Q: I am a broker and represent both buyers and sellers. I am considering leaving the firm where I currently work. Can I take "my" listings and buyer-clients with me?

A: No. The listing or buyer agency agreement is traditionally a contract between the firm and the principal, not between an individual agent and the principal. A broker who solicits a seller or buyer to use the firm's services, or who represents a seller or buyer on behalf of the firm, acquires no "ownership" in the agency agreement between the firm and the seller or buyer. Thus, when an individual agent leaves the firm, the agent cannot take the seller or buyer client to a new company without the consent of the firm. Even if the firm consents, because listing and buyer agency agreements are contracts to provide personal services, these agreements cannot be transferred from one firm to another without the consent of the seller or  buyer as appropriate.

Q: What can I do to protect my interests when I leave a firm?

A: The Commission has long recommended that licensees affiliating with a firm (including a sole proprietor) have a written contract with the firm addressing all compensation and severance issues, including any right to solicit sellers or buyers to transfer their contracts to the departing licensee. A firm does not have to agree to allow transfer of its clients. Even if it does, the principals may choose to remain with the original firm.

Q.    I am licensed as a salesman. Do the above answers apply equally to me?

A.    No. A salesman license is valid only while the salesman is working under a broker's supervision. The salesman can never contract to represent a buyer or seller in the salesman's own name, but instead, must always contract on behalf of the broker-in-charge or firm with which the salesman is affiliated. Furthermore, because the salesman's activities must be supervised by his or her current broker-in-charge, the salesman generally cannot solicit business on behalf of a new firm prior to employment there.

Q: Are these answers any different for property management agreements?

A: No. A property management agreement is also a contract to provide personal services. These agreements cannot be transferred or sold without the mutual consent of the firm and the property owner.

Q: If the firm I am leaving is unwilling to let me solicit or transfer "my" buyer and seller clients, is there anything I can do?

A: A licensee who attempts to circumvent the rights of the firm under a valid agency contract violates the Real Estate License Law and general contract law. For example, a licensee should not:

• take short-term listings or fail to renew listing agreements, buyer agency agreements or property management agreements in anticipation of departure from the firm, without the knowledge and consent of that firm; encourage principals to breach their contractual obligations to the firm;

• withdraw listings from a listing service without the consent of the firm and the seller;

• take originals or copies of agency contracts or any other documents from the firm's office without the firm's knowledge and consent;

• steer business to a new firm while still affiliated with the old firm.

A licensee who engages in such conduct may be disciplined by the Commission and face civil liability to the firm.