§ 35.332. Exclusive listing agreements +11Pennsylvania · Real Estate · English

An exclusive listing agreement may be either an exclusive agency or an exclusive right-to-sell/right-to-lease. Beyond the general written agreement requirements of § 35.331, exclusive listings must contain specific financial and durational terms and bold-face statements about commission entitlement.

• ✓An exclusive listing may comprise the exclusive agency of the broker OR the exclusive right-to-sell/exclusive right-to-lease
• ✓Must contain the sale or lease price, the commission/fees/compensation expected, and the duration of the agreement
• ✓Exclusive right-to-sell agreements must include a bold face statement that the broker earns a commission on any sale during the listing period by whomever made, including the owner
• ✓Exclusive right-to-lease agreements must include a bold print statement that the broker earns a commission on any lease during the listing period by whomever made, including the lessor

Certain terms are strictly prohibited in exclusive listing agreements to protect the owner/lessor from overreaching broker terms.

• ✓May not contain a listing period exceeding 1 year
• ✓May not contain an automatic renewal clause
• ✓May not require a cancellation notice to terminate at the end of the listing period
• ✓May not grant the broker authority to execute a signed agreement of sale/lease for the owner, an option to purchase the listed property, or authority to confess judgment against the owner/lessor for the commission

An exclusive listing agreement may comprise either the exclusive agency of the broker, or the exclusive right-to-sell/exclusive right-to-lease. These represent the two categories of exclusive listing arrangements permitted.

• ✓Exclusive listing may be exclusive agency of the broker
• ✓Exclusive listing may be exclusive right-to-sell or exclusive right-to-lease

In addition to general written agreement requirements of § 35.331, an exclusive listing agreement must contain the sale/lease price, commission or compensation expected, and duration. For exclusive right-to-sell it must contain a bold face statement that the broker earns commission during the listing period by whomever made, including the owner; for exclusive right-to-lease a similar bold print statement including the lessor.

• ✓Must contain sale/lease price, commission, and duration of agreement
• ✓Exclusive right-to-sell needs bold face statement broker earns commission by whomever made including owner
• ✓Exclusive right-to-lease needs bold print statement broker earns commission including lessor

An exclusive listing agreement may not contain: a listing period exceeding 1 year; an automatic renewal clause; a cancellation notice to terminate at end of listing period; authority of broker to execute a signed agreement of sale/lease for the owner; an option by broker to purchase the listed property; or authority to confess judgment against owner/lessor for the commission.

• ✓Listing period may not exceed 1 year
• ✓No automatic renewal clause permitted
• ✓No cancellation notice requirement to terminate at end of period
• ✓Broker cannot execute signed agreement of sale/lease for owner
• ✓No option by broker to purchase listed property; no confession of judgment clause

When required information is already set forth in the disclosure summaries under §§ 35.336—35.338, those provisions need not be repeated in the written agreement but may be incorporated by reference. This applies to consumer notices and disclosure summaries for sales, leases, and time-share estates.

• ✓Information in disclosure summaries §§ 35.336—35.338 need not be repeated in agreements
• ✓Such provisions may be incorporated by reference into written agreements

Written agreements committing a consumer to pay a fee must contain numerous mandatory disclosures, including the Real Estate Recovery Fund, escrow handling, negotiated commissions, services/fees, dual agency potential, and conflict-of-interest duties.

• ✓Must include Real Estate Recovery Fund notification (reimbursement for uncollectible judgments from licensee fraud, with Commission contact info)
• ✓Must notify that payments received on account of a sale are held by the broker in escrow pending consummation/termination
• ✓Must notify that commission and agreement duration were determined by negotiation between the broker/licensee and the consumer
• ✓Must describe services to be provided and fees to be charged, and disclose the possibility of serving more than one party plus duties owed and fees receivable
• ✓Must notify of the continuing duty to disclose conflicts of interest in a reasonably practicable time
• ✓Seller/landlord agreements must address cooperation with subagents/buyer agents, that a buyer agent represents the buyer even if compensated by the listing side, and any dual agency potential
• ✓Buyer/tenant agreements must explain percentage-based compensation, cooperation policies with listing brokers, that the broker represents the buyer even if compensated by the listing side, and dual agency potential

A written agreement committing a consumer to pay a fee/commission must contain: notification of the Real Estate Recovery Fund (with Commission phone number); notification that payments are held in escrow; notification that commission and duration are negotiable; a description of services and fees; notification of possible representation of more than one party; notification of continuing duty to disclose conflicts; and seller/landlord or buyer/tenant specific dual agency and cooperation disclosures.

• ✓Must notify of the Real Estate Recovery Fund and that commission/duration are negotiable
• ✓Must describe the services to be provided and fees charged
• ✓Must disclose the possibility of representing more than one party and the potential for the broker to act as a dual agent
• ✓Must notify of the continuing duty to disclose conflicts of interest

Brokers and cemetery brokers must maintain and produce specific records for Commission examination. This includes acknowledgement portions of consumer notices for real estate sales/purchases, time shares, leases, and written disclosure statements establishing subagent or transaction licensee relationships. Records must be produced upon written request or during an office inspection.

• ✓Brokers must retain acknowledgement portions of consumer notices under §§ 35.336, 35.337, and 35.338
• ✓Written disclosure statements establishing subagent/transaction licensee relationships required by § 35.281(b)(3) must be kept
• ✓Records must be produced for Commission examination upon written request or under office inspection per § 35.246
• ✓Corporations, partnerships, or associations holding a broker's license must also produce their entity records

A real estate education provider must obtain Commission approval of its director before beginning operations in Pennsylvania. The director must have a combination of experience in teaching, supervision, and educational administration sufficient to competently administer a real estate education program.

• ✓Commission approval of director required before commencing operations
• ✓Director must have experience in teaching, supervision and educational administration
• ✓Competencies include instructor evaluation, curriculum evaluation, course exam analysis, and records/facilities management

An approved provider must obtain Commission approval before changing directors and must submit information required by § 35.341(6)(ii). If a director dies, withdraws, or is terminated, the provider does not lose approved status if it follows interim director procedures.

• ✓Commission approval required before changing directors
• ✓Interim director name must be submitted within 15 days of death, withdrawal or termination
• ✓Interim director may operate up to 90 days; then a director must be approved under subsection (a) or (b)
• ✓No changes to curriculum, testing, or facilities until new director approved

The Commission may provisionally approve an otherwise qualified director applicant who lacks sufficient background in teaching, supervision, or educational administration. The provisionally approved director must obtain the required qualifications in the time and manner set by the Commission.

• ✓Provisional approval available for otherwise qualified applicants lacking background
• ✓Requisite qualifications must be obtained in time/manner prescribed by Commission

An education provider must obtain Commission approval of its director before operating. The director must have a combination of teaching, supervision, and educational administration experience. The Commission may provisionally approve a qualified-but-lacking applicant. If a director dies/withdraws/is terminated, the provider retains approval provided it names an interim director within 15 days; the interim director may operate up to 90 days, and no curriculum/testing/facility changes may be made until a new director is approved.

• ✓Commission approval of the director is required before commencing operations and before changing directors
• ✓Interim director must be submitted within 15 days of the director's death, withdrawal, or termination
• ✓Interim director may operate up to 90 days; no curriculum/testing/facility changes until new director approved

Except as provided in subsection (b), a licensee must complete 14 hours of continuing education in acceptable courses, taken in a minimum of 2-hour increments per course.

• ✓Licensees must complete 14 hours of CE in acceptable courses
• ✓CE must be completed in a minimum of 2-hour increments

The Commission may, for a given biennial period with adequate notice, require all or part of the 14 hours be in required topics. During the first biennial period in which CE is required, a new licensee must complete the Commission-developed 14-hour required course for new licensees to satisfy the CE requirement.

• ✓The Commission may mandate required topics for all or part of the 14 hours with adequate notice
• ✓New licensees must complete the Commission-developed 14-hour required course during their first biennial period

A licensee must complete 14 hours of continuing education in acceptable courses in a minimum of 2-hour increments. The Commission may require that all or part of the 14 hours be completed in required topics for a given biennial period with adequate notice.

• ✓14 hours of continuing education required per biennial period
• ✓Courses must be taken in minimum 2-hour increments
• ✓The Commission may mandate required topics with adequate notice

During the first biennial period that continuing education is required, a new licensee must complete the Commission-developed 14-hour required course for new licensees to satisfy the continuing education requirement.

• ✓New licensees must complete the Commission-developed 14-hour required course in their first CE-required biennial period
• ✓This 14-hour course satisfies the entire CE requirement for that period

Acceptable CE courses cover a broad list of real estate topics including real estate ethics, laws affecting real estate, financing and mathematics, valuation and evaluation, property management, land use and zoning, income taxation of real property, ad valorem tax assessment, consumer protection and disclosures, agency relationships, landlord-tenant laws, environmental issues, antitrust issues, current litigation, legal instruments, advertising legalities, construction developments, investment analysis, brokerage management, property development, securities and syndication, property exchange, broker supervisory courses, marketing/advertising of inventory, and use of technology.

• ✓Acceptable courses include ethics, laws, financing, valuation, property management, agency, and 25 total enumerated topics
• ✓Broker courses on supervisory duties and standards of conduct (Subchapter E) are acceptable CE

Unacceptable CE courses include mechanical office and business skills such as typing, speed writing, preparation of advertising copy, development of sales promotional devices, word processing, calculator and computer operation, and office management/internal operations procedures that do not bear on the public interest.

• ✓Mechanical office/business skills like typing, word processing, and calculator operation are unacceptable CE
• ✓Office management and internal operations procedures without public interest bearing are unacceptable

Acceptable CE courses include a wide range of real estate subjects such as real estate ethics, laws affecting real estate, financing and mathematics, valuation, property management, land use and zoning, taxation, consumer protection and disclosures, agency relationships, landlord-tenant laws, environmental issues, antitrust, legal instruments, advertising legalities, investment analysis, brokerage management, and use of technology in delivering real estate services.

• ✓25 categories of acceptable courses are listed, including ethics, agency relationships, and consumer protection/disclosures
• ✓Broker courses may cover supervisory duties and standards of conduct under Subchapter E
• ✓Use of technology in delivering real estate services is an acceptable topic

Unacceptable courses include mechanical office and business skills that do not bear on the public interest — for example, typing, speed writing, preparation of advertising copy, development of sales promotional devices, word processing, calculator/computer operation, and office management/internal operations procedures.

• ✓Mechanical office/business skills courses are not acceptable for CE
• ✓Examples of unacceptable topics: typing, word processing, sales promotional device development, office management
• ✓The determining factor is whether the topic bears on the public interest

The main or branch office of a broker must be under the direction and supervision of a broker or associate broker holding either a standard or reciprocal license. A cemetery broker's office must be supervised by a broker, cemetery broker, associate broker, or associate cemetery broker holding a standard or reciprocal license.

• ✓A broker's office must be supervised by a broker or associate broker with a standard or reciprocal license
• ✓A cemetery broker's office must be supervised by a broker, cemetery broker, associate broker, or associate cemetery broker with a standard or reciprocal license

The main or branch office of a broker must be under the direction and supervision of a broker or associate broker holding a standard or reciprocal license. A cemetery broker's office must be supervised by a broker, cemetery broker, associate broker or associate cemetery broker with a standard or reciprocal license.

• ✓A broker's main or branch office must be supervised by a broker or associate broker (standard or reciprocal license)
• ✓A cemetery broker's office must be supervised by a broker, cemetery broker, associate broker or associate cemetery broker
• ✓Associate brokers and salespersons must practice in affiliation with a broker holding a reciprocal or standard license

A branch office may not be operated in a manner that permits, or is intended to permit, an employee to carry on the business of the office for the employee's sole benefit. A rental listing referral agent's office must be supervised by a rental listing referral agent with a standard or reciprocal license and may supervise only one office.

• ✓A branch office may not be operated to permit an employee to carry on business for the employee's sole benefit
• ✓A rental listing referral agent may not supervise more than one office

Associate brokers, salespersons, cemetery salespersons, campground membership salespersons, and time-share salespersons must practice in affiliation with a broker holding a reciprocal or standard license. A branch office may not be operated to permit an employee to carry on business for their sole benefit. A rental listing referral agent office must be supervised by a rental listing referral agent with a standard or reciprocal license, and such an agent may not supervise more than one office.

• ✓Salespersons and associate brokers must practice in affiliation with a broker holding a reciprocal or standard license
• ✓A branch office may not be operated for an employee's sole benefit
• ✓A rental listing referral agent may not supervise more than one office

A salesperson may assist in property management only under the supervision and control of the employing broker. The salesperson faces strict limitations on independent authority in lease matters.

• ✓A salesperson may assist in property management only if supervised and controlled by the employing broker
• ✓A salesperson may not independently negotiate the terms of a lease
• ✓A salesperson may not execute a lease on behalf of the lessor

An agreement of sale (other than for cemetery/mausoleum/cremation space) must contain a comprehensive set of terms identifying the transaction, parties, property, price, and required statutory statements.

• ✓Must include the date, names of buyer and seller, description of property/interest conveyed, sale price, and dates for payment and conveyance
• ✓Must state the zoning classification (unless zoned solely/primarily for single-family dwellings) with a statement that failure to include it renders the agreement voidable at buyer's option with deposit refund without court action
• ✓Must identify the capacity in which the broker/licensee is involved and whether services were provided to another party
• ✓Must provide that money received by the broker be held in an escrow account pending consummation or termination

Agreements of sale must contain mandated informational statements about the Recovery Fund and public road access permits.

• ✓Must include the Real Estate Recovery Fund statement noting it reimburses persons with a final civil judgment against a PA licensee for fraud/misrepresentation/deceit who cannot collect after exhausting legal remedies (phone 717-783-3658)
• ✓Must include a statement that access to a public road may require a highway occupancy permit from the Department of Transportation

Agreements for the purchase of a time share or campground membership must contain a conspicuous cancellation notice giving the purchaser a five-day right to cancel.

• ✓The cancellation statement must be conspicuous in bold face type of at least 10 point size immediately above the purchaser's signature line
• ✓The purchaser may cancel any time prior to midnight of the fifth day following the date of the transaction
• ✓Cancellation notice must be in writing, given by certified return receipt mail or other bona fide means providing a receipt, and effective upon postmark/deposit

When a sale is conditioned on the buyer obtaining a mortgage, specific financing terms must be included, and certain seller-protective provisions must appear in bold face.

• ✓Mortgage-contingent agreements must state the type, principal, maximum interest rate, minimum term, deadline to obtain the mortgage, and the broker's assistance in obtaining it
• ✓Provisions relieving the seller of responsibility for defects or requiring a release, and provisions reserving the builder-seller's right to change specifications, must be printed in bold face
• ✓Cemetery lot/mausoleum agreements need only contain subsection (a)(1)-(5) and (9)

An agreement of sale (other than cemetery lot/mausoleum/cremation space) must contain: date; names of buyer and seller; description of property and interest conveyed; sale price; dates for payment and conveyance; zoning classification (except single-family dwelling zoned property) with voidability statement; statement of broker's capacity; escrow provision; the Real Estate Recovery Fund statement; highway occupancy permit statement; and, for time-share or campground membership, a bold face right-of-cancellation statement.

• ✓Must contain date, names of buyer/seller, property description, sale price, payment/conveyance dates
• ✓Must state zoning classification unless zoned for single-family dwellings; failure renders agreement voidable at buyer's option with return of deposit
• ✓Must include Real Estate Recovery Fund statement with phone (717) 783-3658
• ✓Payments received by broker must be held in escrow pending consummation or termination
• ✓Time-share/campground agreements need bold face right-of-cancellation statement in at least 10-point type above buyer signature line

For time-share or campground membership purchases, the agreement must include a conspicuous bold face statement (at least 10 point) immediately above the signature line stating the purchaser may cancel any time prior to midnight of the fifth day following the transaction date, with written notice by certified return receipt mail or other bona fide delivery providing a receipt.

• ✓Purchaser may cancel prior to midnight of the fifth day following the transaction
• ✓Cancellation notice must be in writing, effective upon postmark or deposit with delivery service providing a receipt

An agreement of sale conditioned upon the buyer obtaining a mortgage must contain the type of mortgage, mortgage principal, maximum interest rate, minimum term, deadline for buyer to obtain the mortgage, and the nature and extent of assistance the broker will render in obtaining it.

• ✓Must state mortgage type, principal, maximum interest rate, and minimum term
• ✓Must state deadline to obtain mortgage and broker's assistance in obtaining it

Certain terms must be printed in bold face if included: provisions relieving seller of responsibility for defects (or requiring buyer release), and provisions reserving builder-seller right to depart from building specifications. An agreement of sale for a cemetery lot/plot or mausoleum space must contain the requirements in subsection (a)(1)—(5) and (9).

• ✓Provisions relieving seller of defect responsibility must be in bold face
• ✓Builder-seller specification change provisions must be in bold face
• ✓Cemetery lot/mausoleum agreements must contain items (a)(1)—(5) and (9)

Owners of real estate are excluded from the act regarding property they own or lease. However, in corporations/partnerships this exclusion is limited to prevent circumventing licensing requirements.

• ✓An owner is excluded with respect to property owned or leased by the owner
• ✓For a corporation/partnership, the exclusion does not extend to more than five partners/officers, nor to other employees

Both attorneys-in-fact under a recorded power of attorney and attorneys-at-law may be excluded, but only under proper conditions that do not circumvent the act's intent.

• ✓An attorney in fact acting under a recorded power of attorney is excluded only if the power is not used to circumvent the act
• ✓Granting a power of attorney to a property manager solely to avoid using a licensed broker is a circumvention
• ✓An attorney-at-law is excluded when receiving a fee within the attorney-client relationship and not holding out as a broker

Certain fiduciaries acting under legal authority are excluded, along with specific institutional and public utility personnel.

• ✓A trustee in bankruptcy, administrator, executor, trustee or guardian acting under court order, will or trust instrument is excluded
• ✓Bank/savings/credit union officers/directors are excluded when only the institution's own real estate is involved
• ✓Auctioneers licensed under the applicable auction acts are excluded while performing authorized duties at a bona fide auction

An employee managing multifamily dwellings for an owner is excluded if not authorized to make key leasing decisions, with limited permitted activities.

• ✓The excluded employee must not be authorized to enter leases, negotiate occupancy terms, or hold tenant money other than on the owner's behalf
• ✓So long as the owner retains decision authority, the individual may show apartments and provide information on rents, rules and leasing determinations

Courts have held that broker misrepresentations can constitute violations even if not knowingly made, and that a salesperson's conduct may be imputed to the principal broker.

• ✓Misrepresentations by a broker may demonstrate incompetency or bad faith even if not knowingly made (Smith v. State Real Estate Commission)
• ✓A salesperson's misrepresentation to Commission investigators is conduct imputable to the salesperson's principal broker (Kalins v. State Real Estate Commission)
• ✓A realtor violating the act in the capacity of a seller is not absolved of responsibility for ethical violations (Wagner v. State Real Estate Commission)

Case law establishes limits on a broker's authority under exclusive sales contracts. An appointment clause in a listing does not empower a broker to sign an agreement of sale for the owner.

• ✓An exclusive sales contract may not contain a provision empowering a broker to execute a signed agreement of sale for the owner
• ✓An appointment clause identical to approved language does not empower the broker to sign a sale agreement for the owner (Roskwitalski v. Reiss)

The State Real Estate Commission has broad discretion to revoke licenses for violations, including failure to maintain proper records, and need not address every mitigating factor.

• ✓The Commission may revoke broker licenses for violations even considering good reputation or mitigating factors (Shenk v. State Real Estate Commission)
• ✓Failure to maintain proper records and awareness of the seriousness of risk supports discipline

An approved real estate education provider must renew its approval annually by submitting a completed renewal application with required documentation and fees to the Commission.

• ✓Approval must be renewed annually
• ✓Must submit notarized certification of compliance signed by the director
• ✓Must submit copy of $10,000 surety bond for upcoming renewal period
• ✓Must pay renewal fee prescribed in § 35.203

An approved education provider must renew its approval annually by submitting a renewal application with a notarized certification of compliance signed by the director, a copy of the $10,000 surety bond covering the upcoming period, and the renewal fee.

• ✓Education provider approval must be renewed annually
• ✓Renewal requires notarized compliance certification, current $10,000 surety bond copy, and renewal fee

The Commission charges specific fees for reviewing qualifications, applications, and initial licensure of various license types. Broker candidate qualification review is $40, and application fees range by license type.

• ✓Review of broker/cemetery broker examination candidate qualifications is $40
• ✓Application for broker, cemetery broker, or rental listing referral agent licensure is $75; branch office is $65; associate broker/salesperson is $25; cemetery salesperson is $20
• ✓Initial standard/reciprocal broker licensure is $94.50

Licenses renew biennially with set fees by license type. Late renewal requires the prescribed renewal fee plus an additional penalty per month past the renewal date.

• ✓Biennial renewal for broker/cemetery broker/branch office/rental listing referral agent is $126
• ✓Late renewal requires the prescribed renewal fee plus $5 for each month or part of a month beyond the renewal date
• ✓Duplicate standard or reciprocal license fee is $5

Real estate education providers pay fees for approval, renewal, reinspection, and changes. Licensees pay fees for changes of name, address, or employer.

• ✓Annual renewal of approval of a real estate education provider is $375 plus $15 for each satellite location, course, and instructor
• ✓Change of name or office location of broker/cemetery broker/rental listing referral agent is $75
• ✓Change of employer or address for a salesperson/associate broker is $20

The Commission charges specific fees for application, initial licensure and biennial renewal that candidates should be familiar with, particularly the higher fees for brokers versus salespersons.

• ✓Review of qualifications for broker/cemetery broker examination is $40
• ✓Application for broker, cemetery broker or rental listing referral agent licensure is $75
• ✓Broker licenses are renewed biennially (every two years), with brokers paying higher fees than associate brokers/salespersons

Late renewal of a license carries an additional penalty fee beyond the standard renewal fee, calculated per month of lateness.

• ✓Late renewal costs the prescribed renewal fee PLUS $5 for each month or part of the month beyond the renewal date
• ✓A duplicate standard or reciprocal license costs $5