(Editor’s Note: The following is reprinted from the Real Estate Bulletin, spring 2012 issue, published by the California Department of Real Estate.)
“The California Real Estate Law (Business and Professions Code §10000, et seq.) does not prohibit the sharing of commissions. Before going further, it must be understood that this section and its analysis only covers the California Real Estate Law. Other laws, such as the Federal Real Estate Settlement Procedures Act (known as RESPA) must also be considered by licensees.
From a technical point-of-view, the agent/client relationship, and the right to commissions therefrom, belong to the broker. Nevertheless, it is recognized that real estate agents may work together and decide to share or split a commission.
A licensee may share or split his or her commission with another person or entity provided that person or entity has not performed any acts for which a real estate license is required. The Real Estate Law prohibits the payment of compensation to unlicensed persons who are performing acts requiring a license on behalf of another or others.
For example, a licensee may give a share of the licensee’s commission to a buyer, as an incentive to a prospective buyer, assuming the incentive payment is not a violation of some other provision of law. Where an unlicensed person is acting as a principal in a transaction (i.e., seller or buyer), that person is not “acting on behalf of another or others” (licensed activity) and the prohibition described above would not apply.
If licensed acts were performed, a commission can be shared only if the person was a licensed real estate broker or salesperson acting within the scope of his or her license.
Even though a licensed salesperson may share his or her commission, as discussed above, the salesperson’s employing broker must actually direct and control the manner and payment of a salesperson’s share of the earned commission to ensure compliance with B&P §10137.
Pre-supposing that the broker has authorized escrow to directly pay a commission to the salesperson, the commission can be paid to the salesperson out of escrow.
Depending on the circumstances, there may be a disclosure requirement if such payment is a material fact to a party to the transaction.
Lastly, B&P §10137 allows “a licensed real estate broker to pay a commission to a broker of another State”. This refers to another State in the United States of America. It does not refer to a foreign country. However, there is no prohibition in the Real Estate Law against a real estate broker, licensed in the State of California, paying money to a foreign individual or company (which may or may not be a licensed real estate broker in their respective countries), as long as the payment of money is not for acts which require a real estate license in the State of California.”