The other day, I had an interesting conversation with the executive director of the Ohio Department of Commerce. He had called me in response to a complaint I filed against a broker who asked me not to make any offers on any more of her properties in the future. It was apparent that she either does not like--or does not understand--the business of wholesaling. Anyway, the complaint earned me a call from the director who told me that his department is actively pursuing wholesalers in Ohio who are not licensed to "market properties that they do not own." In other words, even though there is a purchase and sale agreement, a wholesaler needs to have a real estate license in order to market the property during the inspection period. Insane!
He called it "unlicensed activity." The funny thing is when I asked him about marketing the contract--as oppose to the property--he never responded.
Anyway, just take this as a heads up that Ohio is not playing nice. They are investigating and fining unlicensed wholesalers $1,000.00 per day per violation.
It's very sad , but true that people tend to fear what they do not understand. I wonder if wholesalers in other industries experience the same type of static?
Take care out there.
Everyone should note the lead sentence in the article includes the clause "which may be providing instructions on how to circumvent real estate license law"
@Steve Babiak @Jonny S. @Andy Argonaut The unlicensed activity on page 8 was for Property Management without a license. There is no court of law involved, only the Division of Real Estate.
I've had a few conversations with the State of Ohio Division of Real Estate about wholesaling and other typical real estate investor activities.
Back in 2007 the Division of Real Estate head Attorney explicitly stated that wholesaling by assigning a Purchase and Sale agreement did not need a license, however for an option agreement she thought it did need a license.
In Sept 2013, I had a lengthy conversation with one of the Division of Real Estate enforcement section investigators. I believe he was the lead investigator.
The summary of the conversation is as follows.
I'm not attached to the issue. I'm not in OH. I close on almost everything before marketing and reselling, and always act as a principal. I wouldn't advertise a property I didn't own for sale. I stay pretty far away from anything that could be perceived as licensed activity.
But if OH is fining people for wholesaling activities, let's find out the specific details.
Agreed. I've actually contacted the Board to see if they will provide additional details about these cases. (Yes, there's a torrential downpour going on right now, and evidently I need to refocus on actually getting some work done.... :) )
@James Wise let's take the first example. If the person in question has a contract to purchase that home for $40k and advertises it as follows:
[Contract Assignment] Home on West Side of Columbus, OH
The address is 883 Maurine Dr. Columbus, Ohio 43228. It is located in the Holly Hill subdivision. It is a 3br./2ba. w/ over 1,100 sq. ft., and a 2-car attached garage. It has a finished basement with two additional bedrooms, that would make it a total of five bedrooms, they just need closets to be added to each room. Has a laundry room. Hardwood floors. Stainless steel appliances stay with house. Needs tlc, but mainly cosmetic work.
Total cost to you (if you buy my contract and close) will be $50k for the house. Homes in the area are selling between 105-115k. This home is assessed for 105k. Here are the pictures of the house. Repair estimate is $20k.
Disclaimer: I do not own the property in question. I have a contract to purchase it and I am assigning my contract for a fee.
Please let me know asap.
Would that be above the law?
The address is 883 Maurine Dr. Columbus, Ohio 43228. It is located in the Holly Hill subdivision. It is a 3br./2ba. w/ over 1,100 sq. ft., and a 2-car attached garage. It has a finished basement with two additional bedrooms, that would make it a total of five bedrooms, they just need closets to be added to each room. Has a laundry room. Hardwood floors. Stainless steel appliances stay with house. Needs tlc, but mainly cosmetic work.
Total cost to you (if you buy my contract and close) will be $50k for the house. Homes in the area are selling between 105-115k. This home is assessed for 105k. Here are the pictures of the house. Repair estimate is $20k.
Disclaimer: I do not own the property in question. I have a contract to purchase it and I am assigning my contract for a fee.
Please let me know asap.
Would that be above the law?
@Andy Argonaut , this is the age old questions. It is real estate law vs. contract law. Agents will always favor Real Estate Law, wholesalers will always favor contract law, which allows assignments. My business partner just went through the Re courses a month ago and they said double closings are legal, and assignment are basically open to interpretation. As for marketing a property that you do not own, it seems that law states you would need a license. However, if you disclose you are only assigning a contract, then does that mean you are marketing a contract and not an actual property?
All grey, all open to interpretation.
But if OH is fining people for wholesaling activities, let's find out the specific details.
Agreed. I've actually contacted the Board to see if they will provide additional details about these cases. (Yes, there's a torrential downpour going on right now, and evidently I need to refocus on actually getting some work done.... :) )
A little google sleuthing reveals that one of the people above was an agent that is being cited for activities after his licensed was suspended. A few of the people above are connected to the same company and appeared to be operating a property mgmt company without a license.
We really need a case that shows someone who was fined for selling/assigning an option contract or marketing a property that they only had under contract.
4735.01 Real estate broker definitions.
As used in this chapter:
(A) "Real estate broker" includes any person, partnership, association, limited liability company, limited liability partnership, or corporation, foreign or domestic, who for another, whether pursuant to a power of attorney or otherwise, and who for a fee, commission, or other valuable consideration, or with the intention, or in the expectation, or upon the promise of receiving or collecting a fee, commission, or other valuable consideration does any of the following:
(1) Sells, exchanges, purchases, rents, or leases, or negotiates the sale, exchange, purchase, rental, or leasing of any real estate;
(2) Offers, attempts, or agrees to negotiate the sale, exchange, purchase, rental, or leasing of any real estate;
(3) Lists, or offers, attempts, or agrees to list, or auctions, or offers, attempts, or agrees to auction, any real estate;
(4) Buys or offers to buy, sells or offers to sell, or otherwise deals in options on real estate;
(5) Operates, manages, or rents, or offers or attempts to operate, manage, or rent, other than as custodian, caretaker, or janitor, any building or portions of buildings to the public as tenants;
(6) Advertises or holds self out as engaged in the business of selling, exchanging, purchasing, renting, or leasing real estate;
(7) Directs or assists in the procuring of prospects or the negotiation of any transaction, other than mortgage financing, which does or is calculated to result in the sale, exchange, leasing, or renting of any real estate;
(8) Is engaged in the business of charging an advance fee or contracting for collection of a fee in connection with any contract whereby the broker undertakes primarily to promote the sale, exchange, purchase, rental, or leasing of real estate through its listing in a publication issued primarily for such purpose, or for referral of information concerning such real estate to brokers, or both, except that this division does not apply to a publisher of listings or compilations of sales of real estate by their owners;
(9) Collects rental information for purposes of referring prospective tenants to rental units or locations of such units and charges the prospective tenants a fee.
IT IS NOT COMPLICATED PEOPLE. I GET IT.
@Jay Hinrichs GETS IT.
@Ben Skove GETS IT.
@Steve Babiak GETS IT.
who else gets it?
YOU WANNA MAKE MONEY SELLING REAL ESTATE YOU DON'T OWN IN OHIO?
GET A LICENSE.
It seems we're argueing two points multiple times.
Selling a property you own is perfectly legal...FSBO anyone??
Selling a contract is also legal.
ADVERTISING to sell real estate you DON'T own is not.
Obviously with all the above you better properly disclose what you're doing, otherwise you're performing an illegal activity on a legal activity.
I'm not a lawyer.
We really need a case that shows someone who was fined for selling/assigning an option contract or marketing a property that they only had under contract.
This is true. However, there is a separate issue that's also raised by the newsletter: is there going to be a change in focus going forward? In particular, it appears to be a warning for agents working with wholesalers. I'd like to get a clear statement from the Division about their current interpretation of code, as well as if there's a change in emphasis.
(Chalk it up to personal education...I'm not even a wholesaler.)
This whole thing is hilarious.
Under the common law concepts that many posters are relying on, the FDA has no authority to intervene in the business relationship between a owner of a handful of pills, and the prospective buyer. Its mah propurtaaahh!!!!
But guess what? You fight the FDA, you will lose.
I own 5 cars. Was 6 a week ago. If I sell 4 of them this year I am fine, sell a fifth and I need a license. And I actually own and have title to those.
I can assign a contract. Except when I can't. Where there is a compelling state interest (as in preventing people from being taken advantage of be unscrupulous operators) the state can and does intervene.
I happen to think Ohio has gone a bit too far. But they have the right to, and if you fight them you will lose.
Thanks for sharing this info, this is interesting news
I hope that in the future you won't need a college degree to sell real estate haha
We own every property we sell but have still decided to get licenses for everyone within our group. Te ticket will look good on LinkedIn :)
I never really was a fan of sitting down and having to memorize things of no interest. That's why I quite school at 14 lollol
Definitely need all of our wholesalers out their to keep doing what they are doing.
I have no doubt that there will be another way even if someone isn't willing to get a license.
Thanks for this update.
Have a great day.
4735.01 Real estate broker definitions.
As used in this chapter:
(A) "Real estate broker" includes any person, partnership, association, limited liability company, limited liability partnership, or corporation, foreign or domestic, who for another, whether pursuant to a power of attorney or otherwise, and who for a fee, commission, or other valuable consideration, or with the intention, or in the expectation, or upon the promise of receiving or collecting a fee, commission, or other valuable consideration does any of the following:
(1) Sells, exchanges, purchases, rents, or leases, or negotiates the sale, exchange, purchase, rental, or leasing of any real estate;
(2) Offers, attempts, or agrees to negotiate the sale, exchange, purchase, rental, or leasing of any real estate;
(3) Lists, or offers, attempts, or agrees to list, or auctions, or offers, attempts, or agrees to auction, any real estate;
(4) Buys or offers to buy, sells or offers to sell, or otherwise deals in options on real estate;
(5) Operates, manages, or rents, or offers or attempts to operate, manage, or rent, other than as custodian, caretaker, or janitor, any building or portions of buildings to the public as tenants;
(6) Advertises or holds self out as engaged in the business of selling, exchanging, purchasing, renting, or leasing real estate;
(7) Directs or assists in the procuring of prospects or the negotiation of any transaction, other than mortgage financing, which does or is calculated to result in the sale, exchange, leasing, or renting of any real estate;
(8) Is engaged in the business of charging an advance fee or contracting for collection of a fee in connection with any contract whereby the broker undertakes primarily to promote the sale, exchange, purchase, rental, or leasing of real estate through its listing in a publication issued primarily for such purpose, or for referral of information concerning such real estate to brokers, or both, except that this division does not apply to a publisher of listings or compilations of sales of real estate by their owners;
(9) Collects rental information for purposes of referring prospective tenants to rental units or locations of such units and charges the prospective tenants a fee.
IT IS NOT COMPLICATED PEOPLE. I GET IT.
@Jay Hinrichs GETS IT.
@Ben Skove GETS IT.
@Steve Babiak GETS IT.
who else gets it?
YOU WANNA MAKE MONEY SELLING REAL ESTATE YOU DON'T OWN IN OHIO?
GET A LICENSE.
LOL
Everyone should note the lead sentence in the article includes the clause "which may be providing instructions on how to circumvent real estate license law"
@Steve Babiak @Jonny S. @Andy Argonaut The unlicensed activity on page 8 was for Property Management without a license. There is no court of law involved, only the Division of Real Estate.
I've had a few conversations with the State of Ohio Division of Real Estate about wholesaling and other typical real estate investor activities.
Back in 2007 the Division of Real Estate head Attorney explicitly stated that wholesaling by assigning a Purchase and Sale agreement did not need a license, however for an option agreement she thought it did need a license.
In Sept 2013, I had a lengthy conversation with one of the Division of Real Estate enforcement section investigators. I believe he was the lead investigator.
The summary of the conversation is as follows.
This stuff about a "seller can't afford to pay an agent 6% commission so a wholesaler can save them money, they are just going around doing people favors"?????
What is that? Who in their right mind says something like that and actually believes it?
Are people forgetting that the only reason they are in the business of wholesaling is because they are trying to sell the property WAY under FMV. As in like 70% ARV. 30% is a lot bigger than 6%!
As you said it is 70% of ARV, not FMV, so the percentages have no meaning.
Simple numbers: FMV is $100K As Is. Realtor sells it with a 6% commission for full market value in a reasonable amount of time (This Realtor also takes his flying unicorn for commuting). Owner nets $94K before other closing costs.
ARV is $145K so 70% of that is $101.5K, place needs $10K to get to that ARV so the offer would be $91.5K which with no commission is what they net before any other closing costs. So less but not much less.
Of course this is assuming the Realtor gets full FMV on a place that needs a lot of work. Say they only get $97K for it, not much under list for a fixer, then the seller nets just under $91.2K. So less than the investor offer.
Also again this is assuming that the work is all cosmetic or basic maintenance that would not disqualify the house from conventional lending.
If it does not qualify then you are left with listing it but the pool are only cash retail buyers, buyers that can get (and are willing to get) a construction loan and investors.
In this case the most likely thing if they list is it sits a long time and they only get offers from investors in that $91.5K range since just because it is listed it isn’t worth any more to them. After several months of holding out since they hoped to NET closer to $94K they give in and accept the offer and after commission get about $86K. This while incurring a lot more carrying costs they would have avoided by selling right to an investor.
Obviously these are just contrived situations, but not exactly far flung ones. Of course selling to an investor will not be right for MOST people, there are plenty where it is probably a better solution than putting it on the retail market and locking in an agent commission.
(6) Advertises or holds self out as engaged in the business of selling, exchanging, purchasing, renting, or leasing real estate;
Doesn't this imply that a landlord leasing out their own properties would need a license?
@Shaun Reilly nope. That entire section applies when you do those activities "for another".
I agree, but everyone who keeps citing this ignors that point for all the "selling" type activities.
Seems my initial assumption that the unlicensed activity that received fines was incorrect ; thanks @Darrin Carey and @K.
@Account Closed for pointing out the activity types that received fines.
Good Post @Darrin Carey !
@ James Wise @ Darrin Carey @ Andy Argonaut
(6) Advertises or holds self out as engaged in the business of selling, exchanging, purchasing, renting, or leasing real estate;
That entire section applies when you do those activities "for another".
I get it but I guess I need to make sure I'm correct as to avoid any run ins with the state of Ohio so I'm asking despite being pretty sure I know the answer...
As an investor buying homes in Ohio to hold as rentals (I am not wholesaling) is it ok for me to advertise, such as on Craigslist etc, for sellers looking to sell their homes, ie: "I Buy Houses" type ads where I state I am an investor? Or would this be considered unlicensed activity since I am advertising for sellers?
Also, some of you may have seen a similar thread I posted on this so forgive me for any repeat but I was recently told by an attorney in Ohio that I could not write an offer/purchase contract for a property im buying from a FSBO or I could get in trouble for practicing real estate without a license but I have a hard time believing I can't legally make an offer to an owner for a property that I want to buy and have the means to close on. I hate to think if I have a FSBO seller that knows nothing about contracts that I would have to hire a real estate agent to write an offer for me rather then just writing it myself. Any insights on if this is still legal, just to put my mind at ease.
That attorney is being overly conservative. Of course you can buy a FSBO house yourself.
@Sheri Ulm That attorney is a "little conservative". There are no licensing restrictions that limit buying or selling personally owned real estate.
It's pretty clear to me that the Ohio Division of Real Estate enforcement section investigators is correctly targeting activities that are de-facto brokerage activities. I took the NC broker training class (*) over a decade ago. During our class, I tried to find answers to questions similar to the issue raised in this post. In NC, @Darrin's comment is along the lines of what I'd expect the NCREC to say.
The issue is that the average "wholesaler" activity involves a contract with a party that can't perform. One value added function a real estate broker brings to the transaction is buyer qualification. Can this person (or people) perform on a contractual obligation? Is the buyer ready, willing, and able to perform in a contractual capacity? In the general (streotypical?) "wholesaler" scenario, the buyer is ready, willing, and unable to perform without an unnamed assignee to fulfill the performance (closing) of the transaction.
In addition, many of these wholesale contracts contain minimally sufficient consideration. Many contracts have clauses that make the contract a unilateral "voidable" contract. While maybe not technically illegal, an average person may consider these activities as deceptive... especially when the selling party is under duress (e.g. late in payments or served for default). Many states regulate buyers activities in these scenarios, via foreclosure resue statutes, etc.
Ohio law clearly states an unlicensed person can't market a property owned by somone else. Now the question is, how does having your license help you? If you want to wholesale, and you have a license, how do you do it? What is the agency relationship? The broker is selling property owned by others, but the agent has a financial interest in the deal... and is operating in the best interest of ... the agent? This is a conflict. This self dealing will certainly raise red flags at all regulatory levels. License Law in NC, and interpretations by NCREC, say this kind of activity by a broker is improper.
Disclaimers: I don't "wholesale" (and, yes, I hate that word.) Also, like K. Marie Poe, I have no stake in Ohio real estate. Other than Lake Erie fishing;)
(*) I am not licensed, per the company's attorney recommendations
I think Lake Erie Walleye would make this discussion much better!
Guys - this is a simple formula. Think about this. You are competing with the NAR - only one of the strongest lobbies that there is. Realtors want to be the only entity to market real estate. If they've taken up arms on this, all I can say is Good Luck! NAR has better attorney than you lol:)
NAR has lost the battle with Zillow. They have to beat up on someone. May as well be wholesalers.