An association of real estate licensees who agree to the pooling of listings in known as the:
"This guidance document is advisory in nature but is binding on an agency until amended by such agency. A guidance document does not include internal procedural documents that only affect the internal operations of the agency and does not impose additional requirements or penalties on regulated parties or include confidential information or rules and regulations made in accordance with the Administrative Procedure Act. If you believe that this guidance document imposes additional requirements or penalties on regulated parties, you may request a review of the document. " Show The above disclaimer applies to all Policies and Interpretations listed herein. 1. Trust Account Examination Advance Notice Policy to Cease The Real Estate Commissions' policy of giving brokers advance notice of trust account examinations practice will cease after notice to brokers through an article in the Commission Comment. Adopted August 1, 1990 2. Names of Salespeople Used in Names of Companies The use of licensed salesperson's names in the trade name or corporation name of a real estate company is allowed. Adopted May 22-23, 1991 3. Out-of-State Appraiser Courses Used Toward A clarification and amendment to the Real Estate Commission's policy of honoring the Appraiser Board's determinations regarding Appraiser continuing education. The Nebraska Real Estate Appraiser Board accepts courses approved by other Appraiser Licensing Bodies when taken out-of-state. The Real Estate Commission will honor the Nebraska Appraiser Board's position in this regard as well, by accepting approved Appraiser continuing education taken out-of state for Nebraska Salesperson's and Broker's continuing education credit. Adopted July 24-25, 1991 4. Commission Staff Members Acting as Because of concerns over the Political Accountability Act, issues relating to potential conflicts of interest and the imperative that the programs be perceived as independent from the Real Estate Commission, it was the consensus of the Members of the Commission that Commission Staff Members should not act as private continuing education providers. Adopted January 14-15, 1992 5. Records Retention Policy Non-active records will be retained for fourteen years or under, unless otherwise required by State Policy. Adopted February 12, 1992 6. Limit on Unused Examination Fees Unused examination fees are valid for one year from date of receipt. (This is an extension of previous undated Policy making applications for original licensure and applicable fees only valid for one year from date of receipt.) Adopted March 10, 1992 7. Commission Travel Policy The Commission has had a long-standing policy with regard to out-of-state travel which is based on the philosophy that Commissioners and Staff need to be informed and up-to-date on real estate regulatory matters. Involvement in National organizations and interaction with other states' real estate regulatory bodies allows for the research and enhancement of educational opportunities approved for use by licensees, especially in the continuing education area; allows for the negotiation of reciprocity regarding educational offerings, both pre-license and continuing education leading to negotiation of reciprocal licensing agreements; and allows for education of Commissioners and Staff that has allowed the Nebraska Real Estate Commission to be on the leading edge of the real estate regulatory movement and, therefore, to better serve the citizenry of Nebraska. Authorization for travel must be approved by the Commission. Such authorization for travel of Commission Members and/or Staff is based on the educational value which can be accrued from attendance at the meeting; on the pertinence of the subject, or subjects, to be covered at the meeting such as the recent issue regarding Federal legislation dealing with Appraisers; and on the economic condition of the Commission at the time. All of these factors are considered in determining if the meeting should be attended at all, and, if so, which person or persons should attend in order to provide maximum benefit to Nebraska. Upon return from any authorized out-of-state travel, a Report will be given by the Commission Member(s) and/or Staff Member(s) involved in the conference or meeting at the next meeting of the Commission. This Policy supersedes previous policy. Adopted March 10, 1992 8. Branch Office Definition of "Temporary Basis" NAC 299 Chapter 2-011 refers to a "Model Home" utilized as an office on a "temporary basis" as not being considered a branch office. "Temporary basis" will be interpreted as two to three years. Adopted April 21, 1992 9. Fully Completed and Signed Renewal Policy Renewal applications and fees will be returned if all requested information is not supplied and/or the renewal form is not signed by the applicant. Adopted April 21, 1992 10. Direct Deposits to Trust Account Policy Direct deposits may be made into a Real Estate Trust Account maintained by a broker under the Nebraska Real Estate License Act and Rules and Regulations of the Commission as long as a receipt is sent to the broker with the remitter's name on it so that a paper audit trail exists. Adopted April 21, 1992 11. Transfer of License Policy Due to a Rule change effective on September 21, 1992, licensees will no longer be required to carry their pocket card when conducting business. The transfer process will be handled in the following manner: When all materials required to transfer are mailed under one cover, requesting an immediate transfer, the transfer is effective as of postmark, if no postmark is visible, then the effective date will be the date of the latter letter included, i.e. that of the licensee requesting their previous broker return their wall certificate to the Real Estate Commission or that of the new broker wishing to hire the licensee. If materials are hand carried into the office, the transfer, if an immediate transfer request, is effective as of Commission date stamp. In the event that transfer materials are incomplete, the transfer will not be effective until all materials are received and date stamped in the Commission Office. Until complete, the licensee will be placed on inactive status and no activities requiring a license may be conducted until the transfer is completed. Business must be suspended until the transfer is complete. Adopted April 21, 1992 12. Trust Account Records Location Matter Brokers with branch offices who maintain a centralized bookkeeping system will be allowed to maintain transactions files at the branch offices in which the transaction occurred. Dependent on the examiner's judgment, the broker would be responsible for supplying the files to the examiner at the centralized location with a reasonable, non-audit risk, time-frame or the broker would be responsible for providing photocopies of documents needed from the centralized location which the examiner would need at the other location. Adopted June 16-17, 1992 13. Return to Work/Light Duty Policy This policy, as recommended from the Office of Risk Management, is a part of compliance with the Americans with Disabilities Act. (Copy available from Commission Office.) Adopted June 16-17, 1992 14. Clarification of Third Party Closing Fee Disclosure In all real estate transactions, the buyer and seller must: 1) authorize, in writing, the use of the third party closing agent; 2) authorize, in writing, the transfer of funds from the broker to the third party closing agent; and 3) agree, in writing, as to who will pay the closing fee, if any, or how the closing fee, if any, will be split between buyer and seller. The actual fee does not need to be disclosed at this time, but must be disclosed as a part of estimating the closing costs. Adopted June 16-17, 1992 15. Commission Smoking Policy Smoke-free Commission Meetings will be held by the Nebraska Real Estate Commission, with smoking allowed during recesses in designated smoking areas of the building where the Meeting is being held. Adopted October 27, 1993 16. Interpretation of 81-885.24(14) and (15) "81-885.24(14) Negotiating a sale, exchange, listing, or lease of real estate directly with an owner or lessor if he or she knows that such owner has a written outstanding listing contract in connection with such property granting an exclusive agency or an exclusive right to sell to another broker or negotiating directly with an owner to withdraw from or break such a listing contract for the purpose of substituting, in lieu thereof, a new listing contract; 81-885.24(15) Discussing or soliciting a discussion of, with an owner of a property which is exclusively listed with another broker, the terms upon which the broker would accept a future listing upon the expiration of the present listing unless the owner initiates the discussion;" Neb. Rev. Stat. 81-885.24(14) sets out two prohibitions. Taking the second one first, it prohibits licensees from negotiating directly with an owner to withdraw from or break an exclusive agency or exclusive right to sell listing contract for the purpose of substituting, in lieu thereof, a new listing contract. The first part of (14) also prohibits certain activity which, as it relates to "listings", is modified somewhat by (15). Under (15), a licensee can discuss with an owner whose property is exclusively listed with another broker the terms upon which the broker would accept a future listing upon the expiration of the present listing, if the owner initiates the discussion. The Commission has not distinguished between expiration, termination or cancellation previously. Except for the proviso in (15), licensees cannot, in the first part of Neb. Rev. Stat. Section 81-885.24(14), negotiate a sale, exchange, listing, or lease of real estate directly with an owner or lessor if the licensee knows that such owner has a written outstanding listing contract in connection with the property, which contract grants an exclusive agency or exclusive right to sell to another broker. Reaffirmed February 28, 1995 17. Clarification of "Financial Statement" Financial statements, as referenced in the Membership Campground Act, shall be prepared in accordance with generally-accepted accounting principles and shall include:
Adopted September 15, 1992 18. Confidentiality of Investigative Records WHEREAS, it is the public policy of the State of Nebraska to maintain the confidentiality of public records pursuant to NEB. REV. STAT. ' 84-712.05, including, under subsection (4) work product of an attorney and public body and attorney-client communications and, under subsection (5), investigative records, including investigations and citizen complaints or inquiries; THEREFORE, be it resolved that it shall be the policy of the Commission to:
BE IT FURTHER RESOLVED, that the Director, Deputy Directors, and staff of the Commission are instructed and authorized to assert any one or all of these protections whenever in their opinion or on the advice of counsel, the respective protection reasonably appears to be applicable. BE IT FURTHER RESOLVED, that the Commission retains the authority to adjudicate, on a case by case basis, the applicability of any protection under the law or to waive any applicable protection. Adopted April 23, 1996 19. Brokerage Relationships Pamphlets Question: If a licensee is acting as a common law agent, does the Agency Relationships Act require that licensee to provide a Brokerage Relationships pamphlet to a customer during or following the first substantial contact as soon as practicable? Answer: In a review of the Agency Relationships statutes, specifically Neb. Rev. Stat. ' 76-2416, it has been determined that those licensees operating under a common law agency agreement are not required to provide a customer, who is in most instances a prospective tenant, the Brokerage Relationships pamphlet. The above cited section removes the common law agent from the duties and responsibilities of the provisions of the Act which would include the provision of the pamphlet to customers/tenants or prospective tenants. With regard to landlords - when offering services to a landlord, the Brokerage Relationships pamphlet must be completed appropriately and signed because the licensee has not yet entered into the common law agency agreement and, therefore, is still required under the Act to provide the pamphlet and make the other required disclosures as set out in Neb. Rev. Stat. ' 76-2421. In essence, managers of properties who enter into lease agreements on their owners' behalf, whether they manage farms, ranches, apartments, single-family residences, commercial space, etc., do not have to provide the Brokerage Relationships pamphlet to prospective tenants. Adopted November 13, 1996 20. Interpretation of 299 N.A.C. 5-003.10 and 5-003.11 RESOLVED, It is the interpretation of the Nebraska Real Estate Commission that Title 299 N.A.C. '' 5-003.10 and 5-003.11 require a limited agent to make a written disclosure to his or her client of the categories of costs and estimated costs the client will be expected to pay at closing but do not require a limited agent to make such written disclosures to a customer. Said interpretation based on Neb. Rev. Stat. 76-2418(3)(a). Adopted March 19, 1997 21. Commission Procedures for Implementation Suspension The procedures described in the following paragraphs are the same as those required of a licensee whose license is suspended after a disciplinary hearing. Upon notification by any of the certifying authorities of non-compliance by a broker, associate broker or salesperson licensee, a notice will be sent by certified mail, informing said licensee that, effective ten working days after the date of the certification to the Commission, his or her license is suspended and what to provide for reinstatement. Additional information, as applicable to the licensee, will also be included as indicated in the following:
Reinstatement The Commission will not impose any special reinstatement charges authorized by LB-752. It will only impose charges required of any standard reinstatement. The procedures described below are the least restrictive reinstatement or renewal procedure applicable to license suspension. In all cases of suspension under the Act, the non-compliant licensee will be informed that, during suspension, if a renewal of license occurs, he or she will be expected to renew, even though on suspension, if he or she wishes to retain the entitlement to a license. The licensee will also be informed that if he or she returns to the same position as that held prior to the suspension, there will be no additional fees assessed, however, required documents, as applicable, will be needed. However, if he or she, when compliance is achieved, decides to change companies or status, a transfer fee, as applicable at the time, will be required along with any documents required. In all cases of suspension under the Act, any continuing education needed to renew will still be required. If the licensee chooses not to acquire the continuing education or to waive it, but renews the license, the license will be transferred to renewed inactive and a fee will be required to transfer to active upon compliance, along with any required documents. Errors and Omissions Insurance will need to be retained prior to being able to renew during a suspension if license was active when the suspension commenced, unless the licensee chooses to renew inactive during the suspension period. If a licensee suspended under the Act cancels his or her Errors and Omissions Insurance while under suspension, he or she will be considered inactive from the date of cancellation and upon coming into compliance. In both cases, the licensee will be required to pay transfer fees, provide required documents and acquire errors and omissions insurance before activation. Adopted August 19, 1997 22. Resolution of the State Real Estate Commission IT APPEARING before the State Real Estate Commission of the State of Nebraska that it would be in the best interest of the Commission if a policy is adopted outlining the specific costs the party or parties against whom a final decision is rendered shall pay pursuant to Title 305, N.A.C., Chapter 4-007.05, and Neb. Rev. Stat. ' 84-914(1) (Reissue 1994). BE IT HEREIN RESOLVED that the costs the party or parties against whom a final decision is rendered shall pay, pursuant to Title 305, N.A.C., Chapter 4-007.05 and Neb. Rev. Stat. ' 84-914(1) (Reissue 1994), any and all charges for an appearance by the court reporter and any and all witness fees, including mileage and the cost of serving any witness. BE IT FURTHER RESOLVED that the Commission shall determine the time frame for payment of the costs on a case-by-case basis, however, in all cases the failure to pay the costs pursuant to the payment schedule shall result in the automatic suspension of the licensee's real estate license, if the licensee was the party against whom a final decision is rendered. EFFECTIVE JANUARY 1, 1998. Adopted October 30, 1997 23. Resolution Authorizing Hearing Officers BE IT RESOLVED THAT, in accordance with Neb. Rev. Stat. ' 84-913.01 and Title 305 NAC Chapters 4-001.02G and 4-005, the State Real Estate Commission authorizes the appointment of a hearing officer to conduct any prehearing conferences, hearings on non-dispositive motions including discovery issues, and other matters preliminary to an evidentiary hearing, in the following circumstances: a) when any party requests a prehearing conference; b) when a non-dispositive motion is filed, or when any other prehearing matters must be resolved; and, c) when any motion to compel, prevent or limit discovery is filed. BE IT FURTHER RESOLVED THAT, in the event the Chairperson of the Commission is unavailable to sign the Order Appointing Hearing Officer, any member of the Commission is authorized to sign the Order in accordance with the provisions of this Resolution. BE IT FURTHER RESOLVED THAT nothing in this Resolution shall prevent the Chairperson from appointing any qualified person as a hearing officer for any reason provided by law. Adopted January 21, 1998 24. Procedural Guidelines for Brokers: USDA Wire Transfer Program Since there are delays between broker notification of the process date of payments and the actual wire transfer deposit date in the bank where a broker=s trust account is located and, since some banks have indicated they will not notify the broker of the deposit on the day of transfer, the Commission provides the following guidelines to determine date of deposit and general guidance regarding posting and check issuance.
Adopted March 18, 1998 25. Policy Establishing December Licensing Examinations Until altered by vote of the Real Estate Commission, the Real Estate Commission orders, under Title 299 NAC 1-005, that real estate salesperson and broker examinations also be administered on the customary days in the month of December except that such examinations shall not be administered from December 24 through December 31. Adopted April 22, 1998 26. Guidelines for Storage of The Nebraska Real Estate Commission was asked if the records relating to a real estate transaction, which are required to be maintained by real estate brokers under 299 NAC 3-001 for five years following the consummation of the transaction, could be stored in a medium other than the original paper format or, in the case of computerized bookkeeping systems, on computer. After due consideration, the Nebraska Real Estate Commission establishes the following guidelines for storage of the trust account and transaction records on alternative media, e.g. compact disk, optical disk, microfilm, etc.:
Adopted April 22, 1998 27. Policy on Follow-Up Trust Account Examinations When a Trust Account Examiner issues the designated broker a deficiency for failing to maintain a proper bookkeeping system, for situations such as failing to maintain a General Ledger and/or individual Sub-ledgers, the Deputy Director for Enforcement will automatically request a Trust Account Examiner to perform a follow-up trust account examination. Dependent upon the amount of activity within the designated broker's trust account, the follow-up trust account examination will normally be conducted within 15 days following receipt of the next monthly bank statement by the designated broker. The designated broker may, on their own initiative, supply the Commission with photocopies of the correctly-posted General Ledger and/or individual Sub-ledgers prior to the follow-up trust account examination. The Deputy Director for Enforcement will determine whether doing so eliminates the necessity for an immediate follow-up trust account examination. Adopted March 24, 1999 28. Policy on Attorney Exemption to the The Nebraska Real Estate License Act provides that the requirements of the Act and the requirement to obtain a license shall not apply to a licensed attorney when the attorney is performing his or her duties as such attorney at law. The Commission interprets this exemption to mean that the attorney is exempt from the Act if the attorney is acting as legal counsel for a party to a transaction. If the attorney is acting as a broker or salesperson in a transaction, the attorney is not exempt from the Act. For example, actively listing or selling real property would cause the attorney=s activities to be governed by the Act. An attorney acting as legal counsel to a buyer, tenant, seller, or landlord in a transaction would not be considered a designated broker under the Agency Relationships Statutes and, therefore, disclosure must be made to clients of an attorney, unless said attorney is acting as a designated broker. Adopted July 25, 2000 29. Deadline for Agenda Items Policy No new Agenda Items for a scheduled meeting of the Nebraska Real Estate Commission shall be added to the Agenda within three business days prior to the opening of the meeting; provided, emergency items may be added at any time by a vote of the Commission, and staff may add Stipulation and Consent Orders and Information Matters to the Agenda up to twenty-four hours prior to the opening of the meeting, in accordance with the Nebraska Public Meetings statutes. Adopted May 22-23, 2001 30. Guidelines for Continuing Education Activities Continuing education providers must follow the procedures for approval of providers, activities, and instructors outlined in the Nebraska Real Estate License Act and Title 299 NAC Chapter 7. The following subject matter is generally considered acceptable for continuing education activities, but providers are encouraged to create new activities to meet the changing demands of the real estate market. Addressing listed subject matter in an activity does not guarantee approval by the Nebraska Real Estate Commission. Approvable subject matter includes, but is not limited to, the following:
Adopted November 15, 2001 31. Use of Unlicensed Persons by Licensees Licensees, both brokers and salespersons, often use unlicensed persons, either employed or contracted, to perform various tasks related to a real estate transaction which do not require a license. Such persons, for example, are used as personal assistants, clerical support staff, closing secretaries, etc. The Nebraska Real Estate License Act prohibits unlicensed persons from negotiating, listing, or selling real property. It is, therefore, important for employing brokers and other licensees using such persons to carefully restrict the activities of such persons so that allegations of wrongdoing under the License Act or Rules can be avoided. Licensees should not share commissions with unlicensed persons acting as assistants, clerical staff, closing secretaries, etc. The temptation for such unlicensed persons, in such situations, to go beyond what they can do and negotiate or take part in other prohibited activities is greatly increased when their compensation is based on the successful completion of the sale. In order to provide guidance to licensees with regard to which activities related to a real estate transaction unlicensed persons can and cannot perform, the Commission establishes the following Policy: Activities which can be performed by unlicensed persons who, for example, act as personal assistants, clerical support staff, closing secretaries, etc., include, but are not necessarily limited to:
Activities which cannot be performed by unlicensed persons who, for example, act as personal assistants, clerical support staff, closing secretaries, etc., include, but are not necessarily limited to:
Employing brokers, whether they are employing unlicensed persons or whether licensees under their supervision are using unlicensed persons as personal assistants or the like, are responsible for assuring that such unlicensed persons are not involved in activities which require a license and/or activities which violate this policy. Brokers should establish guidelines for the use of unlicensed persons and procedures for monitoring their activities. It is the responsibility of the employing broker to assure that unlicensed persons, either directly employed or contracted, or employed or contracted by licensees under his or her supervision, are not acting improperly. This policy does not include unlicensed persons who are acting under the exemption related to management of property as set forth in 81-885.04(4). Adopted February 12, 1992 32. GUIDELINE FOR ORIGINAL APPLICANTS If an individual who files an application for a Nebraska Real Estate license, or a potential applicant who has requested a preliminary opinion as to whether they may be licensed, has been convicted of forgery, embezzlement, obtaining money under false pretenses, larceny, extortion, conspiracy to defraud, or any other similar offense or offenses or has been convicted of a felony or a crime involving moral turpitude, then he or she must appear before the Commission before being allowed to sit for the examination. If an applicant has a pattern of any other criminal conviction(s), other than minor traffic violation(s), Commission staff may exercise the discretion to require the applicant to appear before the Commission before the applicant may sit for the examination or be approved for licensure. An applicant who has filed an application and is required to appear before the Commission may choose either a formal or an informal appearance before the Commission. Informal appearances by applicants will require that the applicant's Nebraska State Patrol criminal background check and self-reported criminal history be made available to the Commission. A potential applicant may request an informal special appearance prior to applying for license by making such request in writing and paying a preliminary application fee in an amount approved by the Commission. Such individuals shall be required to self-report any criminal history. Approval of any potential applicant for licensure shall be subject to re-consideration if the subsequent criminal background check provided by the Nebraska State Patrol reveals significant criminal history of a nature that would be grounds for denial of license under the license act. Commission staff may also submit, or request the applicant or potential applicant to submit, such other materials as may be relevant at the informal special appearance. If an application for license, or an issuance of license, is denied by staff or denied by the Commission following an informal appearance, then in either case the applicant is entitled to request a formal hearing as allowed by statute and regulation. If the applicant or potential applicant is not approved for licensure the Commission may advise the individual of any action the individual may take to remedy the disqualification. Any individual approved by the Commission to sit for an examination after an appearance does not have to reappear before the Commission regarding the same issue(s) when applying for subsequent licensure, unless specifically required to do so by the Commission as a part of it original decision. Each application shall be reviewed on a case-by-case basis; however, the Commission adopts the following as guidelines for denying a license: 1. Unless extraordinary circumstances are present in a specific situation, the application to sit for the examination or issuance of a license will be denied if the applicant has been convicted of a felony violent crime(s) felony financial crime(s), or crimes involving moral turpitude. 2. Unless extraordinary circumstances are present in a specific situation, the application to sit for examination or issuance of a license will be denied if the applicant has not completed his or her sentence, his or her probation, or made restitution, if any was ordered. The Commission recommends the applicant authorize his or her probation or parole officer(s) to discuss applicant’s performance during the period of supervision with Commission staff. For purposes of this section the requirement of driving with an ignition interlock device, absent criminal supervision on probation, parole, or other similar supervised release or diversion programs, shall not be considered to be part of an applicant’s sentence required to be completed before an applicant can be allowed to sit for the exam absent extraordinary circumstances. The required use of an ignition interlock device may be considered an aggravating or extenuating circumstance of the crime when reviewing the applicant as provided in 3.c. below. 3. Other information the Commission considers relevant and will consider in granting approval to sit for the examination or issuance of license includes, but may not be limited to, the following:
33. GUIDELINE FOR ORIGINAL APPLICANTS WITH HISTORY OF If an applicant for an examination or issuance of a Nebraska Real Estate license has had disciplinary action, other than a censure, taken against his or her license, within the last five years, in another regulatory jurisdiction, said applicant shall appear before the Commission prior to the application being granted. If, however, the applicant has had disciplinary action, but is now in good standing with the regulatory jurisdiction, said applicant need not appear before the Commission. If the applicant is to appear before the Commission, the applicant is allowed to choose whether the appearance is formal or informal. Informal appearances may be made by or through a written submission of materials or other methods as determined by Commission staff. If approval to sit for the examination or for issuance of a license is denied by staff or following an informal special appearance, applicants are entitled, by law, to file a Petition for Review. An individual who the Commission has approved to sit for the examination after an appearance before it does not have to reappear before the Commission regarding the same issue(s) when applying for subsequent licensure, unless specifically required to do so by the Commission as a part of its original decision. Each application shall be reviewed on a case-by-case basis, however, the Commission adopts the following as guidelines for denying the license:
Adopted January 24, 2002 34. DOCUMENTATION REQUIRED OF FOREIGN HIGH SCHOOL GRADUATES Applicants with foreign high school education must meet the same academic requirements as applicants who have received their high school education in the United States. To be used as a basis for issuance of a real estate salesperson or broker license, documentation must be submitted indicating that the foreign high school degree is at least the equivalent of a high school degree granted in the United States. The high school degree must be determined equivalent by one of the following documents: 1) A transcript from a United States college or university that indicates that the individual’s high school education was sufficient to allow the individual to be admitted into a post-secondary education program. OR 2) Document-by-Document Evaluation Report verifying the equivalence of the foreign high school graduate’s education to that of an American high school education. The Document Evaluation must be conducted through an education credential evaluation service that holds membership in the National Association of Credential Evaluation Services (NACES). Adopted November 18, 2004 35. NEW COMMISSIONER ORIENTATION Before participating in or voting at Nebraska Real Estate Commission Meetings newly appointed Commissioners, regardless of experience or training, shall participate in and complete a Commissioner Orientation Session. The Commissioner Orientation Session shall include but not be limited to: 1. Nebraska Real Estate License Law This Policy shall not apply to previously appointed Commissioners as of the date of initial adoption. Adopted October 15, 2009 36. Guidelines for Review of Lawsuit Information Nebraska Real Estate Commission Salesperson and Broker initial license and renewal applications require the reporting of the licensees’ involvement as a party to any lawsuit. In reviewing lawsuit information the Commission shall use the following criteria for evaluating the information provided: 1. Single or isolated instances of bankruptcies or debt collection actions shall not be considered grounds for possible disciplinary action against a licensee. 2. Lawsuits unrelated to real estate matters, the financial dealings of the licensee, or the general character honesty and integrity of the licensee for honesty and fair dealings shall not be considered grounds for possible disciplinary action against a licensee. 3. A repeated or consistent pattern of bankruptcies or debt collection actions may be considered grounds for further investigation and possible disciplinary action against a licensee. 4. Lawsuits relating to real estate matters, the financial dealings of the licensee, or the general character and integrity of the licensee for honesty and fair dealings may be considered grounds for further investigation and possible disciplinary action against a licensee. 5. Lawsuits which may be related to the endangerment of individual welfare or public safety by a licensee may be considered grounds for further investigation and possible disciplinary action against a licensee. Adopted June 24, 2010 37. Guidelines for Compensation of Salespersons and Associate Brokers Doing Business as a Professional Corporation or a Professional LLC Neb. Rev. Stat. 81-885.24(18) specifically provides that it is an unfair trade practice subject to disciplinary action to provide any form of compensation to any unlicensed person performing the services of a broker, associate broker or salesperson. For purposes of interpretation of 81-885.24(18) it shall not be an unfair trade practice for a broker to provide compensation to: 1. An individual holding a Nebraska broker’s or salesperson license when all services of a broker, associate broker or salesperson for which the compensation is being rendered were provided. 2. A professional corporation in good standing with the Secretary of State’s office, provided that the shareholders, officers (with the exception of the secretary and the assistant secretary) directors, and any employees or agents of the professional corporation that perform the services of a broker, associate broker, or salesperson hold an active broker or salesperson's license from the Nebraska Real Estate Commission at the time all services for which the compensation is being rendered were provided. 3. A professional limited liability company in good standing with the Secretary of State’s office, provided that all members, managers and any employees or agents of the limited liability company that perform the services of a broker, associate broker, or salesperson hold an active broker or salesperson's license from the Nebraska Real Estate Commission at the time all services for which the compensation is being rendered were provided. Adopted August 19, 2010 38. First Substantial Contact Chapter 76. Real Property Article 24, Agency Relationships SS 76-2421 (1) contains two phrases (in bold italics below) that the Nebraska Real Estate Commission believes need some clarification to guide the conduct of real estate licensees in their practice with clients and customers, to assist designated brokers in their supervision of their affiliated licensees, and to help real estate trainers formulate and implement practical, meaningful agency disclosure training. Section 76-2421 (1) requires that “At the earliest practicable opportunity during or following first substantial contact [emphasis added] with a seller, landlord, buyer, or tenant . . . the licensee who is offering brokerage services to that person or who is providing brokerage services for that property shall” provide that person, whether a client or customer, with a written copy of the current brokerage disclosure pamphlet and disclose in writing to that person the types of brokerage services offered or which party the licensee is representing. Although, as has been said in Commission Comment before (see Winter 2000 issue), “earliest practicable opportunity” is somewhat subjective and “depends on the circumstances of each situation,” the Commission interprets “earliest practicable opportunity” to mean that the required brokerage disclosure pamphlet should be presented and signed and the disclosure of the types of brokerage services offered or of which party the licensee is representing should be made BEFORE the licensee provides “specific assistance” to that client or customer. IF the written disclosure is not made before the specific assistance is provided, it must be made immediately thereafter. Specific assistance means eliciting or accepting compromising information about a potential or actual client’s or customer's real estate needs. Compromising information is information that would reduce, impair or erode that party’s bargaining power in an arm’s length negotiation. Compromising information may include but is not necessarily limited to:
Specific assistance shall also mean showing a specific property or properties to a specific buyer by pre-arrangement. Specific assistance MAY be provided at an open house if compromising information is elicited or accepted from the buyer at the open house, but specific assistance to a buyer WILL be deemed to be provided when there is a pre-arranged showing of a particular property or properties to that buyer. Specific assistance may be offered anywhere and not necessarily at a formal showing or appointment, so it is important that the required disclosures be made BEFORE any compromising information is elicited or accepted, even if the setting is an open house or a public place. It is not the venue, but rather the content of the interchange that determines if specific assistance has been provided. However it is possible to enumerate some things that are not generally considered to be specific assistance within the meaning of this policy interpretation. In the absence of the items listed above, specific assistance will not be considered to include:
Two useful criteria can be assessed in determining whether specific assistance has been provided:
The point at which the licensee first provides specific assistance will be deemed to be “first substantial contact” under this section. On a related matter, the Commission will deem an electronic copy of the current brokerage disclosure language that has been appropriately checked and completed by the licensee and which has been emailed to the person to whom disclosure is being made to be in compliance with Section 76-2421 (1) (a), provided that the recipient client or customer sends the licensee an email response acknowledging receipt of the disclosure language. Adopted January 17, 2013 39. Use of Unlicensed Employees of Owners of Real Estate Section 81-885.02 of the Nebraska Real Estate License Act (the “Act”) prohibits unlicensed persons from, among other acts, negotiating or attempting to negotiate the listing or sale of any real estate or engaging in other activities requiring a license as defined by the Act (81-885.01 (2) & (6) . It is, therefore, important for owners of real estate to carefully restrict the activities of their unlicensed Employees so that allegations of wrongdoing under the License Act or the Rules can be avoided. The following section of the Act supports the Commission’s Policy and Interpretation: 81.885.04 (1) of the Nebraska Real Estate License Act contains an exception from the Act for:
The Act provides exemptions for the regular Employees of the owner of real estate in general with respect to property owned by the Employees’ employer when such acts are incidental to the sale of the real estate and are performed in the regular course of the sale of the property except that the acts requiring a real estate license shall not be performed in connection with the vocation of selling or leasing any real estate. The Commission interprets this language to mean that the Employee of the owner of property is exempt from the Act only to the extent that he or she may perform acts incidental to the sale of the real estate and provided that such acts are not a regular, recurring aspect of the Employee’s vocation (i.e. daily activities and responsibilities). For the purpose of this Policy and Interpretation: Pursuant to this Policy and Interpretation, activities which can be performed by unlicensed Employees of Owners include, but are not necessarily limited to: Pursuant to this Policy and Interpretation, activities which can be performed by unlicensed Employees of owners of property on an occasional basis and not as part of the Employee’s regular, recurring duties or as a vocation include: Activities which cannot be performed by the unlicensed Employees of owners of property include but are not necessarily limited to: In compliance with 81-885.02, the owner’s Employee can receive no separate compensation for activities performed consistent with this NREC Policy and Interpretation other than his or her normal hourly wage or salary compensation as an Employee of the Owner. There can be no additional compensation in the form of a percentage of commission, bonus (either percentage or flat), referral fee or other compensation or thing of value that is calculated on the sale price of the property or is contingent upon the sale of the property as a result of Employee’s activities permitted under this Policy and Interpretation. It is the responsibility of the Owner to assure that his/her/its unlicensed Employees are under his or her supervision, and are not acting improperly. If the Owner’s business entails the regular sale or lease of owner’s real estate, Owners should establish guidelines for the use of their unlicensed Employees and procedures for monitoring their activities. This policy does not include unlicensed persons who are acting under the exemption related to management of property as set out in 81-885.04(4). Adopted September 26, 2014 40. Coming Soon Listings The Nebraska Real Estate Commission is receiving an increasing number of calls and inquiries regarding the rules for advertising a property represented as “coming soon,” where there is a listing for the property but it is not yet being publicly marketed or shown. There are no specific statutes or regulations on the use of “coming soon” advertisements, but the general rules of advertising apply:
Also applicable are the unfair trade practices statutes (Neb. Rev. Stat. §81-885.24)
Furthermore, if an offer is received when a property is on coming soon status the seller should be informed that there is a pending offer or offers, and asked if they want to remove the property from coming soon status and make it an active listing at which time the agent should inform the offeror to resubmit their offer when the property is no longer coming soon and is in fact on the market. While permissible, the use of “coming soon” advertising has potential to give rise to violations of the act. The proper use of “coming soon” advertising would be a situation where a listing agreement has been entered into but the property or owner is not yet ready for showings, perhaps due to needed clean up or repairs, or personal matters or events that keep the owner from wanting to show the property immediately. The improper use would be using the “coming soon” advertising to limit the showing of the property to preferred buyers, or the exclusion of certain buyers, this could lead to various violations of the license act, which would include but not be limited to:
42. Procedures and Guidelines for Marketing an Equitable Interest in Real Property LB892 (2022) Codified at Neb. Rev. Stat. §81-885.02, provides that the definition of brokerage activity requiring a real estate license pursuant to §81-885.03(1) includes the marketing of an equitable interest in a contract for the purchase of real property for a profit, often referred to as wholesaling. This policy and interpretation provides guidance related to compliance with the license act for licensees who perform these services. For purposes of this policy and interpretation the title owner of the property shall be referred to as the owner. The wholesaler, for agency purposes, shall be considered the seller, and the licensee assisting the wholesaler in marketing the property the seller’s agent. The owner shall be in a customer only relationship with the licensee assisting in marketing the equitable interest the wholesaler has in the owner’s property. License Law, Agency and disclosure requirements must be complied with as outlined below. 1. Neb. Rev. Stat. §76-2421(1) requires written agency disclosure to be provided at the first substantial contact with a seller, landlord, buyer or tenant. Acting as a seller’s agent on behalf of a wholesaler for the purpose of publicly marketing a contractual interest in an owner’s real property shall be considered a substantial contact with the owner, requiring agency disclosure unless the owner is already represented by an agent. 2. The agency disclosure to the wholesaler should be disclosed as offering services as a “Limited Seller’s Agent”. The agency disclosure to the owner and any buyers should be marked as “Customer Only”. 3. The required Assignable Contract Addendum to the agency disclosure must be signed by the unrepresented title owner as customer. The owner must indicate that they are aware that the equitable interest is being marketed for a profit by the wholesaler, and the owner will not be entitled to any of that profit unless the purchase agreement with the wholesaler specifically provides otherwise. 4. The agency disclosure form and required Assignable Contract Addendum must be signed by any unrepresented buyer or potential buyer the agent marketing the contractual interest has substantial contact with. 5. Marketing a property without the Assignable Contract Addendum as provided above shall be a disciplinary violation (New Title 299, Chapter 5). 6. An agent representing a wholesaler in the marketing of a contractual interest in real property shall be considered a seller’s agent, and shall be required to enter into a written agreement with the wholesaler for brokerage services as provided in §76-2422(2). 7. Neb. Rev. Stat. §76-2,120 (2) requires that “Each seller of residential real property located in Nebraska shall provide the purchaser with a written disclosure statement of the real property’s condition.” This statement must be provided by the title seller to the wholesaler by law. A person purchasing a contractual interest in real property from a wholesaler shall be deemed a purchaser of said property and the wholesaler’s agent has an obligation to ensure the Seller Property Condition Disclosure Statement is delivered to the purchaser as provided in N.A.C. Title 299, Chapter 5, Sec 003.23. 8. An agent representing a wholesaler shall have an obligation to provide an estimated closing cost statement to the wholesaler as required by N.A.C. Title 299, Ch. 5, Sec. 003.10 9. An agent representing a wholesaler shall have an obligation to provide an estimated closing-cost statement to seller-customer and buyer customer if offered as part of the services a brokerage provides to an unrepresented customer pursuant to Neb. Rev. Stat. §76-2421(4)(b). 10. An agent representing a wholesaler shall obtain specific written authorization from the owner to show the property, advertise the property, or place a sign in the yard (general common law and criminal law trespassing and privacy concerns). See N.A.C. Title 299, Chapter 2, Sec 011; Neb. Rev. Stat. §91-885.24(11). 11. Advertisements must clearly state that an assignable contract for purchase of real property is being marketed. (Neb. Rev. Stat. §81-885.24(2) prohibiting using advertising that is misleading or inaccurate) 12. Performing any single act described in 81-885.01(2) constitutes brokerage activity and requires a Nebraska real estate license. See Neb. Rev. Stat. §§ 81-885.01, 885.02, 885.03, 885.04 and Commission Policy No. 39, Use of Unlicensed Employees of Owners of Real Estate, (Adopted September 26, 2014). What is the most common listing agreement?An exclusive right-to-sell agreement is the most common type of listing agreement. This legally binding exclusive contract gives the agent the right to market the home, list the house on MLS and earn a commission on the sale.
What's the term for someone who has agency representation with the licensee quizlet?Client. Someone who has agency representation with the real estate salesperson or broker. Consumer. Someone who uses or purchased a product or service.
What is an exclusive agency listing?Exclusive Agency Listing: A contractual agreement under which the listing broker acts as the agent or as the legally recognized non-agency representative of the seller(s), and the seller(s) agrees to pay a commission to the listing broker if the property is sold through the efforts of any real estate broker.
What are the three most common types of listings?In Commercial Real Estate, there are three types of real estate listings used to secure a buyer for a property. An Exclusive Right to Sell, an Exclusive Agency Listing, and an Open Listing.
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