Governor Rick Perry recently announced the appointment of three new members to the Texas Real Estate Commission and designated John Walton of Lubbock as Chair.
John Walton replaces Mike Brodie of Plano as Chair of the Commission. Brodie served seven years on the Commission, the last four as Chair. Walton has been a member of the Commission since 2001 and will serve as Chair at the pleasure of the Governor. His term on the Commission will end January 31, 2007. Walton is a licensed real estate broker and owner of Century 21 John Walton Realtors in Lubbock.
Governor Perry selected Elizabeth Leal of El Paso and Mary Frances Burleson of Aubrey to fill broker positions on the Commission and William Flores of Sugar Land to serve as a public member. Overall, the Commission is composed of six broker members and three public members.
Mary Frances Burleson of Aubrey is a broker and president of Ebby Halliday Real Estate, Inc. She is immediate past president of the North Dallas Chamber of Commerce and an Executive Member of the Greater Dallas Chamber of Commerce. She serves on the Board of Directors for the National Association of Realtors and is a former Chair of the Board of the Texas Association of Realtors. Burleson is also a member of the Southern Methodist University Planned Giving Council. She received a bachelor’s degree from SMU. Her term will expire January 31, 2009.
Elizabeth Leal of El Paso is a broker-associate with Coldwell Banker deWetter
Hovious. She serves on the Board of Directors for Keystone Heritage Park, Border
AIDS Partnership and is the Texas Member of the Year for Texas Women’s
Council of REALTORS. Leal is a senior real estate specialist (SRS), a certified
residential specialist (CRS), and an accredited buyer representative (ABR),
She is a graduate of Texas State Technical Institute and the Realtor’s
Institute. Her term will expire January 31, 2009.
William Flores of Sugar Land is Senior Vice President and Chief Financial Officer
of Gryphon Exploration Company. He is a member of the Texas Society of Certified
Public Accountants, American Institute of Certified Public Accountants, the
Financial Executive Institute and serves as a director on the boards of PetroAlliance
Services Company, Ltd., the PARC, Inc., and Texas A & M University Association
of Former Students. He received his bachelor’s degree from Texas A &
M University and his master’s degree from Houston Baptist University.
His term will expire January 31, 2009.
The new members attended their first Commission meeting on April 19th with John Walton presiding as Chair.
The Texas Real Estate Commission held
its regularly scheduled meeting at the TREC headquarters in Austin, Texas on
Monday, April 19, 2004.
Chairman John Walton presided. Administrator
Wayne Thorburn introduced the new members: Mary Frances Burleson of Aubrey,
William H. Flores of Sugar Land, and Elizabeth Leal of El Paso.
Louise Hull of Victoria was elected
Vice-chair and James N. Austin of Fort Worth was elected secretary.
Staff reports were presented. Assistant Administrator Sabrina Hassumani reported
that there has been a steady increase in the number of licensees in the past
33 months.
After executive session, one recovery
fund claim was approved for payment in the amount of $50,000.
The Commission adopted amendments to 22 TAC §535.51, which changes the
fee provisions in three license application forms. The Commission adopted amendments
to 22 TAC §535.65(d) to permit accredited real estate schools to request
MCE credit for instructors of real estate core courses using an existing form,
and to §535.65(j) to permit a school to provide a roster of students who
take alternate delivery method or correspondence courses 10 days after the end
of the month in which the course was taken. The Commission adopted amendments
to 22 §535.101to increase application and renewal fees as described above
in section 535.51.
The Commission voted to request an
Attorney General's opinion to determine its authority to adopt amendments to
22 TAC §535.2, concerning broker responsibility. These amendments would
set a minimum standard of service for brokers. The amendments state that a broker
may not refuse to provide certain services, may not negotiate with a principal
who is represented under an exclusive listing agreement and clarify that delivering
an offer or counter-offer to the broker and his principal is not negotiating
with the principal as long as the broker representing that principal consents
to the delivery and the broker who makes the delivery does not attempt to discuss
the terms or conditions of the offer or counter-offer. The language which will
be submitted to the Office of the Attorney General (OAG) represents a compromise
that would allow fee-for-service brokers to continue to provide the services
desired by the consumer while protecting other brokers from liability or potential
violations of the License Act. No further action will be taken on this particular
rule amendment until the Attorney General makes a decision. The Commission also
voted to ask staff to develop a disclosure statement for use by fee-for-service
brokers for discussion at its next meeting on June 7, 2004.
The Commission voted to propose amendments
to 22 TAC §§535.217 and 535.223. The amendments to section 535.217
would require that licensed inspectors disclose to their client that they are
receiving a fee or other valuable consideration from a person other than their
client or paying a fee or other valuable consideration. The amendments to §535.223
would allow an inspector to allocate additional space on page 2 of the inspection
report for comments.
A schedule of rule reviews was proposed
for 2004. The review of §§535.92-535.403 specifically was proposed.
The Commission approved a Memorandum of Understanding between the Texas Real
Estate Commission and Real Estate Center at Texas A&M regarding the development
of mandatory continuing education courses.
There was discussion concerning draft mandatory continuing education rules.
The rules will be placed on the web site for comment. These rules were not proposed
for any action.
After discussion, the Commission trimmed
down the long term goals in the draft Strategic Plan for 2005-2009 and approved
the plan with the changes.
The Commission granted a motion for
probation in the Matter of Joseph Tome Slim, Hearing No. 03-258-032966.
The Commission set the next three meetings as follows: June 7, 2004, August 9, 2004 and October 18, 2004.
At its meeting on April 19, 2004, the Texas Real Estate Commission (TREC) authorized Administrator Wayne Thorburn to request an opinion from the Office of the Attorney General (OAG) regarding TREC’s statutory authority to establish minimum service standards for a real estate broker who enters into an exclusive agency relationship to represent a party to a real estate transaction.
The Commission will request an opinion from the OAG on the following questions:
1. Does TREC have the statutory authority to revise 22 TAC §535.2 of the Rules of the Commission by adding the following provisions:
(d) In negotiating for his or her principal a broker may not refuse to provide the following services when such services are appropriate in the transaction:
(1) accept and present to the principal offers and counter-offers to buy, sell, or lease the principal’s property or property the principal seeks to buy or lease;
(2) assist the principal in developing, communicating, and presenting offers, counter-offers, and notices that relate to the offers and counter-offers; and
(3) answer the principal’s questions relating to offers, counter-offers, and notices.
(e) Under §1101.652(b)(22) of the Act a broker may not negotiate or attempt to negotiate the sale or lease of property with a principal with knowledge that the principal is a party to an outstanding written contract that grants exclusive agency to another broker. Under §1101.652(b)(27) of the Act, a broker may not aid, abet, or conspire with another to circumvent the Act. A broker who represents a principal under a listing contract that grants an exclusive agency to the broker may not instruct or authorize another broker who represents another party in the transaction to negotiate directly with the principal.
(f) When a broker delivers an offer or counter-offer to another broker, the broker is not negotiating or attempting to negotiate with a principal he or she does not represent by delivering a copy of the offer or counter-offer to the principal he or she does not represent so long as the broker representing the principal consents to the delivery and the broker who makes the delivery does not discuss or attempt to discuss the terms or conditions of the offer or counter-offer with the principal he or she does not represent.
2. If the answer to question number 1 is no, the Commission will ask the OAG whether TREC has the statutory authority to revise 22 TAC §535.2 by adding only subsection (f) above as subsection (d).
Proponents of the rule argue that the Commission is authorized to adopt and enforce rules necessary to administer the Act and to enact rules to establish standards of conduct and ethics for persons licensed by the Commission. Further, proponents argue that section 535.2 of the current rules of the Commission require that “[a] broker is obligated under a listing contract to negotiate the best possible transaction for the principal, the person the broker has agreed to represent.” Thus, the Commission may provide further clarification of the meaning of the term “negotiate” to include the three services described above. Finally, proponents argue that because a licensee may not negotiate with a represented party under section 1101.652(b)(22) of the Act and a licensee may not aid and abet a violation of the Act under 1101.652(b)(22), TREC rules should clarify what services the represented party may expect from their broker, and when the opposite side broker may deal directly with the represented party.
Under this variation
of the rule for which the Commission requests an OAG opinion, a broker may
not refuse to provide the services when appropriate to the transaction. In
such a case, while the broker is not required to provide the services in all
instances, the broker may not refuse to provide the services when requested
and compensated by the broker’s client.
In addition, the Commission will ask the OAG whether subsection (f) of the
rule described above is within its statutory authority to adopt to provide
clarification of the apparent ambiguity in section 1101.652(b)(22) and (b)(27)of
the Act as described above. Section 1101.652(b)(22) prohibits a licensee from
negotiating or attempting to negotiate a real estate transaction with a represented
party. Unlike the laws governing attorney client relationships, there are
no exemptions to the statutory provisions.
In a situation where a fee-for-service broker is in a limited exclusive agency relationship with a seller, the broker may wish to instruct other agents who represent potential buyers to negotiate the transaction directly with the seller. They contend that to the extent that the seller does not want the broker to provide additional services, anything more unnecessarily obliges the seller to pay for unwanted services. However, TAR contends that instructing other brokers to negotiate directly with the principal violates section 1101.652(b)(27), in light of section 1101.652(b)(22). Further, TAR contends that a minimum service standard is necessary to prevent the buyer’s agents from unintentionally being perceived as and held liable for representing the seller as well.
The OAG request letter will be posted on the TREC website. Interested parties may brief the OAG on the issues raised by contacting the OAG Opinion Committee. More information about the opinion request process is available at the OAG website at www.oag.state.tx.us.
TREC
to Propose Amendments to
Mandatory Continuing Education Rules
After nearly two years of research and development, the Texas Real Estate Commission (TREC) will consider proposing rules at its next meeting on June 7, 2004 that will significantly change the mandatory continuing education (MCE) requirements for real estate brokers and salespersons to renew a license on active status. If adopted, the rules will change the process by which MCE courses and instructors are approved and will require all real estate licensees to attend a three hour legal update course and a three hour legal ethics course to fulfill the six legal hours of MCE to renew an active license under the Real Estate License Act (the Act).
The draft rules developed by the Commission incorporate the recommendations of the TREC Education Task Force, members of which were appointed by Chairman Mike Brodie in July 2002 to look at the present structure of MCE in Texas, analyze its effectiveness and make any necessary recommendations for improvements. In early meetings, the task force determined that the purpose of MCE should be “to expand and reinforce the knowledge, ethics, competency, and skills of Texas real estate licensees.” The task force mission was to re-think and re-invent the structure, delivery, reporting and content of MCE.
The following summarizes the most significant changes to the MCE rules that will be proposed at the June 7, 2004 meeting:
Comments on the draft rules may be
submitted to Loretta R. DeHay, General Counsel, Texas Real Estate Commission,
P.O. Box 12188, Austin, Texas 78711-2188, or to general.counsel@trec.state.tx.us.
by Ron Walker
Recently, the Texas insurance commissioner adopted revisions to a rule that concerns items of value offered by title companies (procedural rule P-53). Concerns have been raised over the years when a title company, as part of its marketing efforts, offers brokers and agents items such as virtual tours, fliers, and postcards in the hope that the brokers or agents would direct business to the title company. The revised rule was adopted in response to those concerns.
What does P-53 prohibit?
With respect to relationships with brokers and salespersons, P-53 provides that
a title company may not directly or indirectly pay or subsidize advertising
or promotional materials or activities of any producer. The definition of producer
includes real estate brokers or salespersons. The terms association or political
action committee are not listed in the rule’s definition of a producer.
Nonetheless, a title company will not be able to circumvent the intent of P-53
through the guise of association.
Prohibited activities are those that have the effect of subsidizing the business or advertising or promotional activities of a producer. Such activities include, but are not limited to, providing or subsidizing the cost of signs; advertising a property or a group of properties for lease or sale; electronic or hard-copy media describing, promoting, or advertising a property or group of properties; or boxes or similar items in which to store such advertising media. Title companies are also prohibited from conducting, sponsoring, or promoting or paying for any part of an event benefiting a producer, such as an open house, holiday party, or reception or convention event. This includes providing prizes, food, beverages, gifts, decorations, entertainment, professional services, and other items.
P-53 also prohibits a title company from providing or paying for furnishings,
postage, office supplies, electronic or hard-copy documents or media, computer
hardware or software, telephones, copiers, fax machines, office equipment, vehicles,
administrative, management, or staff services, rental space or office facilities
for the use of any producer.
Clearly, one of the intended and likely consequences of revised P-53 is to eliminate “freebies” from title companies to real estate brokers and salespersons.
Does P-53 affect my relationship
and dealings with other service providers such as lenders and surveyors?
No, P-53 regulates only the relationship between title companies and producers.
However, P-53 mirrors similar prohibitions in the Real Estate Settlement Procedures
Act (RESPA), which applies to the relationship between any settlement service
providers in a real estate transaction.
May a title company purchase
an advertisement in a magazine, such as a homes magazine owned by a broker?
P-53 does not prohibit a title company from purchasing advertisements in a broker’s
publications provided that the title company pays only a fair-market price for
the advertisements.
While a title company may purchase an advertisement for itself in such a publication, the title company may not generate a publication advertising a broker’s listings.
May title companies continue
to sponsor or advertise at real estate industry association events?
In response to a Texas Association of REALTORS® inquiry, the Texas Department
of Insurance stated that under P-53, “Title companies and title agents
may certainly advertise their businesses, but the department will direct its
enforcement resources to scrutinizing the essence of the advertising activity
to determine compliance with the stated intent and purpose of the rule. Clearly,
paying a producer an inflated price for advertising, over and above the normal
market rate, would be a violation.”
A better term than sponsor for this activity is advertiser, which more accurately reflects the allowable activity.
When selling advertising rights at association events to title companies or other settlement service providers, associations should enter into a written advertising agreement, define the specific advertising rights purchased, charge the advertiser no more than a fair market price for the advertising rights, and keep records that help establish the fair market price. TDI has received many inquiries about specific arrangements between title companies and local associations. To comply, the rights purchased under such arrangements must constitute bona fide advertising at fair market prices. The further the arrangement strays from traditional advertising rights, the more scrutiny TDI is likely to give it.
Ron Walker is director of legal affairs for the Texas Association of REALTORS®.
Other questions and answers may be found on TREC's web site at
http://www.trec.state.tx.us/questions/faq-enf.asp
Q. Does the "Third Party Financing Condition
Addendum", TREC form 40-1, effective for use 4-1-04, address the date of
the appraisal of the property or does it strictly address the "buyers"
application and ability to finance?
A. The addendum does not contain an express provision for obtaining an appraisal
by a certain date. The first paragraph does contain a blank for inserting the
number of days which the buyer has to notify the seller in writing that financing
approval cannot be obtained. The term "financing approval" relates
to the buyer's assets, income, and credit history, not to an appraisal of the
property.
Q. I am a licensed broker.
May I maintain an assumed name and office in one county and use my home located
in a different county as my main office address?
A. You can use your home office as your main office address and apply for a
branch office license for any other location. If you use a different name for
your second office, you will need to submit notification to the Commission of
the assumed name or dba. The Commission considers a "branch office"
as a place where the licensee meets with clients and customers to transact business.
Each branch office must be licensed.
Q. Please tell me where I
can find the law that states that a real estate agent has ethical, fiduciary
and other obligations or duties to a person with whom he has a contract.
A. Pursuant to §1101.557 of The Real Estate License Act (License Act) Chapter
1101, Texas Occupations Code, a real estate license holder who represents a
party in a real estate transaction acts as that party's agent. The agency relationship
creates a "fiduciary duty" that the agent owes to the principal. A
further description of disclosures regarding agency that licensees are required
to provide are found in §1101.558 of the License Act. Additionally, §531.1,
§531.2 and §531.3 of the Rules of the Texas Real Estate Commission
further describe the duties of fidelity, integrity and competency. You may access
the Texas Real Estate License Act and the Commission's Rules on the TREC web
site.
Q. We signed a listing agreement
to sell our home with an agent for a local real estate company. A few weeks
after signing, the agent moved to a different real estate company. She has been
calling us to try to get us to sign a new contract with her at the new company.
We want to stay with the company we started with. What is the status of our
listing agreement contract with the first real estate company?
A. Unless the agent and the first real estate company have some special agreement
whereby she takes all her listings with her to her new company, your listing
agreement contract is with the company and not the agent. You should review
your listing agreement contract carefully to determine with whom you have contracted.
If the agent changed companies and sponsoring brokers, and there is no arrangement
with the first company, she could be in violation of the Real Estate License
Act by negotiating or attempting to negotiate the sale of your property. However,
if she is simply soliciting your business, she would not be in violation of
our Act or Rules.
Q. I am a licensed agent.
I have a client who is interested in looking at property that is for sale by
owner (fsbo). May I contact the owner to ask if I can bring a client to see
the property and/or view the property in case other clients ask about it. May
I ask them if they will pay me a commission if I find the buyer?
A. You would not be in violation of the Texas Real Estate License Act or the
Rules of the Texas Real Estate Commission by contacting a seller who is not
represented by an agent. The seller has no obligation to pay a commission to
you even if you do find a buyer for his home.
Q. I have noticed, in newspapers
and on web sites, that persons from outside the state of Texas are placing ads
to sell timberland located in Texas. The ads do not contain any information
that the contact person in the ad is a Texas licensee. Is this legal?
A. Under Texas licensing laws, a person not located in Texas only needs a license
to sell property in Texas if the buyer and seller are legal residents of the
state and property is located wholly or in part in Texas. If all three criteria
are not present, the agent does not need a Texas license as long as they are
physically not in the state.
Q. I live in an apartment
complex. I told my manager about mold that is on my floor and in my air conditioning
vents. The manager sent maintenance to look at it, and they sprayed something
in the vent. Is this enough to take care of the problem? Am I in danger? Can
you help me?
A. In general, the Commission handles the licensing and discipline of real estate
agents. The Texas Department of Health has been given the responsibility by
the legislature of regulating mold assessors and remediators and other indoor
air quality related issues. You may want to contact them, or visit their web
site at www.tdh.state.tx.us. However, your first step should probably be to
contact your local tenant's association for guidance. Ultimately, if you cannot
get the mold issue properly taken care of to your satisfaction, you may want
to consult with a private attorney to discuss your legal options.
Q. I have property listed
for sale with a TREC licensee. Am I allowed to place and pay for an advertisement
of the property in the newspaper or on the internet with the licensee's and
my phone numbers?
A. The Commission regulates real estate licensees and their conduct. As far
as your advertisements, whether in the newspaper or on the internet, we cannot
tell you what you can or cannot do. However, if the agent's telephone number
is placed in your advertisement, that would appear to be an advertisement by
the real estate agent. As such, the advertisement would be subject to the requirements
of the statutes and rules that govern his activities, and they would, therefore,
need to comply with the Commission's advertising requirements. If the agent's
telephone number is listed, the ad must also include the name of the agent and
the agent's broker. Failure to include this information might lead to a complaint
being filed against the agent.
Q. Is a licensee required
to disclose to a potential buyer that a registered sex offender lives on the
same street as the property being purchased?
A. No. Neither the statutes and rules that govern a licensee's activities nor
the Texas Code of Criminal Procedure requires a licensee to disclose this information
to a prospective buyer of property. The Code of Criminal Procedure, Art. 62.045
(e) states, "An owner, builder, seller, or lessor of a single-family residential
real property or any improvement to residential real property or that person's
broker, salesperson, or other agent or representative in a residential real
estate transaction does not have a duty to make a disclosure to a prospective
buyer or lessee about registrants under this chapter ("registrants under
this chapter" are defined as persons who have been convicted of certain
enumerated sex offenses in this state or any other state). To the extent of
any conflict between this subsection and another law imposing a duty to disclose
information about registered sex offenders, this subsection controls."
Q. I am a real estate agent
and my husband is a real estate inspector. May I recommend him to potential
buyers to conduct inspections for them?
A. Under the Rules of the Texas Real Estate Commission, Section 535.156(b),
you have a duty to place the interest of your principal above your own. You
must deal honestly and fairly with all parties, but you represent only the principal
and owe a duty of fidelity to that principal. The Canons of Professional Ethics
and Conduct for Real Estate Licensees contained in the Rules of the Texas Real
Estate Commission state what is expected under the law and what your obligations
are under the law. The Rules may be found on our web site at www.trec.state.tx.us/formslawscontracts/rules_codes/trecrules.asp.
We recommend that at the very least you inform potential buyers that the inspector
is your husband, and you should make it clear to them that they have the right
to choose any inspector they wish to inspect the property.
Q. I purchased a home three
months ago. I gave money to my agent to pay an appraiser. The appraiser has
recently told me that the agent refuses to pay him. I contacted the agent and
the agent refuses to refund the money to me. What can I do?
A licensed real estate agent is required to properly account for or remit money
coming into his or her possession which belongs to others. A licensee is also
prohibited from commingling money that belongs to others with the licensee's
own money. If a licensee has taken money from you for the purpose of paying
the appraiser and has kept the money or applied it for some other purpose, you
may have grounds to file a complaint with us. If a complaint were to be filed
with the Commission regarding this issue, we may take disciplinary action against
the agent's license, however, we cannot order the licensee to pay the money
back to you. You would need to consult a private attorney about filing a lawsuit
to recover your money.
Q. Does an agent receive a
federal income tax Form 1099 from the title company reflecting the amount of
commission paid to the agent for tax purposes? If not a 1099 form, does the
agent receive any document stating the commission earned?
A. Income tax forms or payment of income taxes do not fall under the jurisdiction
of this Commission. We suggest you present your question to your broker, the
title company, your income tax preparer or the Internal Revenue Service.
Q. I am a licensed salesperson, and I wish to
form a corporation. Since I am a "salesperson", would I obtain a broker
license for my corporation through TREC even though I am not a broker?
A. It is permissible for a salesperson to form a corporation or a limited liability
company (LLC). If the corporation or LLC is engaged in the business of real
estate in any form, even if commission checks are run through the corporation
or LLC and nothing more, it must be licensed by TREC. Corporations and LLC's
are given the designation of "broker" by the Real Estate License Act
and Rules. TREC laws require an officer of the corporation or a manager of the
LLC be named as the "designated officer" for the corporation or "designated
manager" for the LLC. The designated officer or manager must be a licensed
broker.
It is your responsibility to ensure that your license is renewed in a timely manner. Any education you might require must be completed before your license expiration date if you want to maintain an active real estate license, unless you pay an additional $200 fee and complete your MCE within 60 days of the expiration date of your license.
Renewal forms are sent out to all licensees and may also be obtained on our web site. The Texas Real Estate Commission is not responsible for U.S. Postal Service delivery or knowing where to find you if you have moved and not filed a change of address with our office. Failure to receive a renewal notice does not provide a valid excuse for not renewing your license.
Consumer Complaints
Guerrero, Alfredo M.
(Killeen); license# 448348
Agreed reprimand of broker license, entered February 10, 2004 ; failed to
properly monitor and train a sponsored salesperson regarding the handling
of property management accounts and activities, in violation of §1(c)
of The Real Estate License Act [§1101.803 of the Texas Occupations Code,
effective June 1, 2003], and in violation of §15(a)(6)(W) of The Real
Estate License Act [§1101.652(b)(1) of the Texas Occupations Code, effective
June 1, 2003].
Anderson, Archie
L.
(Rockwall); license# 4838
Agreed 2 month suspension of professional inspector license, effective February
20, 2004, to be probated for 18 months effective March 20, 2004; Agreed administrative
penalty of $3,000 ; performing a real estate inspection in a negligent or
incompetent manner, in violation of §23(l)(3) of The Real Estate License
Act, Art. 6573a, Texas Civil Statutes [§1102.301 of the Texas Occupations
Code, effective June 1, 2003]; failing to report as in need of repair conditions
or symptoms which may indicate water penetration which are present and visible,
such as improper grading around foundation walls or plumbing leaks and failing
to report as in need of repair conditions that are present and visible and
may be adversely affecting foundation performance, such as erosion or ponding,
in violation of 22 TAC §535.228(a)(8) and (9)
Erickson, Virginia
(Southlake); license# 276594
Agreed reprimand of broker license, entered February 20, 2004; Agreed administrative
penalty of $750 entered February 20, 2004 ; acting negligently or incompetently
as listing agent when she knew, or should have known, the buyer failed to
deposit the earnest money in a sales contract and failed to inform the seller
of this significant information, in violation of §15(a)(6)(W) of The
Real Estate License Act [§1101.652(b)(1) of the Texas Occupations Code,
effective June 1, 2003]
Decker McKim
Realtors, LLC
(Seabrook); license# 433306
Agreed reprimand of limited liability company broker license, entered February
24, 2004; Agreed administrative penalty of $500, entered February 24, 2004;
failing to supervise adequately a sponsored salesperson who committed certain
violations of The Real Estate License Act and the Commission's Rules in a
real estate transaction, in violation of §1101.652(b)(1) of the Texas
Occupations Code; failing to obtain the written consent of both parties to
act as an intermediary in the transaction, in violation of §1101.559
of the Texas Occupations Code
McKim, George
Decker
(Seabrook); license# 83458
Agreed reprimand of broker license, entered February 24, 2004; while acting
as the designated manager for a licensed limited liability company, failing
to supervise adequately a sponsored salesperson who committed certain violations
of The Real Estate License Act and the Commission's Rules in a real estate
transaction, in violation of §1101.652(b)(1) of the Texas Occupations
Code; failing to obtain the written consent of both parties for the limited
liability company to act as an intermediary in the transaction, in violation
of §1101.559 of the Texas Occupations Code
Burchell, Rita
Rene
(Plano); license# 495511
Agreed 1-month suspension of salesperson license fully probated for 6 months,
effective February 27, 2004; acting negligently or incompetently as a buyer's
agent when she received a termite report for the buyer but did not review
it, nor provide a copy to the buyer until the date of closing, in violation
of §15(a)(6)(W) of The Real Estate License Act [§1101.652(b)(1)
of the Texas Occupations code, effective June 1, 2003]
Griffin, M.
Lynne
(Haslet); license# 431664
Revocation of broker license, effective February 27, 2004; conducted real
estate brokerage activities either individually or through associated salespersons
after her broker's license expired and subsequently filed a late renewal application
wherein she responded "NO" to the question "Have you ever acted,
or attempted to act, as a real estate broker at a time when not properly licensed?"
and is guilty of procuring a real estate license for herself by fraud, misrepresentation,
or deceit, or by making a material misstatement of fact in an application
for a real estate license, in violation of §15(a)(2) of The Real Estate
License Act [§1101.652(a)(2) of the Texas Occupations Code, effective
June 1, 2003]
Wood County
Realty, Inc.
(Mineola); license# 392545
Agreed 3 month suspension of broker license fully probated for 30 months,
effective March 29, 2004; acted negligently or incompetently and failed to
properly account for money and failed to properly deposit monies for the following
reasons. A salesperson it sponsored was authorized to conduct property management
services but not directly supervised. The salesperson collected on behalf
of an owner rents and security deposits, remitted insufficient checks for
these funds to the owner, and otherwise converted the owner's funds for the
salesperson's personal use. The owner obtained a judgment against the broker's
designated officer. After a complaint was filed with the TREC, the broker
and designated officer signed a promissory note to the owner for satisfaction
of the judgment, in violations of §15(a)(6)(W) of the Real Estate License
Act [§1101.652(b)(1) of the Texas Occupations Code, effective June 1,
2003], 22 TAC §535.146 and 22 TAC §535.159 of the Rules of the Texas
Real Estate Commission
Smith, Traci
Gero
(San Antonio); license# 459095
Agreed reprimand of salesperson license, entered March 5, 2004; Agreed administrative
penalty of $1,000, entered March 5, 2004; acting negligently or incompetently
by changing the listing price in the MLS without the written consent of the
property owner, in violation of §15(a)(6)(W) of The Real Estate License
Act [§1101.652(b)(1) of the Texas Occupations Code, effective June 1,
2003]; holding herself out as in charge of a real estate brokerage by advertising
herself as "owner" although licensed only as a real estate salesperson,
in violation of §15(a)(6)(P) of The Real Estate License Act [§1101.652(b)(23)
of the Texas Occupations Code, effective June 1, 2003] and 22 TAC §535.154(e)
of the Rules of the Texas Real Estate Commission
Rodriguez,
Edward E.
(San Antonio); license# 369597
Agreed 1 month suspension of broker license fully probated for 1 year, effective
March 12, 2004; Agreed administrative penalty of $500 due May 12, 2004; acting
negligently or incompetently by failing to correctly input information on
a HUD bid causing the buyer to lose her purchase and retaining cash earnest
money in a file folder instead of in a trust or escrow account, in violation
of §15(a)(6)(W) of The Real Estate License Act [§1101.652(b)(1)
of the Texas Occupations Code, effective June 1, 2003]; permitting an inactive
salesperson associated with his company to negotiate a transaction, in violation
of §15(a)(6)(S) of The Real Estate License Act [§1101.652(b)(26)
of the Texas Occupations Code, effective June 1, 2003]
Nguyen, Thanh
Cong
(Arlington); license# 444827
60-day suspension of broker license, effective March 12, 2004; acted negligently
or incompetently and failed to properly account for or remit money coming
into his possession which belonged to another when he acted as a real estate
agent and as a mortgage broker in a real estate sales transaction wherein
the contract terminated, Mr. Nguyen executed the buyer's signatures to the
termination and release of earnest money form and wrote in instructions to
the title company to transfer the earnest money to a new contract without
the buyers' authority, subsequently the title company issued a check to the
buyer for release of the earnest money, Mr. Nguyen came to negotiate the check
without the buyers' authority as he intended it to replace funds he maintained
his mortgage company paid on behalf of the buyers, and not intending to harm
anyone, after the hearing was held, he tendered the funds to the buyers, in
violation of §15(a)(6)(E) and §15(a)(6)(W) of The Real Estate License
Act [§1101.652(b)(9) and §1101.652(b)(1) of the Texas Occupations
Code, effective June 1, 2003]; Broker also acted negligently or incompetently,
associated with an unlicensed corporation that conducted real estate brokerage,
and paid or divided commissions with an unlicensed corporation for its real
estate brokerage when he conducted his real estate brokerage services through
a corporation not licensed as a real estate broker, and failed to display
the Consumer Information Form 1-1 in his place of business, in violation of
§15(a)(6)(F), 15(a)(6)(S), and15(a)(6)(W) of the Real Estate License
Act [§1101.652(b)(11), §1101.652(b)(26), and §1101.652(b)(1)
of the Texas Occupations Code, effective June 1, 2003], and 22 TAC §531.18
of the Rules of the Texas Real Estate Commission
Peterson, Gary
Glenn
(Abilene); license# 429264
Agreed reprimand of broker license, entered March 24, 2004; failing to provide
the statement of information about brokerage services to a party to a real
estate transaction at the first face-to-face meeting, failing to use current
standard TREC contract forms and failing to request that a title commitment
be delivered in a timely manner, thereby acting negligently or incompetently
in performing an act for which a person is required to hold a real estate
license, in violation of §15(a)(6)(W) of The Real Estate License Act
[§1101.652(b)(1) of the Texas Occupations Code, effective June 1, 2003]
Barnes, Mary
Pat
(Mineola); license# 286883
Agreed 3 month suspension of broker license fully probated for 30 months,
effective March 29, 2004; acted negligently or incompetently and failed to
properly account for money and failed to properly deposit monies for the following
reasons. A salesperson she sponsored through her corporation was authorized
to conduct property management services but not directly supervised. The salesperson
collected on behalf of an owner rents and security deposits, remitted insufficient
checks for these funds to the owner, and otherwise converted the owner's funds
for the salesperson's personal use. The owner obtained a judgment against
the broker. After a complaint was filed with the Texas Real Estate Commission,
the broker and corporation signed a promissory note to the owner for satisfaction
of the judgment, in violation of §15(a)(6)(W) of the Real Estate License
Act [§1101.652(b)(1) of the Texas Occupations Code, effective June 1,
2003], 22 TAC §535.146 and 22 TAC §535.159 of the Rules of the Texas
Real Estate Commission
Sommer, Mark Allen
(Addison); license# 311240
Agreed reprimand of broker license, entered February 5, 2004; Agreed administrative
penalty of $500, entered February 5, 2004; failing to complete mandatory continuing
education hours within the 60-day period provided by 22 TAC §535.92(f)
of the Rules of the Texas Real Estate Commission
Boone, Virginia
Jacqueline
(Weatherford); license# 207326
Revocation of salesperson license, effective February 10, 2004; failing within
a reasonable time to provide information to the Commission in response to
Commission's request for same in connection with an application for renewal
of real estate salesperson license, in violation of 22 TAC §535.91(a)
of the Rules of the Texas Real Estate Commission
Wilson, Gerald
Michael
(Houston); license# 216383
Agreed reprimand of salesperson license, entered February 13, 2004; Agreed
administrative penalty of $250, entered February 13, 2004; failing to complete
mandatory continuing education hours and pay the $200 fee within the 60-day
period provided by 22 TAC §535.92(f) of the Rules of the Texas Real Estate
Commission
Grimes, Harold
E.
(Tyler); license#
Agreed reprimand of approval as a real estate instructor, entered February
13, 2004; Agreed administrative penalty of $1,000, entered February 13, 2004;
failing to teach a course in substantially the same manner represented to
the Commission in the instructor’s manual, in violation of 22 TAC §535.65(d)(2);
failing to grade the course examinations with an unweighted passing score,
in violation of 22 TAC §535.65(e)(2); failing to provide instructor evaluation
forms for completion by students in every class, in violation of 22 TAC §535.65(d)(3);
making a false representation to the Commission that a person had completed
a requirement for course credit pursuant to 22 TAC §535.66(f)(1); aiding
or abetting a person to circumvent a requirement for course credit in violation
of 22 TAC §535.66(f)(2)
Tyler Real
Estate College
(Tyler); license# 533
Agreed revocation of proprietary school accreditation, fully probated for
2 years, effective February 28, 2004; Agreed reprimand of $2,000; making a
false representation to the Commission that a person had completed a requirement
for course credit in violation of 22 TAC §535.66(d)(2); aiding or abetting
a person to circumvent a requirement for course credit in violation of 22
TAC §535.66(d)(3); failing to maintain records of each student enrolled
in any course for a minimum of five years, and failing to retain the full
class file for at least twelve months following the completion of the class,
in violation of 22 TAC §535.65(i)(4); failure to provide instructor evaluation
forms for completion by students in every class, in violation of 22 TAC §535.65(d)(3);
failing to administer final exams consisting of sixty questions with an unweighted
passing score of 70%, in violation of 22 TAC §535.65(e)(2); failing to
teach a course in substantially the same manner represented to the Commission
in the instructor’s manual in violation of 22 TAC §535.65(d)(2);
failing to provide adequate security for the completion of certificates and
letters, in violation of 22 TAC §535.65(i)(3)
Bennett, Rochelle Denea
(San Antonio); license# 468961
Agreed reprimand of salesperson license, entered March 1, 2004; Agreed administrative
penalty of $250, entered March 1, 2004; failing to complete mandatory continuing
education hours and pay the $200 fee within the 60-day period provided by
22 TAC §535.92(f) of the Rules of the Texas Real Estate Commission
Petersen, Mica
Whitman
(Dallas); license# 423931
Agreed reprimand of salesperson license, entered March 4, 2004; Agreed administrative
penalty of $250, entered March 4, 2004; failing within a reasonable time to
provide information to the Commission in response to Commission's request
for same in connection with an application for renewal of real estate salesperson
license, in violation of 22 TAC §535.91(a) of the Rules of the Texas
Real Estate Commission
Williams, Claudia Lynette
(Arlington); license# 445089
Agreed reprimand of broker license, entered March 9, 2004; Agreed administrative
penalty of $250, entered March 9, 2004; failing within a reasonable time to
provide information to the Commission in response to Commission's request
for same in connection with an application for renewal of real estate broker
license, in violation of 22 TAC §535.91(a) of the Rules of the Texas
Real Estate Commission
Sanders, Raymond
Wayne
(Dallas); license# 161738
Agreed reprimand of broker license, entered March 11, 2004; Agreed administrative
penalty of $250, entered March 11, 2004; failing to complete mandatory continuing
education hours and pay the $200 fee within the 60-day period provided by
22 TAC §535.92(f) of the Rules of the Texas Real Estate Commission
Anderson, Robert
Michael
(Rockwall); license# 168751
Revocation of salesperson license, effective March 16, 2004; failing within
a reasonable time to provide information to the Commission in response to
Commission's request for same in connection with an application for renewal
of real estate salesperson license, in violation of 22 TAC §535.91(a)
of the Rules of the Texas Real Estate Commission
Simpson, Carlton
Skinner
(Bandera); license# 279701
Agreed revocation of broker license fully probated until April 30, 2005, effective
March 19, 2004; violation of term and condition of his probationary license
for failure to make all of the payments to repay the Real Estate Recovery
Fund as set forth in the Order of November 7, 2000
Leal, Arthur
III
(Lubbock); license# 463842
Agreed reprimand of salesperson license, entered March 23, 2004; Agreed administrative
penalty of $250, entered March 23, 2004; failing to complete mandatory continuing
education hours and pay the $200 fee within the 60-day period provided by
22 TAC §535.92(f) of the Rules of the Texas Real Estate Commission
Lake, Clayton
Wayne
(Hobson); license# 505618
Revocation of salesperson license, effective March 29, 2004; failing within
a reasonable time to make good a check issued to the Commission and to pay
the processing fee, in violation of §1101.652(a)(4) of the Texas Occupations
Code and §534.2(b) of the Rules of the Texas Real estate Commission
Denkhaus, Terry
(Frisco); license# 470210
Revocation of salesperson license, effective March 29, 2004; failing to complete
mandatory continuing education hours and pay the $200 fee within the 60-day
period provided by 22 TAC §535.92(f) of the Rules of the Texas Real Estate
Commission
The Texas Real Estate Commission adopted a rule at its April 19, 2004 meeting to increase core inspection classroom hours required to become licensed as a Professional Real Estate Inspector through the "alternative education" method effective January 1, 2005. This method allows one to apply for a Professional Real Estate Inspector license without practical experience by completing a certain number of core inspection classroom hours (where no experience in the industry is required). Currently, the requirement is 188 core inspection classroom hours, 8 of which must be in the Standards of Practice and 20 hours of course credit each in structural, mechanical (including appliances, plumbing, and HVAC components) and electrical systems found in improvements to real property.
The Commissioners voted to revise the proposed rule to allow 10 percent of the total time required on any of the topics to be spent doing onsite fieldwork. The time allotted to the onsite fieldwork can not include travel time to the site.
The revisions replace the current
classroom hours requirement of 20 hours of course credit each in structural,
mechanical and electrical systems with 320 additional hours in specific core
inspection courses as defined in the rules. Effective January 1, 2005, persons
applying under the "alternative education" method must complete a
total of 448 Core inspection hours. The breakdown of the additional 320 hours,
including required courses, subjects and subtopics is detailed in the rules
which are posted on the TREC website.
DON’T FORGET: You must still renew your license even if you choose to be inactive.
Got A Question About A Relocation Company?
Through a link maintained on the TREC web site, licensees may directly access
The Real Estate Coalition for Cooperative Business Practices (the Coalition)
of the
Employee Relocation Council
by clicking on “The Interchange” on the Coalition’s website
at
http://coalition.erc.org
Licensees may raise concerns about their dealings with a
relocation company and send a message to the appropriate company for response.
Calendar of Events
Commission
Meetings: June 7, 2004, August 9, 2004 and October 18, 2004
Broker-Lawyer
Committee Meetings: August 5, 2004
Inspector Committee Meetings: May 14, 2004
Web site: http://www.trec.state.tx.us
Phone: (800) 250-TREC (8732) or (512) 459-6544
Official publication of the
Texas Real Estate Commission
Volume 15, Number 2
May 2004
Rick Perry
Governor
Commission Members:
| John
Walton, Chairman |
Louise E. Hull,
Vice-Chair VICTORIA |
James N. Austin, Jr.,
Secretary FORT WORTH |
Mary Frances Burleson AUBREY |
Ramon "Mick" Cantu HOUSTON |
William H. Flores SUGAR LAND |
Lawrence D. Jokl BROWNSVILLE |
Paul H. Jordan GEORGETOWN |
Elizabeth Leal EL PASO |
TREC Administrator
Wayne Thorburn
Desktop Publisher
Patricia Holder
The TRECAdvisor (ISSN 1047-4579) is published by the Texas Real Estate Commission (TREC) as an educational service to licensees in the state of Texas. The purpose of the newsletter is to promote a better understanding of the Real Estate License Act and to inform all licensees of changes affecting laws and practices in the real estate industry. The TRECAdvisor is funded through legislative appropriations and subscriptions collected from TREC licensees. The official text of TREC rules is filed with the Office of the Secretary of State, Texas Register. TREC encourages reproduction of this newsletter with the appropriate acknowledgments. Subscriptions are available for $4.00 for two years. Single issues are $1.00. To order a subscription or a single issue write to TRECAdvisor, Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188. For information regarding TREC, contact:
Texas Real Estate Commission
P.O. Box 12188
Austin, Texas 78711-2188
(512) 459-6544 or (800) 250-TREC
http://www.trec.state.tx.us