The Unlicensed Assistant, the Instagram Post, and the Cousin's Cut
Priya is a salesperson at Harborline Realty in Atlantic County. Her unlicensed assistant, Dev, handles the office's social media. Dev posts a photo of a new listing with the caption: "Just listed! 4BR Colonial, Cherry Hill. Seller will take $615K. Call Dev, 856-555-0142." Dev also unlocks the door and sits at weekend open houses, where he tells visitors the seller's bottom line and collects offers "to save time." Separately, Priya's cousin referred a buyer to her; after closing, Priya mailed the cousin a $750 check from her commission as a thank-you. Priya's broker never reviews the social media accounts and does not know about the payment.
1. Which of Dev's activities are permissible for an unlicensed assistant, and what specifically is wrong with the social media post?
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Permissible (clerical/ministerial): unlocking the door, being present at an open house, handing out pre-prepared brochures, and passing along messages. These do not require a license.
Not permissible (brokerage activity requiring a license):
- Telling visitors the seller's bottom line. Quoting price and terms is negotiating, and negotiating a sale for another for compensation requires a New Jersey license (N.J.S.A. 45:15-1 et seq.). "Collecting offers to save time" is worse: receiving and discussing offers is brokerage.
The post has three defects:
- It fails to identify the licensed brokerage. New Jersey advertising rules require advertising to include the name of the brokerage, not just an individual's name and cell number.
- It is posted by and directs calls to an unlicensed person, which implies Dev is the one providing brokerage services.
- It publishes the seller's bottom line, which is confidential to the seller-client and should never be advertised.
The fix: advertising must run under "Harborline Realty," Dev's role limited to clerical tasks, and any consumer inquiry routed to a licensee.
2. Priya's $750 payment to her cousin: is it lawful, and who is exposed to discipline?
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It is a violation. A New Jersey licensee may not pay compensation or a referral fee to an unlicensed person for the referral of real estate business, and a salesperson may not share compensation with anyone other than her employing broker. The commission was earned by and payable to Harborline Realty; Priya's unilateral split of it with an unlicensed relative is both an unlawful fee-splitting and a misuse of funds she does not control.
Exposure:
- Priya: Commission discipline, including penalties, suspension, or revocation, and possible required restitution.
- The broker: Derivative exposure for failing to supervise and for the inaccurate treatment of commission funds; the broker should have been told before any money left Priya's hands.
The lawful path would have been a broker-to-broker referral arrangement with another licensed brokerage, or no payment at all.
3. What is the broker's own liability here, and what should the broker do now?
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Under New Jersey license law and Commission rules, the broker is responsible for the brokerage's operations and for supervising licensees and unlicensed staff. Two failures exist: no review of the brokerage's advertising, and no process catching an off-book payment of compensation.
A workable remediation plan:
- Immediately correct or remove the advertising and re-issue it under the brokerage's licensed name.
- Put a written policy in place defining unlicensed-assistant duties (no pricing, no negotiating, no discussing terms) and require pre-approval of all advertising.
- Document the $750 payment and self-report to the Commission rather than waiting for a complaint; self-reporting and corrective action typically mitigate discipline.
- Retain records of the listing file, the advertising, and the corrective steps.
Note the pattern: each defect is separately actionable, and Priya's and the broker's exposure are not the same.