(a) A broker is required to advise a sponsored salesperson
of the scope of the salesperson's authorized activities under the
Act. Unless such scope is limited or revoked in writing, a broker
is responsible for the authorized acts of the broker's salespersons,
but the broker is not required to supervise the salespersons directly.
If a broker permits a sponsored salesperson to conduct activities
beyond the scope explicitly authorized by the broker, those too will
be deemed to be authorized acts for which the broker is responsible.
(b) A real estate broker acting as an agent owes the
very highest fiduciary obligation to the agent's principal and is
obliged to convey to the principal all information of which the agent
has knowledge and which may affect the principal's decision.
(c) A broker is responsible for the proper handling
of trust funds placed with the broker, although the broker may authorize
other persons to sign checks on behalf of the broker.
(d) A broker is responsible for any property management
activity which requires a real estate license that is conducted by
the broker's sponsored salespersons.
(e) A broker may delegate to another licensee the responsibility
to assist in administering compliance with the Act and Rules, but
the broker may not relinquish overall responsibility for the supervision
of licensees sponsored by the broker. Any such delegation must be
in writing.
(f) Listings may only be solicited and accepted in
a broker's name.
(g) A broker is responsible to ensure that a sponsored
salesperson's advertising complies with §535.154 of this title
(relating to Advertising).
(h) Except for records destroyed by an "Act of God"
such as a natural disaster or fire not intentionally caused by the
broker, the following records, at a minimum, shall be maintained for
at least four (4) years from the date of closing or termination of
the contract in a format that can readily be made available to the
commission.
(1) Disclosures;
(2) Commission Agreements such as listing agreements,
buyer representation agreements or other written agreement relied
upon to claim compensation;
(3) Work files;
(4) Contracts and related addenda;
(5) Receipts and disbursements of compensation for
services subject to the Act;
(6) Property management contracts;
(7) Documents required by USPAP for appraisals; and
(8) Sponsorship agreements between the broker and sponsored
salespersons.
(i) A broker shall maintain on a current basis written
policies and procedures to ensure that:
(1) Each sponsored salesperson is advised of the scope
of the salesperson's authorized activities subject to the Act and
is competent to conduct such activities.
(2) Each sponsored salesperson maintains their license
in active status at all times while they are engaging in activities
subject to the Act.
(3) Any and all compensation paid to a sponsored salesperson
for acts or services subject to the Act is paid by, through, or with
the written consent of the sponsoring broker.
(4) Each sponsored salesperson is provided on a timely
basis, prior to the effective date of the change, notice of any change
to the Act, Rules, or commission promulgated contract forms.
(5) In addition to completing statutory minimum continuing
education requirements, each sponsored salesperson receives such additional
educational instruction the broker may deem necessary to obtain and
maintain on a current basis competency in the scope of the sponsored
salesperson's practice subject to the Act.
(6) Each sponsored salesperson complies with the commission's
advertising rules.
(7) All trust accounts, including but not limited to
property management trust accounts, and other funds received from
consumers are handled by the broker with appropriate controls.
(8) Records are properly maintained pursuant to subsection
(h) of this section.
(j) A broker must promptly respond to sponsored salespersons,
clients, and licensees representing other parties in real estate transactions.
(k) A sponsoring broker shall deliver to or otherwise
provide, within a reasonable time after receipt, mail and other correspondence
from the commission to their sponsored salespersons. A broker may
deliver such correspondence by facsimile or email.
(l) When the broker is a business entity, the designated
broker is the person responsible for the broker responsibilities under
this section.
(m) This section is not meant to create or require
an employer/employee relationship between a broker and a sponsored
salesperson.
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Source Note: The provisions of this §535.2 adopted to be effective January 1, 1976; amended to be effective April 14, 1998, 23 TexReg 3681; amended to be effective July 1, 1999, 24 TexReg 4822; amended to be effective November 26, 2002, 27 TexReg 10920; amended to be effective May 18, 2003, 28 TexReg 3951; amended to be effective January 1, 2011, 35 TexReg 11674; amended to be effective November 29, 2012, 37 TexReg 9364 |