Real Estate Office Policies – Questions for Your Broker

By Monica S. Staaf, RIAR General Counsel

Does your office have a written office policy?  When was the last time you looked at it?

Rhode Island law and/or the REALTOR® Code of Ethics require principal brokers to adopt office policies to address topics, such as how commissions are paid after a salesperson changes office, confidentiality of client records, records retention, and others.   Also, office policies and procedures and an independent contractor agreement can help your office run more smoothly and reduce conflicts.

Office Policy Checklist:

There are many issues to consider when creating or updating office policies.  Included below is a checklist of topics in alphabetical order to help you start the conversation.   This list is not meant to be all inclusive because every office is different.  Policies that are tagged as “mandatory”

are required by state law or the REALTOR® Code of Ethics.

Advertising and Marketing:

  • Who is responsible for advertising costs, including signs, business cards, display ads, social media, etc.?
  • Licensees cannot accept payment from title attorneys, mortgage brokers, lenders, and others.
  • Must advertising be reviewed before it is submitted?
  • Should advertising include the fair housing logo, the name of a franchise, or other specific information?
  • All advertising, including social media, must include the name of the brokerage and that the brokerage name must be more prominent than the name of the licensee. Mandatory
  • Business cards of salespeople or associate brokers must include Salesperson or an Associate Broker. Mandatory
  • Licensees cannot advertise properties that are exclusively listed with other companies without permission.
  • Include a reminder that farming texts and emails must include opt out provisions.

Buyer/Tenant Representation:

  • Does your office use exclusive buyer representation contracts?
  • Who has the authority to sign or withdraw a buyer representation contract?

Commissions and Compensation:

  • How and when are commissions paid?
  • Are there different commission amounts or splits for different types of transactions or different levels of production?
  • Are there incentives?
  • Who pays for referral fees?
  • Does your office require you to complete a documents checklist before he or she is paid?
  • Can teams in your office adopt their different methods of compensation?

(Rhode Island law requires a principal broker to pay a commission directly to an affiliated licensee or to his or her wholly owned corporation or limited liability office – not to a team.)

Cooperation and Compensation:  Mandatory

  • Does your office cooperate with all real estate licensees?
  • How does your office set compensation for cooperating brokers?
  • Does your office offer variable rate commissions?
  • Does your office base compensation to cooperating brokers on gross or net sales?
  • Who has the authority to reduce or change a commission?
  • Does your office remind you to comply with antitrust laws by not discussing your office policies about cooperation and compensation with other offices unless they are directly involved in a transaction.

Confidentiality:   Mandatory

  • Who has access to client and customer files?
  • How and where are these records stored?

Conflict of Interest:

  • How does your office handle a licensee who is acting on behalf of himself or herself, a family member, or business in which the licensee has an interest or selling his or her?

Coverage:

  • Who is responsible for arranging for coverage if you are unavailable due to travel, illness, etc.?

Cybersecurity:

  • How does your office handle suspicious emails or texts?
  • Does your office require you to use anti-virus software on your own devices before logging into the company site?
  • Do you have a procedure to protect customers and clients who are wiring funds from fraud?

Deposits:  

  • Does your office remind you that all deposits must be made payable to the broker and be “promptly” delivered to the broker?
  • Licensees cannot accept deposits that are made payable to a salesperson or associate broker.

Disputes:

  • How does your office handle internal disputes over commissions, leads, coverage, harassment, and other issues?
  • How does your office handle disputes with other offices, customers, and clients?

Dual Facilitation and Relationships:    

  • What options does your office provide: designated client representation, transaction facilitation, dual facilitation?
  • Who must approve dual facilitation?

Dues and Expenses:

  • Who pays for REALTOR® dues, MLS fees, late fees, and fines?
  • Do you charge for advertising, leads, desk fees or administrative fees?

Errors and Omissions Insurance: 

  • Who provides and pays for errors and omission insurance for your licensees?

Fair Housing:

  • Include a reminder that your office complies with fair housing and anti-discrimination laws.

Independent Contractor Status:

  • Remind licensees that they are working as independent contractors and are responsible for their own taxes.
  • A broker can recommend – but not require – that salespeople and associate brokers who are working as independent contractors instead of employees, attend office meetings or specific educational programs, cover floor time, etc.

Leads:

  • Who pays for leads?
  • How are leads distributed?

Licensing:

  • Require licensees to document that they have obtained or renewed an active, valid license in all states in which they are doing business.

Listings:

  • Who is authorized to sign or withdraw listing agreements on behalf of your office?
  • Do you have recommended listing procedures?
  • What types of listings do you allow? Entry-only, limited service, open, exclusive right of brokerage, exclusive right to sell, rentals, sales, commercial or residential?

Meetings/Floor Time/Phone Coverage:

  • How does you handle scheduling? Remember that you cannot require independent contractors to attend meetings, handle walk-ins or phones.

Office Resources:

  • Does your office provide you with access to an office/meeting space; a desk, office email address, office phone, etc.?

Open Houses:

  • Do you have any procedures for open houses?

Personal Assistants:

  • Can licensees or teams hire their own personal assistants?
  • Are they employees or independent contractors?
  • Does your office allow unlicensed and/or licensed personal assistants?
  • Who supervises and pays them?

Photos and Videos:

  • Who is responsible for arranging and paying for photos, video tours, drones, etc.?
  • Who owns the copyright or licensing rights?
  • Remind your licensees not to use photos or videos taken by a third party, including other REALTORS®, without written consent.

Records Retention:

  • What records must a licensee provide for your master file?
  • Where will records be stored?

Rentals and Property Management:

  • Does your office offer these services?
  • What type of screening procedures, applications, and forms does your office use?
  • Who is responsible for keys, security deposits, tenant complaints?

RESPA:

  • Does your office remind you not to accept money, gifts, free advertising, free leads, and other incentives from lenders, mortgage brokers, title attorneys, home inspectors, and other settlement service providers unless they check to make sure that they are in compliance with RESPA.

Safety/Screening:

  • Does your office recommend how to screen potential clients and customers?
  • Does your office have safety procedures in place for the office, showings, and open houses?

Social Media:

  • Does your office have any policies about your use social media to promote in-house and outside transactions?

Teams:

  • Does your office allow teams in your office?

Termination Policy  Mandatory

  • Rhode Island law requires each office to have a written policy that states how commissions will be calculated after a licensee changes office.
  • Does your office allow you to take listings, leads, or clients that have signed an exclusive buyer representation contract with them if you were to leave?
  • What documents and items belong to you or your office if you change offices?
  • Does your office have a non-compete clause that prevents you from transferring to another office near your current office?  Does it prevent you from handling transactions in specific towns and cities?

Next Steps:

Encourage your broker to adopt or update office policies.  It is a good idea to review your policies once per year to make sure that they’re still current.

 

Resources:

The National Association of REALTORS® provides a range of free resources to help real estate brokers to create or update office policies.  As you create your policies, it’s a good idea to have an attorney review your policies to make sure that they comply with federal and state laws.

Field Guide to Real Estate Office Policy Manuals | nar.realtor  The articles and books in this field guide provide you with the necessary tools and tips to create a policy manual for your real estate office, covering subjects ranging from policies and procedures to what to include in a policy manual to cell phone usage and more.

Sample Policy Manual/Independent Contractor Agreement, (New Hampshire Association of REALTORS®, 2011). Created for New Hampshire members. Downloads as MS Word documents.

A Broker’s Guide to Creating a Policy and Procedure Manual, (ARELLO, 2012). [links to PDF document] Prepared by real estate regulators to assist a broker who is considering owning and/or operating a real estate brokerage, as this endeavor comes with much responsibility and liability.

Use of Social Media in the Real Estate Business, (National Association of REALTORS®). From NAR’s Legal Affairs division, this members-only document provides brokers with a template that may be used when developing a social media policy for the broker’s own firm.

Questions?  Contact Monica Staaf, General Counsel, RIAR/State-Wide MLS at 401-432-6945 or email monica@riliving.com.