Are You My Brokers? The Evolving Legal Status of the Real Estate Salesperson

Miller Starr Regalia
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Under the Real Estate Law that governs the regulation of brokers and salespersons by the Bureau of Real Estate, a salesperson is theoretically subject to supervision and control at all times by the broker that employs the salesperson, which broker is also responsible for the salesperson’s actions and omissions. However, the status or role of a “salesperson” in relation to real estate brokerage can often be ambiguous and confusing. Under the Worker’s Compensation and Unemployment Laws, the salesperson is generally treated as a nonemployee “independent contractor” or “commission agent,” whereas under the tax laws the salesperson is generally an employee. The Real Estate Law expressly states that whether the parties couch their relationship in terms of “independent contractor” or “employers and employee,” the obligations of brokers and salespersons under the licensing laws and to members of the public apply without regard to the terms used by them in their contractual relationships. The law further makes brokers directly responsible to supervise the salespersons in their employ, and liable for their torts under the doctrine of respondeat superior.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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