Chapter 2
Individuals in Real Estate License Law
LICENSEE
Georgia’s license law defines a licensee as “any person who is licensed as a community association manager, salesperson, associate broker, or broker.” A licensee is an individual who has completed the education requirements for a license, who has successfully passed an examination for either a community association manager, salesperson, or broker license, and to whom the Commission has issued a license.
BROKER
Georgia’s license law (O.C.G.A. § 43-40-1, et seq.) defines a broker as any person who, for another, and who, for a fee, commission, or any other valuable consideration or with the intent or expectation of receiving the same from another:
| (a) | negotiates or attempts to negotiate, or assists in procuring prospects for the listing, sale, purchase, exchange, renting, lease, or option for any real estate or of the improvements thereon; | |
| (b) | holds himself or herself out as a referral agent for the purpose of securing prospects for the listing, sale, purchase, exchange, renting, lease, or option for any real estate; | |
| (c) | collects rents, assessments, or other trust funds or attempts to collect rents, assessments, or other trust funds; | |
| (d) | is employed by or on behalf of the owner or owners of lots, time-share intervals, or other parcels of real estate at a salary, fee, commission, or any other valuable consideration to sell such real estate or any part thereof in lots or parcels or intervals or other disposition thereof; | |
| (e) | engages in the business of charging an advance fee or contracting for collecting of a fee, other than an advertising fee, in connection with any contract whereby he or she undertakes primarily to promote the sale of real estate either through its listing in a publication issued primarily for such purpose, or for referral of information concerning such real estate to brokers, or both; | |
| (f) | auctions or offers or attempts or agrees to auction real estate; | |
| (g) | buys or offers to buy, sells or offers to sell, or otherwise deals in options to buy real estate; | |
| (h) | performs property management services or community association management services; | |
| (i) | provides or attempts to provide to any party to a real estate transaction consulting services designed to assist the party in the negotiations or procurement of prospects for the listing, sale, purchase, exchange, renting, lease, or option for any real estate or the improvements thereon; or | |
| (j) | advertises or holds himself or herself out as engaged in any of the foregoing. |
A broker is an individual who has attained the age of at least 21 years, who is a high school graduate or holds a certificate of equivalency and who, in the five years prior to applying for the broker license has had at least three years of experience as an active real estate licensee, completed the education requirement for a broker’s license, successfully passed an examination for a broker’s license, and to whom the Commission has issued a broker’s license. A broker can, on behalf of another person, sell, lease, exchange, collect rent on, and manage real property in Georgia. This person can own a real estate brokerage firm and be responsible for the brokerage activity of a partnership, limited liability company, or corporation.
QUALIFYING BROKER
The qualifying broker is an individual who holds a broker’s license and serves a corporation, limited liability company, or a partnership to assure that it and its affiliated licensees adhere to the license law.
ASSOCIATE BROKER
In Georgia’s license law, associate broker means any person who has attained the age of at least 21 years, who is a high school graduate or holds a certificate of equivalency and who acts on behalf of a real estate broker in performing any act authorized to be performed by the broker. An associate broker is an individual who has completed the education requirement for an associate broker’s license, who has successfully passed a broker’s examination, and to whom the Commission has issued an associate broker’s license. This person can sell, lease, exchange, collect rent on, and manage real property in Georgia on behalf of a broker. An associate broker enters into an agreement with a broker as either an employee or an independent contractor.
SALESPERSON
In Georgia’s license law, salesperson means any person, other than an associate broker, who has attained the age of at least 18
years, who is a high school graduate or holds a certificate of equivalency and who acts on behalf of a real estate broker in performing any act authorized to be performed by the broker.
A salesperson is an individual who has completed the educational requirement for a salesperson’s license, who has successfully passed the examination for the salesperson’s license, and to whom the Commission has issued a license. This person can sell, lease, exchange, collect rent, and manage real property in Georgia on behalf of a broker. This person enters into an agreement with a broker as either an employee or an independent contractor.
COMMUNITY ASSOCIATION MANAGER
In Georgia’s license law, community association manager means any person who has attained the age of at lease 18 years, who is a
high school graduate or holds a certificate of equivalency and who acts on behalf of a real estate broker in performing only community association management services.
A community association manager is an individual who has completed the educational requirement for a community association manager’s license, who has successfully passed the examination for the community association manager’s license, and to whom the Commission has issued a license. This person can only provide community association management services in Georgia on behalf of a broker. This person enters into an agreement with a broker as either an employee or an independent contractor.
AGENCY RELATIONSHIP
An agency relationship is a contractual relationship between two people in which one person, the agent, acts or works on behalf of the other person, the principal. The agent has certain duties and responsibilities to the principal. These duties and responsibilities include:
| (a) | a fiduciary responsibility that involves confidentiality, honesty, good faith, truthfulness, and trust; | |
| (b) | obedience to instructions and directions; | |
| (c) | full disclosure and notification of facts; | |
| (d) | loyalty which involves the avoidance of acts that adversely affect the principal or allow the agent to profit at the expense of the principal; | |
| (e) | accountability for funds and property; | |
| (f) | care and diligence in fulfilling the contractual agreement; and | |
| (g) | knowledge and skill needed to fulfill the contractual agreement. |
There are three general categories of agency and agents. These categories are:
| (a) | the universal agent who can transact all activities or business for the principal such as the legal guardian of a minor; | |
| (b) | the general agent who can transact all activity for a principal in a particular business in which the principal is engaged such as the broker’s affiliated licensee; and | |
| (c) | the special agent who can transact only one or more specific acts at the instructions of the principal. |
The broker becomes an agent for the seller or the landlord of a property or for a community association when he or she signs a listing agreement, brokerage engagement agreement, or association or property management agreement to sell or manage the association or property or an agreement to perform any other specific acts relating to real property on behalf of the principal. In this context the broker may be a special agent or a general agent. The broker becomes a special agent of a buyer when he or she signs a brokerage engagement agreement to represent the buyer as a client and assist in finding a suitable property for purchase or lease. The broker is also a special agent under the typical listing agreement in which the seller employs the broker to find a ready, willing and able buyer for a specific property. Or the broker as property manager may be a general agent if the principal grants the authority to manage a real estate project on the principal’s behalf.
LIMITED AGENCY AND THE LIMITED AGENT
In Georgia a limited agent is an agent who is responsible for exercising ordinary care in the discharge of specified duties under a brokerage engagement contract and who has limited fiduciary obligations to the principal. Sections 10-6A-4 through 8 of the “Georgia Brokerage Relationships in Real Estate Transactions Act” (also known as BRRETA) discuss this agency relationship.
SUBAGENT
A subagent is a broker who agrees to become an agent of the broker who has a brokerage agreement with a property owner to sell or lease real property. A subagent usually functions as a “selling agent” in a sales transaction. The “selling broker” or subagent finds but does not act for or represent the prospective buyer. Although subagency became less common in real estate brokerage in the 1990’s, prior to 1992 it was the standard agency relationship when brokers cooperated on residential sales.
LISTING AGENT/BROKER
The listing agent/broker is the broker who signs a brokerage engagement (listing) agreement to market the owner/seller’s property and to attempt to find a ready willing and able buyer on terms acceptable to the seller.
SELLING AGENT/BROKER
The selling agent/brokeris the broker who finds a ready, willing, and able buyer for the real property and obtains an offer to purchase under terms acceptable to the seller.
BUYER’S AGENT/BROKER
A buyer’s agent/broker is the broker who has a brokerage agreement to represent the interests of the buyer (client) in a purchase or lease transaction and to assist the buyer in finding real property.
DUAL AGENT
A dual agent is a broker who represents both the seller and the buyer in the same real property transaction, or the landlord and the tenant in the same lease transaction. A dual agent must inform both parties of the arrangement in writing and have the consent of
both parties to act as a dual agent.
PRINCIPAL
The principal is the individual who contracts with a broker (limited agent) to perform certain acts regarding real property. The principal is the owner when the contract is to sell or lease the real property. The principal is the buyer or tenant when the contract is to find suitable real property.
AFFILIATED LICENSEE
An affiliated licensee is a community association manager, salesperson, or associate broker who has placed his or her license with a broker and entered into an employment or independent contractor relationship with that broker.
AFFILIATE
Affiliate is an alternative name for an affiliated licensee who is either a community association manager, salesperson, or associate broker.
PROPERTY MANAGEMENT SERVICES
Property management services means the provision, for a valuable consideration, to another of the marketing; leasing; physical, administrative, or financial maintenance; and overall management of the foregoing activities for another pursuant to a property management agreement.
COMMUNITY ASSOCIATION MANAGEMENT SERVICES
Community association management services means the provision, for a valuable consideration, to others of management or administrative services on, in, or to the operation of the affairs of a community association, including, but not limited to collecting, controlling, or disbursing funds, obtaining insurance, arranging for and coordinating maintenance to the association property; and otherwise overseeing the day-to-day operations of the association.
(c) Copyright 2006 Georgia Real Estate Commission and Appraisers Board. All rights reserved.