BARRISTER'S BRIEFING: Keeping Your Ducks in a Row: Staying Compliant in the New Year

Brian Levine | January 13, 2021

Brian Levine, Esq.

With the new year upon us, we must keep in mind all the changes that took place in 2020 (although I’m sure many of us wish to forget about last year). So, in keeping with helping all members stay in compliance with various rules, regulations, and requirements, I am going to dedicate this month’s article to serve as a cheat-sheet for compliance-related matters.

Advertising

New advertising regulations (Section 175.25) went into effect on Nov. 2, 2020. For websites, all brokers and their agents that advertise an exclusive listing of another broker must now clearly and conspicuously display the name of the listing broker preceded by one of seven permitted phrases. The regulation applies to agents or brokerages that display an IDX feed on their websites. It also applies to paid advertisements through third parties. Further, if a paid advertisement is utilized, the word “advertisement” must immediately follow the name of the licensee. A copy of the amended advertising regulation can be found here or by going to the NYSAR website.

In addition to the new regulations, an agent must be reminded to remain compliant with current advertising regulations and remember that all advertising (including signs, ads, business cards, marketing pieces, blast e-mails, social media, etc.) must be approved by your broker. Things to remember include:

General Advertising:

• Unless given express permission, you can only advertise your own exclusive listings;

• Do not use someone else’s photos or description without permission;

• Include the brokerage name and either the full address or general office number;

• Include your license type.

Business Cards:

• Must include brokerage name, license type, brokerage address and general office phone number.

Teams:

• Team names shall either: (i) include the full licensed name of the real estate brokers, associate brokers or real estate salespersons who are part of said team; or (ii) if the names are not included, the team name must be immediately followed by “at/of [full name of the broker/brokerage].”

• Team names shall use the term “team.” The use of any other terms besides “team” is prohibited.

License Renewal/Continuing Education/NAR Code of Ethics

Some changes have taken place for real estate license renewal as they relate to Continuing Education, the most important of which is that brokers who were previously exempt from earning CE credit will no longer be exempt when they renew their licenses after July 1, 2021. For CE credits, timing is everything.

License Expires BEFORE July 1, 2021:

Must complete at least 22.5 hours of continuing education (CE) credit including:

• Three (3) hours of fair housing;

• One (1) hour of agency (two (2) hours if first license cycle);

• An approved Code of Ethics course every three (3) years.

License Expires AFTER July 1, 2021:

Must take 22.5 hours of CE credit including:

• three (3) hours of fair housing;

• one (1) hour of agency (two hours in the first license cycle);

• two-and-a-half (2.5) hours of ethical business practices (includes NAR Code of Ethics training);

• one (1) hour of recent legal matters (may include statutes, laws, regulations, rules, codes, DOS opinions and decisions and court decisions).

NAR Code of Ethics:

As noted above, all member must take two-and-a-half (2.5) hours of Code of Ethics training to remain an active member of NAR and the association. This training recently changed from a two-year cycle to a three-year cycle. The last cycle was extended to Dec. 31, 2021.

Fair Housing

New Fair Housing regulations went into effect on June 20, 2020. As a result, all Realtors must now:

• Provide a Housing and Anti-Discrimination Disclosure to every consumer at first substantive contact;

• Post a Housing and Anti-Discrimination Notice at all offices and at all Open Houses as well as add a link to all webpages.

COVID Forms

Currently, there are no state-mandated COVID forms that must be filled out by member, clients, customers; however, some brokerages, at the direction of their clients, have established certain business practices that will require the execution of various COVID forms in order for someone to see a property. This is permissible so long as it is done in a non-discriminatory way.

Other Forms You Should Already be Using

Please be reminded that you are required to provide an Agency Disclosure Form at first substantive contact.

You should also be providing a lead disclosure form and pamphlet when necessary.

No Cold Calling

As of the date of authoring this article, there is still a state of emergency in New York. As a result, real estate agents are still prohibited from making cold calls to prospective clients with whom they do not have an established relationship. This means that you cannot call a FSBO to solicit the listing. However, you may call a FSBO if you have an identifiable purchaser interested in the property.

Legal Updates

NAR recently provided a release relating to the Department of Labor’s (DOL) final independent contractor rule which helps in clarifying the standard for employee versus independent contractor status under the Fair Labor Standards Act. While the current effective date of the rule is March 8, 2021, NAR believed that the Biden team will freeze this regulation upon taking office, as they believe that the new administration is more in favor of classifying workers as employees rather than independent contractors. NAR will be closely watching this as it develops.

NAR stated: “For real estate professionals, the final rule does not change their classification as independent contractors under the Internal Revenue Code, nor does it preempt the many states laws classifying real estate professionals as independent contractors. Thus, states still need to ensure their laws adequately protect real estate professionals as independent contractors.”

NAR previously submitted comments on the proposed rule last October, primarily advocating for minimal disruption to the real estate industry. NAR supports DOL’s efforts to provide a clear and consistent standard for evaluating a worker’s status, while preserving existing worker classification authority that allows real estate professionals to be independent contractors.

Brian Levine
Brian S. Levine, Esq. is In-House Counsel/Director of Legal Services & Professional Standards Administrator for the Hudson Gateway Association of Realtors.