Recently the California Bureau of Real Estate updated “Guidelines for Unlicensed Assistants who Work in the Real Estate Industry.” These guidelines have been written to offer some direction to California real estate licensees and others regarding what unlicensed assistants can lawfully do in the real estate arena without having a California real estate license. To assist brokers and designated broker/officers to properly carry out their duty to supervise and control activities conducted on their behalf during the course of a licensed transaction, it is important for the broker to know and identify those activities which do and do not require a real estate license.
Cold Contacting of Potential Prospects
Unlicensed assistants may assist in the performance of cold contacting potential prospects. Cold contacting of potential prospects is the making of telephone calls or the use of electronic or social media to canvass for interest in using the services of a real estate broker. Should the person responding indicate an interest in using the services of a broker, or if there is an interest in ascertaining the kind of services a broker can provide, the person answering with interest shall be referred to a licensee, or an appointment may be scheduled to enable him or her to meet with a broker or an associate licensee** (licensee***). At no time may an unlicensed assistant attempt to induce the person being called to use a broker’s services. The canvassing may only be used to develop general information about the interest of the person answering and may not be used, designed or structured for solicitation purposes with respect to a specific property, transaction or product. (The term “solicitation” as used herein should be given its broadest interpretation.)
Open Houses
With the principal’s consent, unlicensed assistants may assist licensees at an open house intended for the public by placing signs, greeting the public, providing factual information from or handing out preprinted materials prepared by or reviewed and approved for use by the licensee, or arranging appointments with the licensee. During the holding of an open house, only a licensee may show or exhibit the property, discuss terms and conditions of a possible sale, discuss other features of the property, such as its location, neighborhood or schools, or engage in any other conduct which is used, designed or structured for solicitation purposes with respect to the property.
Comparative Market Analysis
Unlicensed assistants may make, conduct or prepare a comparative market analysis subject to the approval of, and for use by, the licensee.
Communicating With the Public
Unlicensed assistants may provide factual information to others from writings prepared by the licensee. A non-licensee may not communicate with the public in a manner which is used, designed or structured for solicitation purposes with respect to a specific property, transaction or product.
Arranging Appointments
Unlicensed assistants can make or schedule appointments for licensees to meet with a principal or party to the transaction. As directed by the licensee to whom the broker has delegated such authority, an unlicensed assistant can arrange for and order reports and services from a third party in connection with the transaction, or for the provision of services in connection with the transaction, such as a pest control inspection and report, a roof inspection and report, a title inspection and/or a preliminary report, an appraisal and report, a credit check and report, or repair or other work to be performed to the property as a part of the sale.
Access to Property
With the principal’s consent, unlicensed assistants can be present to let into the property a person who is either to inspect a portion or all of the property for the purpose of preparing a report, or who is to perform repair work or other work to the property in connection with the transaction. Information about the real property which is needed by the person making the inspection — for the purpose of completing his or her report — must be provided by the broker or associate licensee, unless it comes from a data sheet prepared by the broker, associate licensee or principal, and that fact is made clear to the person requesting the information.
Advertising
Unlicensed assistants can prepare and design advertising relating to the transaction for which the broker was employed, if the advertising is reviewed and approved by the broker or associate licensee prior to its publication.
Preparation of Documents
Unlicensed assistants can prepare and complete documents and instruments under the supervision and direction of the licensee if the final documents or instruments will be or have been reviewed or approved by the licensee prior to the documents or instruments being presented, given or delivered to a principal or party to the transaction.
Delivery & Signing Documents
Unlicensed assistants may mail, deliver, pick up, or arrange the mailing, delivery, or picking up of documents or instruments related to the transaction, including obtaining signatures to the documents or instruments from principals, parties or service providers in connection with the transaction. Such activity shall not include a discussion of the content, relevance, importance or significance of the document, or instrument or any portion thereof, with a principal or party to the transaction.
Trust Funds
Unlicensed assistants can accept, account for, and or provide a receipt for trust funds received from a principal or a party to the transaction.
Communicating with Principals, etc.
Unlicensed assistants can communicate with a principal, party or service provider in connection with a transaction about when reports or other information needed concerning any aspect of the transaction will be delivered, or when certain services will be performed or completed, or if the services have been completed.
Document Review
Unlicensed assistants can also review, as instructed by the responsible/supervising licensee, transaction documentation for completeness or compliance, providing the final determination as to completeness or compliance is made by the broker or associate licensee.
Brokers and others who may refer to these Guidelines from time to time should be aware that it does not take very much to go from unlicensed to licensed activity. For example, it is a commonly held belief and understanding among licensees and others that participation in “negotiations” is somehow limited to the actual bargaining over terms and conditions or a sold or loan, when in fact the courts in this state have given much broader application to this term to include activity which may directly assist or aid in the negotiations or closing of a transaction.
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