Bulletin Search
Tech Corner: Spam Text Messages
Watch this video to learn about how to identify spam text messages. Video link: https://youtu.be/gRoVFN-AT0k
Commission Presentations
Brian Heath, Consumer Protection Officer, spoke at Property Management Committee of Durham Regional Association REALTORS® on October 1.
Bruce Rinne, Information Officer, spoke at the Brunswick County Association of REALTORS® on October 10.
Brian Heath, Consumer Protection Officer, spoke at exp Realty LLC on October 17.
Miriam Baer, Executive Director, and Janet Thoren, Director of Regulatory Affairs, spoke at NC REALTORS® Annual Meeting, on October 20th.
Anthony Lindsey, Commission Chair, Bill Aceto, Commission Vice-Chair, Miriam Baer, Executive Director, and Janet Thoren, Director of Regulatory Affairs, spoke at NC REALTORS® Annual Meeting, on October 21st.
Miriam Baer, Executive Director, spoke at Gaston Association of REALTORS® on October 24th.
November 2024 Presentations
*These presentations are subject to change due to the availability of Commission members and/or staff.*
Sarah Dixon, Associate Legal Counsel II, will speak at OWN Real Estate on November 7th.
Bruce Rinne, Information Officer, will speak at Allen Tate REALTORS® on November 8th.
Diversity, Equity, and Inclusion Article
With the holiday season quickly approaching, and as we begin to celebrate a time of togetherness and tradition, we encourage you to consider the diversity of the world we live and work in. It is important to remember that everyone may not celebrate the same traditions, there is a wide range of ways people celebrate the holiday season if they celebrate them at all. Fostering an environment of inclusivity and belonging for all helps avoid giving the impression that one or some holidays take precedence over others. Creating awareness and encouraging others to learn more about underrepresented traditions and other cultural celebrations is an excellent way to acknowledge and honor cultures or traditions many may not be familiar with.
Below you will find a list of upcoming observances and a resource to help keep track of the various holidays and observances with links to learn more about how each is celebrated and the significance or importance of the celebration.
Disciplinary Actions
A AND F VENTURES INC (ASHEVILLE) – By Consent, the Commission suspended the firm license of A AND F Ventures for a period of 6-months, effective September 30, 2024. The Commission then stayed the suspension in its entirety upon certain conditions. The Commission found that the Firm represented the seller in the transaction and negligently misrepresented that the property was serviced by city water and sewer, when in fact it had a septic system.
AFFINITY RENTALS LLC (JACKSONVILLE) – The Commission accepted the voluntary surrender of the real estate firm license of Affinity Rentals LLC, effective September 18, 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.
ANCHOR REALTY LLC (FAIRFIELD) – The Commission accepted the voluntary surrender of the real estate firm license of Anchor Realty LLC, effective September 30, 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.
SUSAN H AYERS (ASHEVILLE) – By Consent, the Commission suspended the broker license of Ayers for a period of 6-months, effective September 30, 2024. The Commission then stayed the suspension in its entirety upon certain conditions. The Commission found that Ayers represented the seller in a transaction and negligently misrepresented that the property was serviced by city water and sewer, when in fact it had a septic system.
ROY H HARVEL (PINEHURST) – By Consent, the Commission suspended the broker license of Harvel for a period of 9-months, effective September 16, 2024. The Commission then stayed the suspension in its entirety upon certain conditions. The Commission found that in 2022, a broker affiliated with Harvel acted as listing agent for an investor-client selling a residential property they had renovated. The seller disclosed to the listing agent that a chimney fire had caused some damage, and that he had documents evidencing that an engineer had recommended a repair method, and that the damage had been repaired. The listing agent did not receive the seller’s documents and failed to disclose the fire to potential buyers. A buyer purchased the property and discovered after closing that there had been a fire. The Commission noted that Harvel has entered a settlement with the buyer to enable a contractor to complete additional clean up and electrical repairs to the buyer’s satisfaction.
STELLA A MAYO (FAIRFIELD) – The Commission accepted the voluntary surrender of the real estate license of Mayo, effective September 30, 2024. The Commission dismissed without prejudice allegations that Mayo violated provisions of the Real Estate License Law and Commission Rules. Mayo neither admitted nor denied misconduct.
MARGARET S MCCANN (GRAHAM) – By Consent, the Commission suspended the broker license of McCann for a period of 6-months, effective September 30, 2024. The Commission then stayed the suspension in its entirety upon certain conditions. The Commission found that in 2021-22, McCann listed a property for sale and received an inspection report from a prospective buyer that revealed facts which were material to the transaction. After that buyer terminated the contract, McCann did not disclose the material facts she had learned to the eventual buyer of the property.
KATY A MOSS (GASTONIA) – By Consent, the Commission suspended the broker license of Moss for a period of 1-month, effective September 16, 2024. The Commission found that in January 2024, Moss, acting as a buyer agent in a transaction, was instructed to take keys from the listing agent’s lockbox prior to the closing for delivery to the buyer at closing. Moss was made aware by the closing attorney that the seller’s documents had not yet been received but gave the keys to the buyer following the buyer’s signing of closing documents, and a week prior to recordation of the deed. The buyer started demolition work on the property prior to the deed being recorded. The Commission noted that the deed was subsequently recorded.
PREMIER SANDHILLS VENTURES LLC (PINEHURST) – By Consent, the Commission reprimanded the firm effective September 16, 2024. The Commission found that in 2022, a broker affiliated with the Firm acted as listing agent for an investor-client selling a residential property they had renovated. The seller disclosed to the listing agent that a chimney fire had caused some damage, and that he had documents evidencing that an engineer had recommended a repair method, and that the damage had been repaired. The listing agent did not receive the seller’s documents and failed to disclose the fire to potential buyers. A buyer purchased the property and discovered after closing that there had been a fire. The Commission noted that the firm has entered a settlement with the buyer to enable a contractor to complete additional clean up and electrical repairs to the buyer’s satisfaction.
SARA J STANGER (JACKSONVILLE) – The Commission accepted the voluntary surrender of the real estate license of Stanger, effective September 18, 2024. The Commission dismissed without prejudice allegations that Stanger violated provisions of the Real Estate License Law and Commission Rules. Stanger neither admitted nor denied misconduct.
Beneath the Surface: The Pre-Hearing Process
Part Three of an in-depth Five-Part series on the Complaint and Disciplinary Process in Regulatory Affairs. See Part One “Navigating Complaints: A How-To Guide” from the August 2024 eBulletin and Part Two “The Road Ahead: After the Investigation” from the September 2024 eBulletin.
In Part One of our series, we explored the complaint and investigative process in Regulatory Affairs, and in Part Two, we examined what happens once an investigation is complete. In Part Three, we shift our focus to what happens after the Commission has found probable cause for disciplinary action and ordered a hearing in a case.
After the Commission has found probable cause and ordered a hearing in a case, the broker, referred to in a disciplinary case as a “Respondent,” receives the case status report (“CSR”) and a letter from the Commission staff attorney handling the prosecution of the case. These documents set the date for the hearing and provide information so that the Respondent can schedule a date for the pre-hearing conference.
The pre-hearing conference is a conference with the Commission staff attorney and the Respondent and/or the Respondent’s attorney. The conference is an opportunity to discuss details of the case, the hearing process, explore potential settlement options, and clarify questions. The Commission staff attorney serves as the primary point of contact in a disciplinary case and may answer procedural questions for a Respondent. The Commission staff attorney cannot provide legal advice and cannot give opinions to a Respondent, such as whether or not to accept a proposed settlement or proceed to a hearing. Respondents are encouraged to actively engage in discussions with the Commission staff attorney during the pre-hearing conference and to seek legal advice from an attorney, if the Respondent wishes.
North Carolina General Statute § 93A-6 grants the Commission the authority to take disciplinary action in the form of a suspension, revocation, or reprimand against a licensee who has violated any of the provisions of § 93A or Commission rules. These forms of discipline are imposed on a case-by-case basis, after a thorough consideration of the facts and their application to the relevant law.
A revocation is an official act by the Commission taking away a real estate license. A license suspension may be either active or stayed, or some combination of both. If a licensee is actively suspended, a licensee may not engage in real estate brokerage activity during the period of active suspension. If a licensee receives a suspension that is stayed, a licensee may engage in real estate brokerage activity during the period of the stayed suspension, subject to any other limitations that may be imposed on the license. A reprimand is a rebuke or a statement of disapproval by the Commission.
Most disciplinary cases at the Commission are settled by bringing to the Commission a proposed agreement between the Commission staff attorney, the Respondent, and/or the Respondent’s attorney, if any. In addition to a disciplinary sanction, a Respondent may also agree to complete real estate education courses and/or satisfy other conditions as part of a settlement. These conditions are unique to each case and relate to the misconduct of the Respondent. Pursuant to Commission Rule A .0615, settlements must be in writing and signed by the Respondent no later than two (2) days before the scheduled hearing. All settlements must receive final approval by a vote of the Commission members at an official meeting
Cases that are not resolved by agreement or where an agreed settlement is not accepted by the Commission proceed to hearing before the Commission members. Next month, we will take a close look at what happens during a disciplinary hearing.
Commission Presentations
September 2024 Presentations
Miriam Baer, Executive Director, and Janet Thoren Director of Regulatory Affairs, spoke at Greensboro Regional REALTORS®, on September 4th.
Bill Aceto, Commission Vice-Chair, and Janet Thoren, Director of Regulatory Affairs, spoke at Land of the Sky Association of REALTORS®, on September 6th.
Bruce Rinne, Information Officer, spoke at Central Carolina Association of REALTORS®, on September 9th.
Chad Wilson, Auditor/Investigator, spoke at Highlands-Cashiers Board of REALTORS®, on September 18th.
October 2024 Presentations
*These presentations are subject to change due to the availability of Commission members and/or staff.*
Brian Heath, Consumer Protection Officer, will speak at Property Management Committee of Durham Regional Association REALTORS® on October 1.
Brian Heath, Consumer Protection Officer, will speak at exp Realty LLC on October 17.
Miriam Baer, Executive Director, and Janet Thoren, Director of Regulatory Affairs, will speak at NC REALTORS® Annual Meeting, on October 20th.
Anthony Lindsey, Commission Chair, Bill Aceto, Commission Vice-Chair, Miriam Baer, Executive Director, and Janet Thoren, Director of Regulatory Affairs, will speak at NC REALTORS® Annual Meeting, on October 21st.
Has the World Exploded? The NAR Settlement, Commission Law and Rules
What is a Broker to Do?
Let’s begin by saying that the world has not exploded. There are important changes taking place that have a particular impact on brokers who are REALTOR members. Earlier this year, the National Association of REALTORS® (NAR) entered into a settlement agreement in which it agreed to the following two practice changes, among other things:
- Compensation offers are prohibited in a Multiple Listing Service MLS.
- MLS participants working with buyers are required to enter into written agreements with their buyers before touring a home.
To have a full understanding of these practice changes and their relation to License Law and Commission Rules, brokers must understand that this change is mandated as part of a civil settlement between private parties and does not change or override License Law, or Commission rules. It involves members of NAR, state and local REALTOR associations, and various[KC1] MLS entities. The Commission licenses and regulates brokers who are members of these various entities, but many of the Commission’s licensees are NOT members of any of these entities. Those licensees may be impacted but are not otherwise subject to these new rules.
Now let’s dive into the two major practice changes for brokers who are subject to the settlement.
A. Compensation Offers
Communication with buyers and sellers has always been essential, but in the post-settlement world, it is imperative. If you are a listing broker, you should discuss offers of compensation with your seller-clients at the time of listing and explain the pros and cons of offering compensation. If they are agreeable to such an offer, they can sign NC REALTORS® Form #220 (Cooperating Compensation Agreement) up front and you can have it ready for any prospective buyers. The seller can also delay agreeing to any offer of compensation until a later date or decide to do so on a case-by-case basis.
If you are seeking to represent a buyer, once you have made the proper agency disclosure utilizing the, “Working With Real Estate Agents” (WWREA) publication, a proper agency relationship should be established either orally or in writing to meet the requirements of Rule 58A .0104. As part of the creation of the agency relationship, you should disclose the full amount of your fee in your discussions and explain to your client that if they choose a home with an offer of compensation, and that offer is less than their fee, the client will be responsible for paying the difference. If there is no offer of compensation, the buyer will be responsible for paying the full fee to you at closing. When you identify properties that meet your buyer’s criteria, you should determine whether or not there are offers of compensation on each property and present that information to your buyer-client so they can determine which properties they want to view. In this way, the buyer is able to make a fully informed decision. If you cannot determine whether or not there is an offer of compensation, you should inform your buyer of that as well and remind them of the possible scenarios.
Here are a few important things to know about offers of compensation involving North Carolina brokers who are subject to the REALTOR settlement:
- Are compensation offers eliminated? Absolutely not. They are prohibited from being offered in the MLS, but they may still be offered by either the listing firm/broker or the seller.
- Can I attach a contingency to the standard offer to purchase making the offer contingent on an agreement to compensate me as the buyer agent? No. Commission Rule 58A .0112 prohibits this. Any offer to compensate a buyer broker is between the listing firm/broker or the seller and the buyer broker and should not be part of the contract between the buyer and the seller.
- Can a buyer ask for seller concessions in their offer and use those concessions to pay their buyer broker? Yes. However, seller concessions can be used by the buyer for whatever purpose the buyer chooses and there is no guarantee they will be used to pay the buyer broker.
- If a buyer broker uses the NCR form 220, can it be sent to the listing broker simultaneously with the offer to purchase? As a last resort, yes. However, the buyer broker must be clear that the offer is not contingent on the signing of the 220. The buyer must also understand that the seller might sign the offer, creating a binding contract, but not sign the 220 agreeing to pay the buyer broker compensation or they may sign the 220 agreeing to only part of the compensation, leaving the buyer responsible for the rest.
- Can the buyer broker send form 220 and an unsigned offer to purchase, and wait for the seller to sign both before the buyer signs either? Yes. Keep in mind that even if the seller agrees to both as submitted, no contract will be formed until the documents are signed by all parties and acceptance is communicated. The best practice is for a buyer broker to determine what properties suit their buyer client’s needs, what compensation is being offered, if any, and present the properties and offers of compensation to the buyer to determine which properties the buyer may want to view or consider further based on their own financial situation.
- If I am a listing broker, is it better for my seller to not agree to offer compensation up front and wait to see what the offer is before agreeing to pay a buyer broker’s fee or to go ahead and offer it up front? Either is an option, and in both cases the seller can consider their bottom line in the context of the negotiation process.
- If I am a listing broker, and my seller signs a 220 before receiving any offers, does that mean they have to accept the first offer that comes along, or they still owe the buyer broker compensation? Certainly not. In the past, cooperating compensation was offered up front through the MLS, and buyers submitted offers that were not accepted, and no payment was due. Now, even though cooperating compensation offers are no longer made through the MLS, and the offer of compensation may not be the same from one property to the next, merely announcing the compensation offered in the event of a successful transaction does not bind the seller until a final agreement is reached. Listing brokers/firms should consult with their own attorneys to determine the best methods of advertising offers of compensation to remain in compliance with the terms of the NAR settlement. Just remember, form 220 states that the entitlement to the compensation will be determined by the buyer broker’s performance as the procuring cause of any sale of the property to the broker’s client. The seller can still negotiate any offer.
Written Agreements with Buyers
Under the terms of the NAR settlement agreement, beginning August 17, 2024, MLS participants working with buyers are required to enter into written agreements with their buyers before touring a home. Touring a home includes situations where the buyers and broker visit the home and walk through it together as well as when the broker visits the home and provides a video tour for the buyers who may not be local. It does not include videos posted by a listing broker to advertise the property, even when those are viewed by a buyer.
The NAR settlement language does not require an agency agreement, just a written agreement. However, a North Carolina broker cannot be a non-agent; the broker must either represent the seller or the buyer and should use the Working with Real Estate Agents Disclosure form to make the appropriate disclosure. If the broker is representing the buyer, the Commission rules allow an oral agency agreement until the time an offer is written, but the settlement requires an agreement in writing.
Buyer brokers have always had the option of requiring buyers to sign a buyer agency agreement prior to touring any homes. Some are concerned that a buyer may not be ready to sign a full buyer agency agreement at that point in time. Those brokers may choose to use a non-exclusive buyer agency agreement. Other entities have created “touring agreements” that permit a broker to show a home to a buyer. These touring agreements contain provisions for some small fee or no fee at all, and are limited to one day, one week, one property, etc. As stated earlier, communication with a potential buyer-client is crucial at this stage, including an understanding of who the broker represents – buyer or seller. It must be one or the other. Buyer brokers should discuss each of these possibilities with buyers and let the buyer determine which is best for them.
Any touring agreement or other type of agreement designed to meet the NAR settlement requirement must comply with Commission rule A.0104. This rule includes both agency agreements and any other agreements for real estate brokerage services. Touring a home with or for a buyer is a real estate brokerage service, so any agreement for these services must be for a definite period of time, include the broker’s license number, provide for termination without prior notice at the expiration of that period, and contain the required Fair Housing language.
Brokers-in-charge should create written policies and train their affiliated brokers in how to navigate working with sellers and buyers and emphasize communication with all parties as being key. The world is not exploding, it is a shift in the practice of brokerage that can be navigated by thoughtful planning and communication. In the end, the goal remains the same for all, and that is to find buyers for sellers wanting to sell and helping buyers get into a home that meets their needs. All parties working together can continue to make the dream of home ownership a reality.