In every firm, there are rules and regulations. These are set to have order in the firm and the community. Brokers also have these regulations and conduct of business.
LAW FOR BROKERS
License. In order for a broker to engage in business, he or she is generally required to acquire a license and pay a fee. Brokers who conduct business without a license can be fined by state licensing authorities. In some states it is illegal for any person other than a licensed broker to be paid for services concerning real estate transactions. Brokers also have license tax. In the context of law, any individual who regularly works as a middleperson or negotiates business transaction for the benefits of others is considered a broker. It has been held by a federal court that a statute requiring brokers to obtain a license was only applicable to those people regularly employed as brokers. An individual only casually involved in brokerage through the arrangement of only a few sales would not be considered to be engaged in the business of brokerage.
Revocation of License The state’s concerns regarding brokers extend beyond initial licensing to the establishment of conditions for the maintenance of a license. The state may provide for the revocation or suspension of brokers’ licenses for reasonable grounds.
The power to revoke a license may be vested in a specially designated commission that exists primarily to hear complaints about the fraudulent practices of brokers. Such proceedings are ordinarily informal, and technical court rules generally are not observed.
During a hearing, the commission is presented with evidence relating to the broker’s conduct and must consider whether such conduct warrants denial of the privilege to engage freely in business.
Grounds for revocation of a license are generally based upon Fraud, dishonesty, incompetence, or bad faith in dealing with the public. A real estate broker’s license may be revoked or suspended because of Misrepresentation used to affect a purchase or sale. Generally, the conduct of a broker in negotiating a real estate transaction on behalf of his or her principal is subject to strict fraud and deceit standards, equal to those imposed on his or her principal. It has been held by some courts that the failure of a broker to disclose material facts within his or her knowledge will create liability. Within the meaning of fraud is the pretense of knowledge on the part of the broker while executing a real estate transaction where no knowledge actually exists—for example, while selling a house a broker states that there are no concealed defects in the house, although he or she does not actually know if such defects exist.
A real estate broker’s license may be suspended or revoked if duties are performed unlawfully. In addition, a broker’s license can be revoked or suspended if a broker is guilty of racial discrimination in the selling and leasing of property.
Stockbrokers may be liable for various unethical activities, such as churning, which is the unnecessary trading of stocks to gain additional commissions. A Consumer Protection organization, the Securities Investor Protection Corporation (SIPC), has been established by Congress to aid customers of securities concerns that go out of business.
Bonds State regulations usually require that brokers, especially those engaged in the real estate business, deliver a bond to insure faithful performance of their duties. The liability of the surety guaranteeing such a bond extends only to transactions that arise during the normal course of the broker’s business and that are intended to be included in the bond.
Commissions A broker is ordinarily compensated for services by the payment of a commission, based upon a portion of the value of the property in a particular transaction.
Generally, a commission is earned when negotiations between a buyer and seller are completed, and an agreement is reached. It is customary for a broker to deduct and reserve the amount of commission from funds obtained by him or her for a client. The ordinary basis for the calculation of a percentage commission is the total sale price of whatever is sold.
In order for a broker to be entitled to a commission, a sale must be completed for which the broker has been employed.
The broker’s right to a commission is not dependent upon the finalization of the transaction unless otherwise agreed upon by the broker and by his or her client.
The compensation of a broker is based upon procurement of a client who is willing and able to purchase. The specific terms of the transaction must be satisfactory to the broker’s client.
Of paramount importance is the prospective buyer’s ability to provide the required funds at the suitable time. A broker who has properly performed his or her duties should not be denied a commission due to a failure by the parties to consummate the deal.
In the absence of any agreement to be employed by a client, a broker is not to be compensated for voluntary services. Similarly, compensation is not due a broker when a sale is made by an owner after the broker-client relationship has been terminated. A common type of termination is the expiration of a real estate listing. This rule against the payment of a commission is absolute—regardless of whether or not the sale is made to an individual whom the broker initially produced—provided the broker was given ample opportunity to complete the transaction and failed to do so. Once a broker has earned his or her commission, a client may not terminate the relationship and complete the transaction himself or herself in order to avoid paying the broker.
Any fraudulent misrepresentations or evidence of bad faith on the part of the broker will defeat his or her right to a commission. Mere Negligence in the execution of duties, in the absence of bad faith, does not automatically defeat a broker’s right to compensation.
PRACTICES FOR BROKERS
Brokers want to earn commissions and sometimes they are under intense pressure. Sometimes what brings in most money for them is not always what is best for investors or what they really want. There is this temptation to sell excessively risky products because they are more lucrative than the low-risk alternatives. According to Investopedia, here are some “simple rules for brokers”
Eight Simple Rules for Brokers
When in Doubt, Spell It Out
If it even occurs to you that an investor may need or want to know something, tell them. Never succumb to the urge to keep quiet, even when you know this may cost you the deal.
Do unto Others
Put yourself in the position of the investor. If you would prefer not to be handled in a certain way, don’t do it to someone else. Above all, avoid self-deception. The best test is to ask yourself whether you would want your mother, brother, best friend or indeed yourself to have these investments.
Avoid One-Size-Fits-All Approaches
Everyone has different needs, preferences and circumstances. They therefore need a portfolio that truly caters to them. The correspondence you send out should also be tailored to each client. Nothing is more useless to a client than a standardized quarterly letter containing general information that he or she could get from the newspaper or any website. Most clients will switch off and not even read them. What customers need is customized information about their own portfolio, how its doing and why, what changes you plan, etc.
Ask the Client -Don’t Expect Them to Ask You!
A client won’t ask for clarification if he or she doesn’t realize it’s needed in the first place. Make absolutely sure that the client knows what he or she is getting. They do not need to know every intricate detail, but they certainly need to know, at minimum, how risky the product is in relation to the probable returns. There should be no surprises in store for the unwary and trusting investor.
Be Specific About the State of the Market
You should discuss the market with your client in general and with respect to the specific asset classes. This does not mean attempting to time the market, but the investor ought to know whether the market has been booming for years and is regarded as possibly overpriced, or whether the converse prevails. In the same vein, if people are saying that commercial property may well have peaked, tell that to the client. There is nothing wrong with stating that “opinions are divided and it could go either way”. But there is something wrong with keeping quiet about potential disadvantages and risks in order to push through the sale.
Be Open About Monitoring and Control
A client should know how often you will monitor the investments and what this really means. For instance, will you call the client if there is news in the media that things may go be going sour for a particular asset? This also applies to positive new opportunities that can pop up. If all you plan to do is take a look at the asset allocation once a year, that may be OK, but the client needs to know that he or she cannot expect more from you.
Show the Client Visually How Things Work
The classic multi-color pie chart with asset class combinations for high, low and medium risk is a great way to demonstrate the very essence of the investment process. Likewise, “pyramids of risk” which show how one moves from a low-risk basis of cash, upward through bonds to equity funds and so on, should always be the starting point of the advisory process.
Explain Brochures
Simply handing your client a pamphlet is not enough. There is a good chance they will not be understood and they may not even get read. Go through the main points with clients, so you can be sure they really understand the main elements of the investment and what the text means. The man in the street does not know the meaning of such phrases as “optimizing portfolio risk,” “sector allocation,” “overweighting mid caps” and dozens of others. Similarly, ordinary investors are generally unaware of the meaning and implications of long-term versus short-term investments, or the difference between investment styles like value and growth. There is an optimal (and minimum!) level of communication and understanding that is essential for good brokering practice.
By: Camille Sy & Christine Dolina