22 TAC §535.148
The Texas Real Estate Commission (TREC) proposes an amendment
to §535.148, concerning a real estate licensee's receiving an undisclosed
commission or rebate. The purpose of the proposed amendment is to simplify
disclosure requirements for licensees, while ensuring material disclosures
are made to the appropriate persons. The amendment would require a licensee
to obtain the consent of the licensee's client when the licensee receives
a fee, commission, or rebate from a person other than the licensee's client.
The current section requires the licensee to disclose to both parties in the
transaction the intention of being paid by a person other than the licensee's
client and to obtain the consent of both parties. The amendment also addresses
situations in which a licensee is receiving a payment for referring a service
provider who is being paid by a party the licensee does not represent. In
those situations, the amendment would require the licensee to obtain the consent
of the other party to receive the payment. The effect of the amendment would
be to require the consent of the other party only when the receipt of payment
by the licensee would be material to the other party, as when a seller is
paying for repairs, and the service provider making the repairs is being referred
by the buyer's broker. Otherwise, the acceptance of a fee from someone other
than the licensee's client would tend to be material only to the licensee's
client. For example, if the contract of sale for the transaction calls for
the buyer to pay for lender-required repairs, the acceptance of a fee by the
buyer's broker from a repair company for referring the buyer to the company
would typically not be material to the seller, while it could be material
to the buyer in determining whether to use the services of the repair company.
Mark A. Moseley, general counsel, has determined that for the first five-year
period the section is in effect there will be no fiscal implications for the
state or for units of local government as a result of enforcing or administering
the section. There is no anticipated impact on small businesses, micro businesses
or local or state employment as a result of implementing the section.
Mr. Moseley also has determined that for each year of the first five years
the section as proposed is in effect the public benefit anticipated as a result
of enforcing the section will clarification of disclosure requirements by
licensees. There is no anticipated economic cost to persons who are required
to comply with the proposed section.
Comments on the proposal may be submitted to Mark A. Moseley, General Counsel,
Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188.
The amendment is proposed under Texas Civil Statutes, Article
6573a, §5(h), which authorizes the Texas Real Estate Commission to make
and enforce all rules and regulations necessary for the performance of its
duties. The statute which is affected by this proposal is Texas Civil Statutes,
Article 6573a.
§535.148.Receiving an Undisclosed Commission or Rebate.
(a)
A licensee may not receive a commission, rebate,
or fee in a transaction from a person other than the person the licensee represents
without first disclosing to
the licensee's client
[
all parties
to the transaction
] that the licensee intends to receive the commission,
rebate or fee, and obtaining the consent of
the licensee's client
[
all parties
]. This
subsection
[
section
]
does not apply to referral fees paid by one
licensed real estate broker
or salesperson to another licensed broker or salesperson
[
real
estate license to another licensee
].
(b)
If a person the licensee does
not represent agrees to pay a service provider in the transaction, the licensee
must also obtain the consent of that person to accept a fee, commission or
rebate from the service provider. As used in this subsection, the term "service
provider" does not include a person acting in the capacity of a real estate
broker or salesperson.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State, on April 24, 2001.
TRD-200102385
Mark A. Moseley
General Counsel
Texas Real Estate Commission
Earliest possible date of adoption: June 10, 2001
For further information, please call: (512) 465-3900