing to do with the original post as you are well aware. The agent is doing harm to the brokerage by sending confusing signals to the potential clients of the brokerage. This is just cause to terminate the relationship. Do you disagree with that assessment? This was the original topic not some IC vs Employee discussion. Have you not noticed that in all of Erika's posting she has yet to speak with any professional knowledge of real estate. Wonder what other boards she trolls?

Sailerkev can run his office as he see's fit! And that includes certain policies regarding the listing of any individual agents property.

If an agent does not like the policies that SailorKev puts in place, that agent may choose to go work for another broker. It is that simple.

Sailorkev --- just make sure you have all agents sign and date a copy of the office policy and keep it in their file.

Best of luck to you!

Great point, and like I said, a very poor business decision. Sending productive agents to the competition. This broker thinks homeowners are his competition, while he is potentially sending agents to other brokers (his real competition). If he's looking to feed his competition, this is a great way to do it. LOL

Another worthless post by Erika who knows Nothing about Real Estate. Stick to your occupation of eCommerce because maybe you are good at that.

In Arkansas, ads and signs must have 1) The name of the agency, and 2) some disclosure that it is agent owned and even state that the property is owned by a relative of a licensed agent.
This goes so far as to require that we must disclose up front that a buyer is a relative of the licensed agent.

FSBOs were here loooong before there were agents and brokers, and they will always be there. NAR says that over the years, FSBOs make up 15% of the market. I luuuv 'em. I send a letter every 30 days to every FSBO I can locate. There's a bunch of good listings in that gold mine. FSBOs are a 'sphere' or 'farm' whichever you prefer to call them.
Don't fight 'em, USE them.

Marvin, SailorKev is not fighting them. He is trying to get FSBOs to see the value of having a real estate agent representing them. His agent selling his house as a FSBO is basically undermining what SailorKev is trying to do.

Sure can, and he can also RUIN his office as he sees fit. The leading reason for new business failures is inadequate management.

Listen! Law this, law that, ruin this, ruin that.

To whomever started this thread, check your E&O policy. There is a chance you/him/her/whomever is not covered when selling their own home. That should give you enough reason to stop agents from handling any real estate transactions they own or have a financial interests in FSBO or not.

Still Trolling our board I see! From your pervious posts it appears that you do know something about bad management so maybe you could take a college course or two to make you a better manager.

I have stated earlier that I would NOT sell my home as a FSBO. The main reason is the type of buyer it attracts, liability is also a good reason.

Actually, there are many reasons not to sell fsbo as a real estate agent, but I can also see benefits of being a fsbo that happens also to be a Realtor.

1) Look at the hundreds of soliciting letters he will receive from agents looking to secure the listing, along with other marketing materials.
2) The obvious, save the commission.
3) The not so obvious, buyer leads that he will generate from sign calls, advertising calls, and more importantly Open Houses. (Open Houses in recent years have deteriorated with ready, willing, and able buyers with the exception of FSBO's.)
4) These same buyers that go to FSBO's looking to buy might actually need/want a Realtor to sell their home.

I have "helped" fsbo's in the marketing and selling of their home which would be contrary to Sailerkev's objectives. Would I be fired? I personally like working for a Broker that is not competing with me or might have other objectives that would be contrary to my real estate and personal business.

Does this agent have the right to sell FSBO? Unless there is a company policy prohibiting it, absolutely yes. Sailerkev should have all agents sign and date a copy of the office policy and keep it in their file. If Sailerkev did not have that written, shame on him, then I would think he could not implement the policy simply because it "hurts" his case in securing fsbo listings.

My attention was drawn to this thread by a few different occurrences, so I thought I would weigh in.

I think if we weed through some of the hyperbole here, we can see that there is another real issue. That is the potential liability incurred by the broker if their agent decides to sell their home as a FSBO.

The state (well... at least the state of California anyway) holds licensed agents to a higher standard in real estate transactions than they would if both parties were non-licensed. So if this licensed agents ends up in trouble over this FSBO transaction, judgments are less likely to go their way. Since they are an agent in my brokerage, I too am open to legal action.

As a broker, I would be very concerned about the potential liability assumed by my office with this agent selling their home as a FSBO. There is a reason why agents have to work under brokers. Brokers are expected to exercise appropriate supervision of agents to insure that all legal standards are met. For the broker, it is also key to minimize potential liability. If an agent in my office goes off to do their home as a FSBO, I could end up being the target of a future lawsuit since at the time the transaction took place, that licensed agent was working under my license.

I have worked at a few offices in my time, most of them actually have a clause in the work contract that spells out how an agent can sell their own property - which usually prohibits selling their personal property by FSBO.

The idea of a real estate agent working under my license basically doing a transaction that is completely removed from my oversight - outside the transaction workflow developed for the office - gives me the liability heebie jeebies.

R

Rebelbroker

Your right on the money. Locally: That’s absolutely correct. Our regulations were drafted by government attorney’s who decided that the rules that governed their practice of law, should also govern real estate agents and they also incorporated the Code of Ethics into Statutory Regulations.

To put it simply, agents and their brokers can now be prosecuted under a wide range of offences by the regulatory authorities, and if warranted, prosecuted under either or both the Civil and Criminal Justice System and followed by a civil lawsuit resulting in great deal of stress, time and money on the part of both the agent and his or her broker.

Important Notice: This information is provided as basic educational information by the author and is not a substitute for the advice of an expert and/or the advice of a lawyer. There is NO representation as to legality, accuracy, correctness of the herein information and the reader is strongly urged to consult a lawyer in the relevant jurisdiction to ensure accuracy before acting on this information .

The liability issue was already brought up in this thread. The "no FSBO" clause is legally unenforceable. It serves only to intimidate the agent. A private agreement cannot supersede a constitutional right. If a broker wants to exercise this degree of control while claiming an IC relationship with the agent, the broker is potentially asking for a very large financial liability and investigation/audit by the IRS and state labor agencies. In these types of worker status complaints, the IRS will not hesitate to cite various federal case law decisions to hold the employer liable for extensive penalties and back payments, which could amount to six or seven figures (millions) for larger employers.

When the agent is acting as a principal in a transaction, with no third-party representation, the agent's employing broker has no involvement or duty of oversight. This really comes down to an ego issue with the broker, which the OP admitted in his first post.

"When the agent is acting as a principal in a transaction, with no third-party representation, the agent's employing broker has no involvement or duty of oversight. This really comes down to an ego issue with the broker, which the OP admitted in his first post."

That statement is WRONG! But every Broker knows that.
The broker has the legal responsibility to supervise the agents actions, including the selling of a personal residence. There is no constitutional right to circumvent real estate laws and IC agreements or office policies between the agent and employing broker.
Our State Real Estate Commission does not get involved in Office Policy or IC Agreement disputes between agents and brokers.

Erika,
As usual you are incorrect but that is not surprising since you hare not a real estate agent or broker. The no FSBO clause in the Independent Contractor agreement is indeed enforceable so stop with your Trolling. Is there not a forum for those involved in whatever industry you claim to be a manager in.
Erika are you really that dense that you cannot understand how this action effects the brokerages business..It appears that you are beyond dense.

Sorry Ericka, but I am forced to disagree with you.

The "No FSBO" clause is completely and totally enforceable. I am not sure what constitutional challenge you think such a clause brings, but according to the Legal Hotline for the California Association of Realtors, such a clause is entirely enforceable.

If you would like to quote the portion of the constitution that this violates, I would love to hear it.

Let me put this portion of this thread to bed for everyone:

In my considered opinion, as a broker in the state of California, and the opinion of the CAR Legal Hotline Erika is incorrect. However, I STRONGLY advise you to not take my word for it. Those of us that do this for a living have access to lawyers in our states. If you want to get the real info, simply contact them and ask the question. In addition, I STRONGLY advise that you not take Erickas word for it.

Ericka, if that other party that was in this private transaction sues the agent doing the FSBO for non-disclosure, fraud, etc, etc. - that agents broker will also be held responsible for any acts carried out by that agent relating to the transaction. When you are a licensed agent under a broker, all your conduct while engaged in a real estate transaction leads up to the broker.

Now, as the broker, I can try to make the case that they were working outside my authority, etc. etc. But if past cases are any indication, I am still going to get hit for something.

If I had an agent who insisted going FSBO, I would simply return their license to them and file the proper paperwork with the DRE indicating they no longer work under my license.

R

LOL, most of the posters have completely misconstrued my statements.

So, you and the CAR legal hotline are saying that a court can force a licensed agent NOT to sell his/her property, as a principal, without the broker's involvement? Or, the court can force a licensee to list his property with his employing broker? Sorry.

This is simple common sense. Under the US Constitution, all adult citizens have the right to own and transfer real property, WITHOUT the representation of a licensed broker (a voluntary employment contract). A "no FSBO" provision CANNOT be enforced. Termination of the agent's employment is a different issue.

Regarding broker supervision, a broker cannot supervise actions that he/she is not aware of. No liability. If the broker becomes aware of an agent FSBO, then there might be some liability, depending on the broker's actions. However, the broker's actions do NOT require the broker to demand that the agent list the property with him. That is ludicrous.

Erika,
Why is is so hard for you to admit that you have no idea what you are talking about? You like to make it sound like you are intelligent when it comes to Real Estate but it is so obvious that you have no education or experience other than having bought and sold a personal residence.

A broker may not be able to stop an agent from selling FSBO but the broker can terminitate their agency relationship. So it comes down to does the agent want to FSBO and find a new broker or does the agent want to follow what they agreed to when they signed the IC agreement.

First, refrain from using the term "constitution" again. If your going to say that the constitution guarantees this right without restriction, please quote that part of the constitution for us.

Second, if as a condition of your working under my brokers license, I have you sign a document that says you will not get involved in ANY real estate transaction without my direct oversite - then you cannot get involved with any real estate transaction without my oversite. Of course anyone can sell their own home, but as a licensed agent working under my brokers license, you end our agent/broker agreement by violating it. So the net result is NOT that I can stop you from selling your home how you see fit, but that I can protect myself from liability and "fire" you.

What I thought I stated very clearly was that a "No FSBO" clause in the broker/agent agreement is entirely enforceable. As Paul stated quite well, an agent CAN sell their home as a FSBO, but since this would violate the broker/agent agreement the broker can cut loose that agent and in addition, point to that clause as protection from any court action by parties that might sue that agent as a result of anything happening during that FSBO sale. The enforceability does not come into play regarding preventing you from selling your home, but terminating your broker/agent relationship.

Apparently, common sense is less common than we all would like.

Finally, I am going to say this again one last time. This portion of this topic is closed.

The purpose of this forum is to provide guidance for those who visit here and for the open exchange of ideas.

In my opinion, this thread has now done more to confuse this issue than deal with it.

As for the open exchange of ideas, we have no de-volved into "Yes it is" "No it isn't" level of debate which serves no purpose other than to annoy.

So as the moderator of this part of the forum, my final word on teh subject is : Call your lawyer!

Finally, at several stages, it has reasonably been asked for Ericka to offer something... ANYTHING in the way of direct reference for her claims here. I know folks have asked what her specialty is, what business she is in, references to the legal claims she has made. Unless I missed something - ALL OF THESE REQUESTS HAVE BEEN IGNORED.

Since we have reached the point of wasting digital ink, I will be closing this thread unless it takes a more productive turn. My hope is that we can explore other issues surrounding agents selling their own property and how other brokers have handled it.

R

"Under the US Constitution, all adult citizens have the right to own and transfer real property, WITHOUT the representation of a licensed broker (a voluntary employment contract). A "no FSBO" provision CANNOT be enforced. Termination of the agent's employment is a different issue.

We are not talking about US citizens and their rights; we are talking about RE agents who work under specific employment agreements for a RE broker.
Ericka, you claim to know what you are talking about, it's time to throw in the towel and admit that your advice is not by an expert and should be taken with a grain of salt (a disclaimer would help).

Reminder:

legal/statutory duties of licensed agents and brokers and appraisers are not extinguished by private contract provisions. These duties cannot be waived.

"Reminder:

legal/statutory duties of licensed agents and brokers and appraisers are not extinguished by private contract provisions. These duties cannot be waived."

Are you high? You must be on drugs to make a statement that has no relationship to the subject at hand, or be very incompetent.

Right now, yes.

Since this is apparently such a "confusing" thread, this will be my last post.

from Rebelbroker:

"the broker can cut loose that agent and in addition, point to that clause as protection from any court action by parties that might sue that agent as a result of anything happening during that FSBO sale."

Per most IC agreements, the broker or the agent can cut loose from the IC agreement for ANY REASON, or no reason. The broker does NOT need the "no FSBO" provision to terminate the agent's contract. This is a peripheral issue.

Noooooo, the broker (may) still be held liable to third parties that have suffered damages resulting from the agent's and/or broker's actions, and may be disciplined by the State, per the broker's statutory duties. A private contract does not absolve the broker of his duty of supervision, nor make the broker "judgement proof". Most likely, a damaged third party will name the agent AND the broker in the same lawsuit.

Ok, I was damaged as a party to the agent's sale, FSBO or otherwise. Regardless, the broker's actions or lack of action contributed to my damages. The broker eagerly produces the IC agreement with "no FSBO" and/or "agent must list with me" provision, claiming he is not liable. So what? In either scenario the broker may have failed his duties in many different respects. As the damaged party, why would I care about his little agreement with his agent?


the above is not intended to be legal advice. consult an attorney concerning any potential legal dispute.

Pikes,
She may be High. She is some management(or so her profile claims, originally is said eCommerce for occupation) type that thinks she knows everything about real estate.

Wow.... just ... wow. I have to think that this much completely divergent thinking has GOT to be based in some missing communication link... somewhere. But lets not go there.

So now that we are past THAT little bit of logical meandering, can we take this thread down a different path?

What are the different ways folks have seen brokers handle agents selling their own properties?

I have heard everything from a token charge of $150 per transactions to brokers insisting on the same split arrangement they get with any transaction.

Any thoughts?

R

Rebel Broker,

Wow. Thanks for sending us down a different path. That other path scared me! (scenes of "Alice in Wonderland" playing in my head!)

I'd like to add input to your question. Let me start by saying that I am not a Broker, nor, as you can tell, have I been posting here for long. So be gentle with me

Anyway, the Brokerage I work for (yes, work for, I'm a licensed Support Staff member who is a paid employee) charges our agents a flat fee for their own personal transactions or their standard amount of commission, whichever is greater. Now, before anyone yells at me, our "standard" commission program is a 100% Commission, less a 9% Transaction fee. The flat fee amount is $275 - and is "generally" less than the 9%.

And yes, to answer your question ahead of time (I pay attention, can you tell?), our E&O policy covers agents' personal transactions.

And yes, all this is in the IC agreement.

Okay, that's my .02 cents. I'm not sure if it provides any enlightenment, but I can guarantee that I am not high!

thanks,

sunshine shanon

I have worked for brokerages where you get one purchase a year free. Another was a $275 administrative fee and another where the agent paid 1/4% of the sales price.
One company charged more if it was an investment property.

A transaction/admin fee is the only acceptible method at least in my opinion. The fee for selling your personal residence should be at a lower rate than investment properties. If your brokerage has a transaction coordinator thatyou use you should also pay that fee a well as it is not fair that the broker foot the fee for your personal transactions.

This is something that must be addressed when you join the brokerage. It may not seem important if you do not currently have properties or are not planning to sell your home in the near future. It will definately become expensive later on down the road when you suddenly learn your broker is greedy and wants a full commission split.

ericka

Thank goodness that is your last post, and a good thing you use the disclaimer not intended to be legal advice. I passed the California Bar Exam but chose not to practice, but I'm sure I could make a good living just suing people you gave advice to.

As a real estate investor for 52 years and a California Real Estate Broker for 42 years I advise the others on this board not to take any opinions you offer as something to be digested and used.

Man, just came across this thread. You know, this Ericka person is a piece of work. But I had noticed that a while ago from some of her other posts. Really wants to be seen as a know it all...or near know it all. All the while not addressing the fact that a broker can have a policy that says if you sale your primary residence you will give the broker 100% of the commision and if the agent doesnt like it they can hit the road. That is the chief situation at hand without all of the talk about law and Ic and pink elephants. You know she will be reading this thread and trying hard not to reply again. Hello ericka! The broker sets the policy and there are plenty of brokers that dont offer 90% splits to the agent on primary residences.

SailorKev,
How did this end up working out for you and this agent?

Well we got the inhouse listing allright. Its a total PITA. This guy hasnt quite moved, so isnt even paying his MLS stuff yet. So, I get swamped with the work of being the "lister". Every time there is a status change of any type, I have to refax the information to the reciprical MLS. He and his wife seem to want to change something every three days. His pushy wife only gave us a 30 day listing of which we are now on the 2nd 30 day renewal. She let something slip out saying Oh we are doing it this way in case we need to go to a Bigger company with a big advertising budget to get it sold.

Im thinking golly gee I better not blow any money putting this in Chicago Tribune. I non chalantly told his wife, Oh I see your point and perhaps that company might want to hold your license as well. We are busting our butts to get this sold and cant quite predict what these people are thinking.

This person isnt going to last and not only is a deadweight, he actually succeeds in making everyone associated with my company look like it run but idiots.

Get into commercial,you don't have to put up with crap like this.