Unlicensed Assistant, Advertising, and Trust Funds
Dana is a sales agent at Bright Realty. Her unlicensed assistant posts on social media: "Just listed! 3/2 in Austin, call Dana at 512-555-1234." The post does not name Bright Realty. The assistant also emails a buyer client a repair amendment and writes, "Sign here; this protects you." The assistant receives a $3,000 earnest money check from the buyer and deposits it into Dana's personal account "to hold it for a few days." Dana's yard signs say "Dana Homes" without the brokerage name. Dana's broker is out of town and has not approved the team name.
1. Identify the TREC/licensing problems in the assistant's conduct and Dana's advertising.
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The assistant is performing acts requiring a license: advising the buyer to sign and interpreting that the amendment "protects" the buyer is giving advice about contract terms. An unlicensed assistant may perform clerical tasks, deliver documents, and provide factual information, but may not negotiate, advise, or interpret contract terms.
The social media post and yard signs violate advertising rules because they omit the brokerage name. A team name such as "Dana Homes" must be approved by the broker and used in a way that does not mislead the public; the advertising must identify Bright Realty. Dana should correct the ads and stop the assistant from advising clients.
2. What should have been done with the $3,000 earnest money check?
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The earnest money must be handled as trust funds. It should be delivered to the title company or deposited into the broker's trust account according to the contract and TREC rules. Depositing it into Dana's personal account is conversion/misapplication of trust funds and is a serious licensing violation.
Dana should immediately notify her broker, transfer the funds to the proper trust or escrow account, and document the correction. The broker must maintain records and may need to self-report depending on the circumstances.
3. What is the broker's responsibility for the team name and the assistant's activities?
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The broker is responsible for supervising license holders and unlicensed assistants. The broker must approve the team name, ensure advertising includes the brokerage name, and set written policies on what unlicensed staff may do. The broker cannot delegate brokerage activities to an unlicensed assistant.
The broker should review the social media posts, yard signs, and email practices, retrain the assistant, and document corrective action. If the broker did not authorize "Dana Homes," Dana should stop using it until approved.