8-7-17   •   Vol. 2017 Issue 28    •   Brian Copeland, 2017 President   •  Phil Newman, Editor

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✔  Hotline: Legal insight on “cooperating compensation”
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Now more than ever, it is critical for REALTORS® to speak with one voice about the stability a sound, dynamic real estate market brings to our communities. From city hall to the Tennessee General Assembly to the U.S. Capitol, our elected officials are making decisions that have a huge impact on the bottom line of REALTORS® and your clients. 

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Meet Incoming CEO Angela Shields
In case you missed it, last week 2017 President Brian Copeland introduced our incoming Chief Executive Officer, Angela Shields, who will join the Tennessee REALTORS® staff in early October. Read more about her HERE. On a related note, in the coming weeks we will honor two retiring staff leaders, Executive Vice President Steve Harding and Administrative Vice President Linda Woods, who, between them, have amassed 92 years of service to the state association! Stay tuned.

Save $150k (!) or More — Comply with Digital Copyright Act
The Digital Millennium Copyright Act (DMCA) is a federal copyright law that exempts website owners (including real estate brokers / agents) from copyright-infringement liability for infringing works that are posted to the owner’s website by a third party. Statutory damages can reach $150,000 per infringement. To ensure that you’re covered by the DMCA, you must first register (or re-register) a “copyright agent” for your website by Dec. 31, 2017; do that HERE. Watch NAR’s Chloe Hecht explain the DMCA in THIS VIDEO and/or email her directly with quesetions at .

Final Convention Deadline FAST Approaching!
The Sept. 1 deadline will soon be here. Don’t miss the chance to sharpen your skills, earn affordable CE, connect with fellow Tennessee REALTORS®, and celebrate at our Fall Convention, Sept. 13-16, in Memphis! Scroll down for details, OR watch the preview video starring 2017 President-Elect Leon Dickson Sr., OR head straight to the Registration page HERE.

Rock Your Video! — Free Webinar 8/9
Video is exploding in real estate marketing. Pick up fresh tools for creating great video and get inspired by examples from other pros in a free webinar from the Real Estate Technology Institute (RETI), a Tennessee REALTORS® partner, 3 p.m. EDT/2 p.m. CDT this Wed. 8/9. RegisteHERE.

Committee Nominations: Open until Aug. 31
Are you ready to serve in statewide leadership? Submit an application for a 2018 Tennessee REALTORS®committee, RPAC Trustee and/or TREEF Trustee position. To be considered, you MUST apply by Aug. 31, 2017. Committee and RPAC trustee positions, go HERE. TREEF trustee positions, go HERE(member login required)

Get details and Register HEREView/print the Schedule HERE.
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Source: Tennessee REALTORS® Legal & Ethics Hotline Counsel

Brokers and Agents: Cooperating Compensation
Cooperating Compensation is the amount of compensation a listing broker is offering a selling broker in a real estate transaction. This week’s Q&As address the legal necessity of offering such compensation, the appropriate avenues to agree on it, and the legal liability of a licensee to pay it.

Required to Compensate?

Question: Do I as a listing agent have to offer compensation to another agent?

Answer: You are not required to offer any cooperating compensation, but you need to make your seller aware if it is not part of the agreeement. The amount offered for a cooperating compensation to a buyer’s agent is purely at the discretion of the listing company. They can offer any amount they choose. Pursuant to Standard of Practice 3-1:

Realtors®, acting as exclusive agents or brokers of sellers/landlords, establish the terms and conditions of offers to cooperate. Unless expressly indicated in offers to cooperate, cooperating brokers may not assume that the offer of cooperation includes an offer of compensation. Terms of compensation, if any, shall be ascertained by cooperating brokers before beginning efforts to accept the offer of cooperation.

Realtors® are required to disclose the amounts that they will be offering to cooperating agents to their sellers. Standard of Practice 1-12 states:

When entering into listing contracts, Realtors® must advise sellers/landlords of:

1.      the Realtor®’s company policies regarding cooperation and the amount(s) of any compensation that will be offered to subagents, buyer/tenant agents, and/or brokers acting in legally recognized non-agency capacities;

2.      the fact that buyer/tenant agents or brokers, even if compensated by listing brokers, or by sellers/landlords may represent the interests of buyers/tenants; and

3.      any potential for listing brokers to act as disclosed dual agents, e.g., buyer/tenant agents.

Bottom line, the agent must share with their client the amount of compensation being charged to them as well as the amount that will be paid to the buyer’s agent through an offer of cooperation.

Disputed Commission?

Question: I represented a seller on a transaction. At the closing, the buyer refused to pay their agent’s commission. Now, the title company and buyer’s agent is demanding that I pay the commission. How should I handle this situation?

Answer: The agreement that would control this situation is the Compensation Agreement between listing and selling broker.

That agreement would state the amount, if any, you owe the cooperating broker. In the absence of such an agreement, and without reviewing other documents and facts involved, it is doubtful you would owe the cooperating broker any money. Assuming the buyer’s agent had an agreement with his buyer, the cooperating broker needs to take action against his buyer for his money.

You might contact an attorney and share all documents used in this transaction to see what your legal obligations may be. 

Include Commission in P&S Agreement?

Question: Can a licensee negotiate cooperating commission within the special stipulations portion of the purchase and sale agreement?

Answer: It is not advisable for commissions to be included in the Purchase and Sale Agreement. The real estate agents (firms) are not parties to the agreement, so it is more difficult to pursue the commissions in the event that they are not paid. Instead, it is wise to handle this in a separate agreement between the party getting paid and the party paying the commission.


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