Texas Real Estate Contracts
4 th Edition
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Chapter 9: Real Estate Employment
Contracts
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Employment contracts, in general
• General Agency
– Independent Contractor Agreements
• Special Agency
– Listing Agreements
– Buyer Representation Agreements
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General Agency
• A general agency is an agency whereby the agent is given authorization to conduct several transactions.
• The principal is responsible for all acts of the agent performed within the scope of the agency.
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Special Agency
• In a special agency, the agent is given authorization for only limited situations.
• Therefore, the principal is not responsible for the acts of the agent.
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Seller Agency
• The agency relationship created between a broker and seller is a seller agency.
• The contracts involved are listing agreements.
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Buyer Agency
• The relationship between a broker and a purchaser is a buyer agency.
• The agreements used are buyer representation agreements.
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Independent Contractor Agreements
• Section 3508 of the Internal Revenue Code provides for independent contractor status for a salesperson regardless of control.
• This provision requires
– there be a written independent contractor agreement that contains the words, “the individual will not be treated as an employee with respect to such services for federal tax purposes,”
– the individual have a real estate license, and
– the amount paid to the individual be based on production (commission) rather than the number of hours worked.
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Listing Agreement
• In Texas, the written agency relationship between a seller and broker is a listing agreement.
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Types of Listing Agreements
• Exclusive Right to Sell Listing
• Exclusive Agency Listing
• Open Listing
• Net Listing
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--Exclusive Right to Sell Listing
• An exclusive right to sell listing gives the broker the authority to sell the property, but entitles the broker to a commission regardless of whether the broker or the property owner sells the property during the term of the listing.
• This is the most common type of listing used in Texas in sales.
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--Exclusive Agency Listing
• An exclusive agency listing is a listing where the broker is entitled to a commission only if he or she sells the property during the listing period.
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--Open Listing
• An open listing is a listing where the seller can go to several different brokers to list the property and the first broker that sells it gets the commission.
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--Net Listing
• A net listing is a listing in which the broker's commission is any amount above the agreed on sales price.
• However, the rules of the Texas Real Estate
Commission cautions against the use of such listings because of the dangers associated with the broker putting his or her interests above the interests of the client.
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Required Elements of a Listing
Agreement
• A listing agreement must contain all of the essential elements of a contract to be valid.
• The Texas Occupations Code requires that a commission agreement be in writing and signed by the party to be charged in order to be enforceable.
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Multiple Listing Service and the
Multiple Listing Service Profile Sheet
• The multiple listing service is a system, usually available through a local board of realtors, that disseminates a broker's information on listed properties to other member brokers and through which participants offer cooperation on transactions as well as specific compensation.
• A multiple listing service profile sheet is typically made available by the MLS operator for use by participants to indicate all the details of the particular listed property.
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Completion of a Standard Listing
Agreement
• The real estate trade associations are the organizations that typically draft these agreements.
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Discussion of Listing Agreement
Paragraphs
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Seller’s Disclosure Notice
• The Texas Property Code requires a seller of residential real property that consists of no more than one dwelling unit in Texas to give the buyer written notice of the property condition.
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--No Duty to Disclose
• information related to whether a death occurred on the premises by natural causes, suicide, or an accident unrelated to the condition of the property.
• whether a previous occupant of the premises had, may have had, has, or may have AIDS, HIV related illnesses, or HIV infection.
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Buyer Representation Agreement
• The buyer representation agreement creates an agency relationship between the real estate broker and the buyer in a real estate sales transaction.
• In Texas, the most commonly used buyer representation agreement is the exclusive right to purchase representation agreement.
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Discussion of the Standard Buyer
Representation Agreement
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Agency Disclosure Form
• The real estate licensee is also required to furnish a party in a real estate transaction a written agency disclosure notice at the time of the first substantive dialogue.
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Exceptions
The licensee is not required to provide the notice if
• the proposed transaction is for a residential lease for not more than one year and a sale is not being considered; or
• the licensee meets with a party who is represented by another license holder.
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Termination of Real Estate
Employment Agreements
• A form commonly used by the parties to terminate the listing agreement by mutual agreement is the Termination of Listing
Agreement form by the Texas Association of
Realtors
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