Broker Path to Success

We understand that brokers may need some assistance navigating NAR’s settlements. The Broward, Palm Beaches & St. Lucie Realtors® and BeachesMLS are committed to providing brokers a path to success. Below are sections that serve as a resource guide of best practices centered around the changing market conditions due to industry-wide lawsuits.

Our Mission

The mission of the Broward, Palm Beaches & St. Lucie Realtors® and BeachesMLS is to enhance our members' ability and opportunity to conduct business professionally, ethically, and profitably throughout their careers.   

Duties to Clients  

Understanding the difference between a single agent, transaction broker, and no brokerage relationship is critical. Under Florida statute 475.278, it is presumed that all licensees are operating as transaction brokers unless a single agent or no brokerage relationship is established in writing with a customer. This means that if you are representing as a single agent or no brokerage relationship, you had better have it in writing. All relationships have different duties.

Transaction Broker

provides a limited form of representation to a buyer, a seller, or both in a real estate transaction but does not represent either in a fiduciary capacity or as a single agent. The duties include the following:

  • Dealing honestly and fairly

  • Accounting for all funds

  • Using skill, care, and diligence in the transaction

  • Disclosing all known facts that materially affect the value of residential real property and are not readily observable to the buyer

  • Presenting all offers and counteroffers in a timely manner, unless a party has previously directed the licensee otherwise in writing

  • Limited confidentiality unless waived in writing by a party. This limited confidentiality will prevent disclosure that the seller will accept a price less than the asking or list price, that the buyer will pay a price greater than the price submitted in a written offer, of the motivation of any party for selling or buying property, that a seller or buyer will agree to financing terms other than those offered, or of any other information requested by a party to remain confidential

Single Agent

The duties include the following:

  • Dealing honestly and fairly

  • Loyalty

  • Confidentiality

  • Obedience

  • Full disclosure

  • Accounting for all funds

  • Skill, care, and diligence in the transaction

  • Presenting all offers and counteroffers in a timely manner, unless a party has previously directed the licensee otherwise in writing

  • Disclosing all known facts that materially affect the value of residential real property and are not readily observable

As you can see, there are four additional duties owed when representing a single agent compared to a transaction broker: Loyalty, Confidentiality, Obedience, and Full Disclosure. Additionally, there are specific disclosure requirements when acting as a single agent.

No-Brokerage Relationship

The duties include the following:

  • Dealing honestly and fairly

  • Disclosing all known facts that materially affect the value of the residential real property which are not readily observable to the buyer

  • Accounting for all funds entrusted to the licensee

As you can see, a no-brokerage relationship creates the least amount of duties owed by a licensee. Additionally, there are specific disclosure requirements when acting in a no-brokerage relationship.

Additional information on this subject can be found in Florida Statute 475.278. 

Brokerage Housekeeping  

Due to a series of outside influences, brokers are experiencing the need to wear several hats in managing their companies. There are numerous risk management components to consider. Below are a few of the major internal documents to review and consider in order to recognize and reduce risk in your business.   

Insurance  

Professional liability insurance protects companies against claims made for inadequate work, negligence, or additional claims: 

  • E&O insurance: Costs vary by location, brokerage needs, brokerage size, coverage limitations, and individual risk assessment comfort levels.   

  • Additional Insurance: Antitrust, copyright infringement, wire fraud, and fair housing should be considered in assessing overall insurance needs.   

  • NAR's partnership with Victor Insurance Managers LLC provides E&O Insurance benefits to Realtor® members. View Partnership

  • Recommendation:  

    • Review current insurance coverage  

    • Consult insurance carrier(s)  

    • Consult business partners  

    • Consult Counsel   

Antitrust Policy  

Consider implementing and upholding a written antitrust policy in your business. Brokers may be held liable for the anticompetitive behavior of their salespeople and staff, so it is important to have an antitrust compliance program in place to educate and train staff.  

Broward, Palm Beaches & St. Lucie Realtors® is a not-for-profit trade association devoted to improving the business conditions of the real estate industry. Broward, Palm Beaches & St. Lucie Realtors® meetings and events often include real estate professionals and other industry stakeholders who compete with each other or work for competing businesses. Broward, Palm Beaches & St. Lucie Realtors® is committed to conducting all meetings and events in a professional, ethical, and lawful manner, including in adherence to all antitrust laws. To that end, the topics for this meeting will focus on advancing the interests of real estate professionals and consumers of real estate services, increasing competition, reducing risk for all parties involved in real estate transactions, and sharing insights on business best practices. The following discussion topics are always prohibited: agreements to fix prices, limit product or service offerings, allocate geographical territory or customers, and refuse to deal. Any discussion inconsistent with this policy will not be tolerated.  

Policies & Procedures  

  • Have a written independent contractor agreement and consider including a mandatory arbitration clause and class action waiver provision.  

  • Address the use of AI in your policies/ procedures. AI platforms are not always accurate, and their output may not comply with fair housing laws. Additionally, do not use AI to create content you wish to copyright, as AI-generated works are typically not protected under U.S. Copyright law.  

  • Review training materials and ensure compliance with all regulations, especially antitrust. Note training materials have been used as evidence in jury trials against brokerages to prove liability. Do not put anything in training materials or in writing in general that you would not want to be shown to a jury.  

  • Other hot topics to consider implementing policies on include harassment, fair housing compliance, RESPA compliance, advertising, and social media use.  

  • Ensure your policies/ procedures are updated regularly and applied consistently and uniformly.  

  • Email retention.  

  • Broker Role-Playing Exercises  

  • Put your agents in the hot seat.  

  • Overcoming testers and legal pitfalls.  

Additional Products & Companies  

Now is the time for brokers to examine their products, vendors, and affiliated companies thoroughly. Does NAR's proposed settlement require changes or rewriting of policy and procedures with working relationships? Below are some areas you should review.

  • Title/Escrow 

  • Insurance Lending  

  • School  

  • Relocation  

  • Referral 

  • Other

Social Media Tips 

During NAR’s lawsuit trial, it became apparent that social media played a significant role for the prosecution team. Having a plan and policy in place to safeguard your brokerage and agents is imperative.

Social Media Policy

  • Establish clear guidelines

  • Safeguard your reputation

  • Prevent Risks

Disclosure Requirements

  • Disclosures on all advertisements

  • Know the State of Florida’s requirements

  • Identify and explain these requirements in your policy

Terms of Use

  • Establish for any blog or interactive website

  • Consider using NAR’s Social Media Policy template View Policy

  • Include a take-down policy for any unlawful or objectionable content

  • Declare ownership of any content posted on your site

Be Truthful

  • Communication should be honest and truthful

  • Federal Truth-In-Advertising and NAR Code of Ethics Article 12

  • Avoid misleading or deceptive representations

  • Require current and accurate information

Review & Update

Review the policy annually.

  • Discuss brand guidelines, etiquette, and appropriate engagement

  • Be careful with using memes

  • Update the policy to keep up with constant changes

Empowering Agents  

Review training materials and ensure compliance with all regulations, especially antitrust. Note training materials have been used as evidence in jury trials against brokerages to prove liability. Do not put anything in training materials or in writing in general that you would not want to be shown to a jury.  

Buyer Agent Value Proposition

The settlements may trigger some persuasion for agents to better show the value they offer buyers in order to secure them as clients. BeachesMLS has many unique benefits that may impress buyers, but here are some that are great to promote when creating a buyer value proposition pitch.

Local Logic

  • Tap into granular demographics insights for any property to drive better real estate decisions. Income, population, housing, household, education, and commute.

  • Better understand location and the impact of the surrounding points of interest on real estate prices. Shopping, nightlife, cafes, groceries, restaurants, and bus stops.

Builder’s Update & New Home Source Pro

  • Utilize the latest, cutting-edge map-based technology to deliver comprehensive and highly accurate listings of new construction and to-be-built lots, homes, and condos directly to homebuyers with Builder’s Update.

  • Discover thousands of America's premier homebuilders, search and save new homes and communities nationwide, and guide your customers through virtual home buying with New Home Source Pro.

Market Snapshots  

  • How’s the market doing? Get your real estate answers in a snap! We’ve compiled pages and pages of monthly and annual market data into quick and easy-to-digest snapshots for you and your customers.

  • Share or save our eye-catching snapshots (infographics), videos, and press releases. Infographics are also available in Spanish and Portuguese.

TransactionDesk & Authentisign  

  • Time is of the essence when submitting an offer. Quickly draft offers anytime, anywhere and from any web browser or mobile device with your TransactionDesk benefit.

  • Say goodbye to long acceptance periods. No matter how tech savvy the sellers are or aren't, signing is easy with Authentisign. Sellers just sign with a single click or tap.

Utility Connect - Coming Soon

  • Stand out by offering free concierge services to buyers and sellers before closing with your newest BeachesMLS benefit, Utility Connect.

  • Through your branded website, customers can connect to a home service specialist who will save them time and money on utility connection, movers, insurance, mail forwarding, and much more.

Risk Mitigation

A recent consumer study revealed that the actual value that Realtors® can truly offer consumers is risk mitigation. Consumers can easily find their dream home online in minutes from the comfort of their couch. In the past, Realtors® have strongly emphasized their ability to find their client their dream home, but that is not necessarily a significant value proposition anymore. However, the value that Realtors® offer lies in revealing what the average consumer does not know or can't see. Communicating to a buyer why a property may or may not be the best option for them or giving sound advice based on experience. It also involves understanding contracts and knowing how to avoid pitfalls that may safeguard their interests down the road. Sometimes, risk mitigation involves:

  • Having challenging conversations with clients about negotiations.

  • Keeping them apprised of all scenarios throughout the transaction as they unfold.

  • Being open and transparent when discussing potential risks. 

Communicating With Buyers  

Brokers must ensure their agents understand exactly how to communicate their value to their clients and help agents create and articulate their value propositions to their clients. Remember, commissions are always negotiable, and transparency is key!

  • Find a suitable property to show the buyer based on the buyer’s wants, needs, and budget. The agent is tasked with finding properties that meet the buyer's needs and make sense.

  • Agents are responsible for coordinating dates and times to show the buyer a property. They also need to know important details about the property and be able to communicate the home's features to the buyer.

  • Analyze the market and when it comes time to make an offer, buyer’s agents are responsible for analyzing the market to help their clients decide on an appropriate offer amount. Agents need to know the current state of the market on the macro scale and what’s happening in individual communities and neighborhoods. This information helps them assist buyers in coming up with a sound offer.

  • Write the offer once a buyer settles on the amount. It’s the agent’s job to prepare the offer and submit it to the listing agent or the seller. To do this effectively, agents need to understand what makes a sound and attractive offer.

  • Negotiate on the buyer’s behalf, and when it’s time to negotiate a deal, the agent acts as the liaison. The agent ensures that the deal is negotiated in the best interest of the buyer. The agent often counsels the buyer and presents counteroffers to the listing agent or seller when needed. In many cases, the buyer relies on the agent to provide them with the soundest information and advice in what is oftentimes their single most important investment.

  • Get the transaction to the closing table. From insurance to mortgage loans, agents often use their wealth of resources to ensure that a transaction goes from offer to closing table. Agents often help their clients understand exactly what they need to ensure the deal closes, and they have keys in hand at the end of the day.

Buyer Resources

Education Recommendations 

Recommended Rworld Education:

Ask An Attorney Live Q & A – Every Monday at 11 AM - Free Webinar

FR/BAR Residential and As-Is Contract Review – 3 Specialty CE (Spanish & English available) - Free

Understanding Buyer Broker Agreements – 3 Specialty CE

Play Fair, or Pay Later! A Realtor's® Essential Guide to Fair Housing – 3 Specialty CE

Fair Haven Simulation on Fair Housing – Free

Recommended BeachesMLS Education:

Keep It Legal and Tips to Keep Your Commissions – 2 Specialty CE - Free

iMapp for BeachesMLS Subscribers – Free

NHSPro Basics – Help your buyers & gain more clients with New Builds [New Home Source Pro) - Free

NHSPro Advanced – Stay Connected with Leads & Grow Your Business [New Home Source Pro) – Free

Track the Market with RPR Market Trends - Free

Jumpstart Your Business with RPR - Free

Advanced Learning Opportunities:

Accredited Buyer Representative Designation – 7CE

Real Estate Negotiation Expert Certification – 7CE

Commitment 2 Excellence (C2EX) Endorsement

At Home With Diversity Certification – 7CE

Register for upcoming classes

Compensation Do’s & Don’ts  

Do’s  

  • Use a buyer representation agreement to help buyers understand 1) exactly what services and value you are providing and 2) how much you charge.  

  • Use the BeachesMLS Compensation Disclosure Form available in Form Simplicity & TransactionDesk   

  • Visit NAR’s Facts for Realtors® page on compensation and the recent settlement.  

  • Remember, compensation is always negotiable.  

  • Leave compensation fields blank on forms rather than have them pre-filled out  

  • Be transparent - explain to your client how you get paid and why.  

  • Be prepared to convey your value to your client and articulate why you should be compensated.  

  • Make independent business decisions to limit exposure under antitrust laws.  

Don’ts  

  • Suggest to a seller that if they don’t make a certain amount of an offer of compensation, other Realtors® will steer buyers away from their property.  

  • Say that there is a “set commission rate.”  

  • Say that your services are free when representing buyers.  

  • Manually filter out listings by compensation being offered.  

  • Put anything on social media that you wouldn’t want a jury to read if you were on trial.