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FACTS: A broker conducts a listing appointment for an older home in a desirable neighborhood. During the meeting, the broker discusses the price, fees, disclosures, marketing, and other listing considerations.
The broker produces a comparative market analysis (CMA) with an estimated listing price range of $250,000-$262,000. The seller agrees to a $259,000 list price and signs a listing agreement and the required disclosures. Prior to publicly posting the listing of the property, the broker contacts the seller-client with a potential investor who would be interested in the property.
The investor is shown the property and submits a cash offer of $225,000. The seller-client is not interested in the low offer. The broker attempts to pressure the seller-client into accepting the offer since the offeror is not asking for any inspections and will close quickly.
The seller-client accepts the offer and completes the transaction. A few months later, the property is back on the market for $320,000. Upon further research, the seller learns that the investor who bought the property is the father-in-law of the listing broker; the CMA was purposefully inaccurate; and the broker intended to profit from the subsequent sale.
ISSUE: Did the broker comply with the License Law and Commission rules?
ANALYSIS: No. Brokers owe fiduciary duties to their clients. These fiduciary duties prohibit brokers from self-dealing. Commission Rule 58A .0104(p) specifically requires listing brokers who want to purchase their client’s property to disclose in writing their conflict of interest and to advise the seller-client that they may want to seek independent counsel. Before the listing broker contracts to purchase the property, they must disclose to the seller-client in writing that the seller has a right to terminate the listing. If the seller does not terminate the listing, the listing broker must still transfer the listing agreement to another broker affiliated with the firm.
The North Carolina Real Estate Commission has long made clear the implications regarding brokers and self-dealing. When a principal engages a real estate broker as their agent, they are entitled to loyalty and obedience. This means that the broker must prioritize the interests of the principal above their own personal, business, or familial concerns. The principal’s interests take precedence, and the broker must refrain from engaging in any actions that may compromise or dilute this loyalty. In this case, the broker misrepresented the probable selling price and pressured the seller-client into accepting an under-value offer made by a family member.
Furthermore, North Carolina General Statute 93A-6(a)(4), (8) and (10) gives the Commission authority to discipline brokers who act for more than one party without the knowledge of all parties for whom they act (here, the seller-client and the family member), who are unworthy or incompetent to act as a real estate broker in a manner as to endanger the interest of the public, and for conduct which constitutes improper, fraudulent, or dishonest dealing.
The Commission determines whether a broker acted competently by analyzing documents, interviewing witnesses, and reviewing written correspondence. The Commission uses the Reasonableness Standard to evaluate a broker’s expected competency. A broker must exercise the degree of skill, care, and diligence that a reasonably prudent real estate broker would exercise under similar circumstances.
N.C.G.S. § 93A-6(a)(15) states that the Commission has power to suspend or revoke at any time a license issued under the provisions of this Chapter, or to reprimand or censure any licensee, if following a hearing, the Commission adjudges the licensee to be guilty of violating any rule adopted by the Commission.
As a result of this fraudulent self-dealing and the potential violations of License Law and Commission rules, the broker may be subject to disciplinary action by the Commission.
RESOURCES:
N.C.G.S. § 93A-6(a)(8), 93A-6(a)(10), and 93A-6(a)(15)
License Law and Commission Rules: Rule 58A .0104
Articles: NCREC Bulletins – Self-Dealing
2021-2022 General Update Course – Broker Fiduciary Duties
Please help Commission staff respond more quickly and accurately to your emails, voice messages, and letters by fully identifying yourself in the communication. Providing your broker license number and your full legal name vs. your nickname allows us to locate your records that contain the answers to most of your questions. If your parents gifted you with a name that contains a suffix, such as Jr., III, or the Great, be sure to include the suffix. We do have some brokers that share very similar names. Help us … so we can help you more efficiently!
Do you know the CE deadline is June 10, 2024? If so, did you take the appropriate CE course?
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Commission-approved instructors are required to complete six hours of real estate instructor educational program each license year prior to the renewal of their instructor approval. The Guidelines for Instructional Educational Requirement (Form REC 3.78) explain the rule requirements, list some of the education options, and provide links to those resources. Renewal of instructor approval should be submitted as soon as possible before June 30th to ensure timely processing.
If you have any questions, please review the Commission’s website.
Did you know that you can check your continuing education records on www.ncrec.gov prior to calling the North Carolina Real Estate Commission?
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A material fact is ANY fact that could affect a reasonable person’s decision to buy, sell, or lease real property. All brokers have a duty to discover and disclose material facts, as established by North Carolina General Statute section 93A-6(a)(1) and by Commission Rule 58A .0114(c). Failure to disclose material facts continues to be the most common complaint from consumers.
How do I disclose material facts? The legal requirements do not specify a method for disclosing. However, a prudent broker would disclose in writing and retain such written disclosure with other transaction documents for three years.
Many listing agents disclose material facts within their listings in a Multiple Listing Service (MLS). However, this can be problematic when the material facts are contained in an area exclusively for brokers called “agent only.” An unrepresented buyer, or a buyer represented by a broker who is not a member of the listing agent’s MLS, cannot access these material fact disclosures. In this situation, the listing agent has not disclosed material facts to that buyer. The same is true for tenants. One best practice would be to disclose material facts via email, as that would ensure receipt and create an online paper trail.
When do I disclose material facts? A broker must disclose material facts in a timely manner, i.e., in enough time for the disclosure to be meaningful in connection with the consumer’s decision-making. If a material fact is known prior to contract formation, then the broker must disclose the material fact prior to contract formation. If a material fact is discovered after contract formation, then the broker must disclose the material fact immediately. The broker cannot decide to wait for a party to ask about the material fact or refrain from disclosing the material fact to any party because they believe that the material fact was common knowledge.
To whom do I disclose material facts? The disclosure of material facts is mandatory and must be volunteered freely to all parties in a transaction without regard to whom the broker represents. This includes buyers, sellers, landlords, and tenants.
This article was printed in the February, March, April, and May eBulletin The Important Note below is new.
IMPORTANT NOTE FOR OUT OF STATE BROKERS: As discussed in this article, you are no longer exempt from taking North Carolina CE. To renew your North Carolina license on active status, you must take the appropriate NC Update Course and a North Carolina elective course. These courses are available online as well as in person.
Pursuant to Rule 58A. 1702, North Carolina brokers must complete eight credit hours of real estate continuing education each license year. The eight hours consist of:
All brokers without BIC-Eligible status and provisional brokers must attend the General Update Course (GENUP) and all Brokers-in Charge and BIC Eligible Brokers must attend the Broker-in-Charge Update Course (BICUP). A broker is required to complete eight credit hours of continuing education by June 10th at 11:59 PM EST to remain eligible for active license status. This requirement begins upon the second renewal following initial licensure and upon each subsequent annual renewal.
In the past, Rule 58A .1708 permitted brokers to request equivalent credit for a course that was not approved by the North Carolina Real Estate Commission by submitting a $50 fee, course outline and completion certificate. On July 1, 2023, the availability of equivalent credit was removed for all brokers, except an instructor who either authored or taught an approved course. Therefore, there is no equivalent credit offered for a course that is not currently approved by NCREC. A broker who previously submitted courses for equivalent continuing education credit should take the required Update course and an approved North Carolina elective prior to the June 10th deadline.
Rule 58A .1708 was changed to ensure that all North Carolina brokers are required to take North Carolina approved courses. The change also eliminates the need for brokers to pay additional fees, especially when courses were not approved for equivalent credit.
Rule 58A .1711 previously exempted brokers who were licensed in another state from the continuing education requirements in North Carolina. On July 1, 2023, the Commission repealed that Rule. All brokers licensed in North Carolina must meet the same eight hour continuing education requirement. The prevalence of online courses means that this is no longer an unreasonable burden for licensees living outside North Carolina.
These rule changes were intended to make things simpler for brokers and to assure that all brokers in North Carolina obtain the same education regarding North Carolina rules, statutes, and information to ensure the competence of brokers practicing in the state. If you have questions about the status of your continuing education, you can login and check your continuing education record on the Commission’s website.
DARRYL COOK (DELRAY BEACH, FL) – Following a hearing, the Commission revoked the broker license of Cook effective April 30, 2024. The Commission found that Cook acted as Broker-in-Charge and Qualifying Broker of the licensed firm MV Realty, which solicited homeowners to sign Homeowner Benefit Agreements binding the owners and their heirs to a forty-year term to list their property with MV and also barred the transfer or refinancing of their property without MV Realty’s authorization. The Commission found that Cook, as Broker-in-Charge, failed to supervise affiliated brokers such that the brokers, and Cook individually as a broker, failed to provide and review the Working with Agency Disclosure with prospective sellers; made false promises, misrepresentations, and omissions to prospective sellers regarding Homeowner Benefit Agreements and listing agreements; failed to timely deliver documents and agreements to consumers; engaged in improper, fraudulent, and dishonest dealing in the offering of Homeowner Benefit Agreements; and acted in an incompetent or unworthy manner when acting as listing agent in real estate transactions.
DORIS SIERRA SANCHEZ (HUNTERSVILLE) – By Consent, the Commission suspended the broker license of Sanchez for a period of 12 months, effective March 15, 2024. The Commission then stayed the suspension following a 3-month active period upon certain conditions. The Commission found that Sanchez was engaged in real estate brokerage services and failed to present the WWREA Disclosure prior to first substantial contact or enter into a buyer agency agreement prior to the time of offer. Additionally, Sanchez backdated multiple documents to appear in compliance and gave lockbox codes to unlicensed family members to conduct showings on her behalf.
JOHN ANTHONY MARINACCIO (RALEIGH) – By Consent, the Commission suspended the broker license of Marinaccio for a period of 24 months, effective December 15, 2023. The Commission then stayed the suspension following a 4-month active period upon certain conditions. The Commission found that Marinaccio, acting as a listing agent, advertised a lot for sale and did not disclose that the seller did not yet own the property. Marinaccio had received a survey indicating that two easements made the lot unbuildable but advertised the property as “perfect for your dream home.” After learning of the easements and title issues, the buyer terminated the contract and lost their $3,000 due diligence fee. In a separate transaction, Marinaccio listed a property serviced by a long private driveway, which separated it from the nearest road. Marinaccio falsely indicated on the Working with Real Estate Agents Disclosure to the seller that the firm only practiced Dual Agency, falsely advertised that the subject property had road frontage and failed to disclose that the property did not have a written easement agreement for use of the private driveway. After discovering the lack of an easement for a driveway, the buyer terminated the contract and lost their $1,000 due diligence fee in addition to $2,800 for the survey and soil test. The Commission noted that Marinaccio contributed payments to repay the buyers in full for the lost funds.
ZACHARY KYLE BUTTS (MOORESVILLE) – By Consent, the Commission suspended the broker license of Butts for a period of 2 years, however, the suspension was fully stayed effective April 1, 2024. The Commission found that Butts timely reported July 27, 2023, convictions for Misdemeanor Drunk & Disruptive and Misdemeanor Domestic Violence Protective Order Violation. Following a hearing, Butts was found to have violated a Domestic Violence Protective Order by entering a bar where the person who obtained the Order was present and refusing to leave until the police removed him. Pursuant to the conviction, Butts was sentenced to 12 months unsupervised probation.
JENNIFER C WELDON (DENVER) – By Consent, the Commission suspended the broker license of Weldon for a period of 12 months, effective April 1, 2024. The Commission then stayed the suspension in its entirety upon certain conditions. The Commission found that Weldon, acting as a broker-in-charge of Carolina Homes Connection LLC, failed to obtain and review a listing agreement and related documents for two lots advertised for sale by an affiliated broker. The affiliated broker advertised the lots as proposed new construction builds without obtaining authorization from the seller.
CAROLINA HOMES CONNECTION LLC (DENVER) – By Consent, the Commission suspended the firm license for a period of 12 months, effective April 1, 2024. The Commission then stayed the suspension in its entirety upon certain conditions. The Commission found that the firm failed to obtain and review a listing agreement and related documents for the advertised lots for sale by an affiliated broker. The affiliated broker advertised two lots for sale as proposed new construction builds without obtaining authorization from the seller.
JAYNE H LAND (SALISBURY) – By Consent, the Commission suspended the broker license of Land for a period of 6 months, effective April 1, 2024. The Commission then stayed the suspension in its entirety upon certain conditions. The Commission found that Land, acting as the listing agent, failed to disclose prior to the time of offer, the pump flow test results for the well that served the subject property..
AUDREY H WALLACE (CHARLOTTE) – By Consent, the Commission reprimanded Wallace, effective April 1, 2024. The Commission found that Wallace failed to timely provide an accounting to a tenant for the disposition of the tenant security deposit. Wallace, acting as the broker-in-charge of Superior Choice Properties Inc., maintained two bank accounts that contained trust funds related to property management. An audit of the trust accounts revealed a number of deficiencies, including the failure to designate the accounts as either “trust” or “escrow,” failure to maintain records to create a proper audit trail, and failing to perform complaint three-way reconciliations.
SUPERIOR CHOICE PROPERTIES INC (CHARLOTTE) – By Consent, the Commission reprimanded the firm effective April 1, 2024. The Commission found that the firm failed to timely provide an accounting to a tenant for the disposition of the tenant security deposit. The firm maintained two bank accounts that contained trust funds related to property management. An audit of the trust accounts revealed a number of deficiencies, including the failure to designate the accounts as either “trust” or “escrow,” failure to maintain records to create a proper audit trail, and failing to perform complaint three-way reconciliations.
JEFFREY CHARLES LYNCH (HUNTERSVILLE) – By Consent, the Commission suspended the broker license of Lynch for a period of 6 months, effective April 1, 2024. The Commission then stayed the suspension in its entirety upon certain conditions. The Commission found that Lynch represented the buyer of the subject property, advertised as a “private lot home.” Lynch failed to verify, prior to offer, the existence of any proposed development of the 10+ acres of vacant land adjacent to the subject property. A preliminary plan for a 124-single family home subdivision had been proposed and noticed by the locality. Buyer closed on the subject property and shortly thereafter, the adjacent land was sold, development of the subdivision received approval, and construction began.
HOLLI D SANDBERG (SILER CITY) – By Consent, the Commission reprimanded Sandberg, effective April 1, 2024. The Commission found that Sandberg acted as a buyer’s agent for the buyer of a property which was advertised as having both septic and a renovation with city sewer connection. Sandberg was aware her buyer-clients were considering converting the entire property to city sewer in the future, but failed to advise the buyer to obtain information about the availability and cost to do so. Following the purchase, the buyers discovered the property was entirely on septic.
WILLIAM S BOURKE (ASHEVILLE) – By Consent, the Commission suspended the broker license of Bourke for a period of 24 months, effective April 15, 2024. The Commission then stayed the suspension following a 45-day active period upon certain conditions. The Commission found that Bourke was qualifying broker of a licensed firm which failed to timely renew its license. After the firm renewed its license, Bourke failed to re-designate a Broker-in-Charge. Thereafter, Bourke sold the firm to an unlicensed employee without informing any property owners or tenants of the change in ownership. Bourke failed to retain firm records after the sale, and could not provide trust account records for inspection when requested by Commission staff.
JASON JAIRUS MCCULLUM (DURHAM) – The Commission accepted the voluntary surrender of the real estate license of McCullum, effective April 25, 2024. The Commission dismissed without prejudice allegations that McCullum violated provisions of the Real Estate License Law and Commission Rules. McCullum neither admitted nor denied misconduct.
STEPHANIE KATHLEEN MCANUFF (MINT HILL) – The Commission accepted the voluntary surrender of the real estate license of McAnuff, effective April 25, 2024. The Commission dismissed without prejudice allegations that McAnuff violated provisions of the Real Estate License Law and Commission Rules. McAnuff neither admitted nor denied misconduct.
IDI PROPERTIES INC (MINT HILL) – The Commission accepted the voluntary surrender of the real estate firm license, effective April 25, 2024. The Commission dismissed without prejudice allegations that the firm violated provisions of the Real Estate License Law and Commission Rules. The firm neither admitted nor denied misconduct.
APRIL DANIELLE WELLS (WINSTON SALEM) – The Commission accepted the voluntary surrender of the real estate license of Wells, effective April 25, 2024. The Commission dismissed without prejudice allegations that Wells violated provisions of the Real Estate License Law and Commission Rules. Wells neither admitted nor denied misconduct.
SORNG BUNTOUM (KNIGHTDALE) – The Commission accepted the voluntary surrender of the real estate license of Buntoum, effective April 25, 2024. The Commission dismissed without prejudice allegations that Buntoum violated provisions of the Real Estate License Law and Commission Rules. Buntoum neither admitted nor denied misconduct.
KRYSTAL MARIE PARMENTER (NEW BERN) – The Commission accepted the permanent voluntary surrender of the real estate license of Parmenter, effective April 25, 2024. The Commission dismissed without prejudice allegations that Parmenter violated provisions of the Real Estate License Law and Commission Rules. Parmenter neither admitted nor denied misconduct.
NEW BERN PROPERTY SERVICES LLC (NEW BERN) – The Commission accepted the permanent voluntary surrender of the real estate firm license, effective April 25, 2024. The Commission dismissed without prejudice allegations that the firm violated provisions of the Real Estate License Law and Commission Rules. The firm neither admitted nor denied misconduct.
KAREN MONK STEWART (SANFORD) – The Commission accepted the permanent voluntary surrender of the real estate license of Stewart, effective April 25, 2024. The Commission dismissed without prejudice allegations that Stewart violated provisions of the Real Estate License Law and Commission Rules. Stewart neither admitted nor denied misconduct.
CHARLES CORNWELL (WARRENTON, VA) – The Commission accepted the permanent voluntary surrender of the real estate license of Cornwell, effective April 25, 2024. The Commission dismissed without prejudice allegations that Cornwell violated provisions of the Real Estate License Law and Commission Rules. Cornwell neither admitted nor denied misconduct.
SHIRLEY FEUERSTEIN (CARY) – The Commission accepted the permanent voluntary surrender of the real estate license of Feuerstein, effective April 25, 2024. The Commission dismissed without prejudice allegations that Feuerstein violated provisions of the Real Estate License Law and Commission Rules. Feuerstein neither admitted nor denied misconduct.
Just as qualifying brokers are required to renew their firm licenses, education directors are required to renew their education provider’s certification. However, the certification is just the first part of the renewal process as education providers potentially have several locations and course approvals that must also be renewed.
Starting on May 15th, education directors will first need to complete the Education Director Course as part of the annual education requirement to renew their provider’s certification. Next, they will want to review their Policies & Procedures Disclosure (PPD) to ensure the information contained in it is up-to-date and still accurately reflects the types of education they offer. With these two steps completed, the education director can now login to the EP Dashboard to renew their provider’s certification and attach their updated PPD to the renewal form.
After the certification has been renewed, the next step is to renew any additional branch locations. Then the education director will need to go through and renew each education type their provider offers, whether it is Prelicensing, Postlicensing, and/or Continuing Education. In addition to renewing the type of education, the education director will need to renew each delivery method of each course the provider is approved to offer within that education type, if the education director still wants to offer it.
The biggest difference for the education provider renewal process from other renewals is the lack of a reinstatement period. Failing to renew an education provider’s certification will result in the expiration of that certification, approved locations, and all course approvals. Since there is no reinstatement period, an education director will be required to start over with a new education provider application and then submit course applications for all course approvals to begin offering courses again.
If you have any questions regarding the requirements to renew your education provider’s certification, please visit www.ncrec.gov.