OREGON BROKERAGE

In winding up the affairs of a deceased broker, the temporary licensee may not:

continue to seek offers on outstanding listings after the broker's death. enter into any new listing or sale agreements. in any way conduct professional real estate activity for others who are not principals in a current contract.

An unlicensed employee could not legally:

engage in cold calling, soliciting persons to buy or sell real estate. engage in real estate marketing. engage in negotiations with clients and customers in a transaction. answer questions on listings from information other than that included in prior advertisements. show real estate to prospective purchasers. hold open houses. While only a licensee can hold or conduct an open house, an unlicensed assistant could be present to distribute promotional materials that had been approved by the supervising broker. However, the unlicensed assistant could not engage in any professional real estate activity (e.g., activity that would result in bringing together a ready, willing and able buyer with a seller in an effort to complete a sale).

Whether the relationship of the associates to the principal broker is that of an independent contractor or an employee, the principal broker should enter into a written employment or independent contractor agreement with each associate licensee. The agreement is a personal contract for services to be performed by individuals licensed to the principal broker. It should specify:

the broker's status as an independent contractor or employee. compensation arrangements, including the manner in which the broker will be paid. the actual duties to be performed in the office and in the field by the broker on behalf of the principal broker. any restrictions and requirements of performance consistent with the broker's status.

Under federal tax laws, a number of practical tests are applied to determine an acceptable independent contractor relationship. Failure to meet any of these tests could invalidate an independent contractor relationship and cause additional tax or other liabilities for both parties. As a result of these tests, a principal broker usually does not:

withhold federal and state income taxes from the affiliated broker's earnings; pay federal Social Security (FICA) or state workers' compensation costs of the independent contractor; include the independent contractor in any company-sponsored retirement or pension plan; pay license fees or professional membership fees for the independent contractor; reimburse the independent contractor for business expenses (e.g., car, travel, meals, lodging); and pay a minimum salary to the independent contractor.

A temporary licensee would be entitled to perform the following activities:

Complete negotiations between buyers and sellers on open transactions Deposit and withdraw money from the broker's clients' trust account in connection with the completion of all transactions pending at the time of the broker's death Disburse earnest money or other funds according to any outstanding earnest money receipt or other agreement Promptly pay all real estate commissions owing after closing of all transactions, both to the deceased broker's estate and to participating brokers entitled to commissions resulting from the transactions

At the time of the broker's death, the temporary licensee is responsible for the following:

He must close or terminate transactions that are in various stages of completion or termination He must terminate all listings and buyer's service agreements on which there are no outstanding offers or signed earnest money receipts He must terminate all property management agreements which are in force He must notify immediately each listing property owner of the broker's death, the cancellation of their listing agreement and the options available to them in obtaining the services of a new broker to handle the marketing and sale of their property He must immediately discontinue advertising the deceased broker's listings, cancel outstanding orders for advertising properties and discontinue advertising rental property managed by the deceased broker

A license is placed on inactive status once the Commissioner receives notice through the eLicense system either the licensee terminating the relationship with the principal broker, or the principal broker terminating the licensee. During the following 30 calendar days, the licensee may through the use of eLicense:

Reactivate the licensee with the same principal broker Pay a transfer fee to change their license status and transfer to a new principal broker. If qualified, change the license category and status to become licensed as a principal broker, or if never before licensed as a principal broker, submit an application and pay the applicable license fee. After the 30 days, the license may only be reactivated by applying for reactivation and paying a reactivation fee.

Many people work in real estate offices without a real estate license, assuming day-to-day duties related to various aspects of the licensed activities. An unlicensed property manager may perform many functions through the employing principal broker. An unlicensed employee (e.g., a receptionist or administrative assistant) of the principal broker or an unlicensed personal assistant of a broker may carry out numerous clerical and secretarial functions and support tasks so that licensees have more time to devote to professional real estate activity. He can:

answer the telephone, take messages, and forward calls. follow up on completion of contingency requirements in transactions, including arranging for repairs and checking the progress of required financing. schedule appointments for licensees to show listings. prepare advertising copy for review, approval, and use by the principal broker. install signs and lockboxes on listed property. type and mail documents involved in transactions. verify the accuracy of listing information supplied by brokers, by checking the records at the county tax assessor's office. transmit information included in prior advertisements to a phone prospect (but not transmit information from the MLS or any other source to the prospect, even if no one else is in the office, since that would be considered sales activity).