Is wholesaling illegal without being a broker or owning title?

Question

Hi, ive been wanting to start out in the REI game through wholesaling properties, but have come across some information on BP that it is illegal unless your a licensed broker or have a mass amount of knowledge and skill sets to do so, any and all feedback will be awesome! Thanks

William C. · Answer

@Christian Hunter Depends who your asking.   Unlicensed wholesalers will say it’s legal.  So will the guru trying to sell you the course for 9 easy payments of $999.99 that is a step by step guide on how to wholesale, minus all the practical and tactical advice in what to actually do once your in the field trying to meet and talk to sellers, let alone put a deal under contract and attempt to flip your “position” for $10-20k more.   The theory is so enticing to newcomers with no money and no idea where to start.  Im making it a personal mission to spread the truth about the real estate business and what it actually takes to be successful.  Money and experience are for sure, definitely, 100% no doubt about it needed to even sniff what it might be like to be “successful at real estate”.  If you think wholesaling is a quick and easy way to get in the game without working hard and throwing down massive amounts of cash your mistaken.  Legal or not is a flawed mindset.  Sorry, end rant.

Charlie MacPherson · Answer

@Christian Hunter It depends on the laws of the state you're working in.

Here in MA and in ME where I just passed the real estate exam, it's unequivocally illegal without a license - even if you're just selling a contract or your position in a contract.  I've also reviewed the real estate laws in MI and CA where I found the same.

My advice is to dig into the laws of your state and read them for yourself.

For what it's worth, I found it embarrassingly easy to pass both the MA and ME real estate license exams.  I walked away from both thinking that a drunk monkey with a bit of a working memory could pass.  (No offense meant to monkeys, sober or not)

Steve Vaughan · Answer

It is unlawful to sell or wholesale PROPERTIES you don't own without a license.

I don't think it is unlawful to sell or wholesale your position in a contract.

Most dont know enough to limit thier activities to the contract only. It takes knowledge and skill either way, wholesaling more so than any other niche I know of.  Perfect for new folks. LOL

Nick C. · Answer

If you're getting conflicting advice from the info on BP, you'll probably get more conflicting advice by asking for it on the forums. Those that are wholesaling and gurus will tell you it's legal. There who aren't wholesaling or guruing that will tell you it's illegal.

You can ask a lawyer, but depending on who you speak to you're likely to get differing advice there too. Sorry I couldn't be more help, but the best way to answer this question is figure out what you'd specifically like to do and then read the laws of your state, and come to your own conclusion. Then you can argue with strangers on BP about the legalities of wholesaling...

Jim Cummings · Answer

@Christian Hunter. The concepts of Wholesaling are legal in Texas. However, there is much to know and understand. In general, you are allowed to wholesale the Contract you have with Seller. You are NOT allowed to wholesale the house or advertise the property without a License.

As an Independent Broker, I'm not comfortable with Agents trying to be a Wholesaler. Now if you have sufficient funds to Close on property with Seller, and then put property on market for resale, that is something I would consider allowing.

Christian Hunter · Answer

Man,  joining BP is the best move a newbie could make, ya'll are full of very considerable information, thanks for the responses! Ill take it all into consideration and look into my states laws and try not to step on any Brokers toes. I believe it would most definitely be the wisest decision to just get licensed, im going to look into that also. Thank you so much BP community!

James Wise · Answer

There may be a random state or 2 that has drastically different laws than the others but more or less the answer is yes it's illegal to sell a property you don't own unless you are a broker.

As an example below are the laws for Ohio. This is directly from the Ohio Revised Code. You can expect similar laws in all other states.

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Chapter 4735: REAL ESTATE BROKERS

4735.01 [Effective Until 3/20/2019] 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.

(B) "Real estate" includes leaseholds as well as any and every interest or estate in land situated in this state, whether corporeal or incorporeal, whether freehold or nonfreehold, and the improvements on the land, but does not include cemetery interment rights.

(C) "Real estate salesperson" means any person associated with a licensed real estate broker to do or to deal in any acts or transactions set out or comprehended by the definition of a real estate broker, for compensation or otherwise.

(D) "Institution of higher education" includes all of the following:

(1) A state institution of higher education, as defined in section 3345.011 of the Revised Code;

(2) A nonprofit institution issued a certificate of authorization under Chapter 1713. of the Revised Code ;

(3) A private institution exempt from regulation under Chapter 3332. of the Revised Code, as prescribed in section 3333.046 of the Revised Code.

(4) An institution with a certificate of registration from the state board of career colleges and schools under Chapter 3332. of the Revised Code that is approved to offer degree programs in accordance with section 3332.05 of the Revised Code.

(E) "Foreign real estate" means real estate not situated in this state and any interest in real estate not situated in this state.

(F) "Foreign real estate dealer" 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 or deals in any act or transaction specified or comprehended in division (A) of this section with respect to foreign real estate.

(G) "Foreign real estate salesperson" means any person associated with a licensed foreign real estate dealer to do or deal in any act or transaction specified or comprehended in division (A) of this section with respect to foreign real estate, for compensation or otherwise.

(H) Any person, partnership, association, limited liability company, limited liability partnership, or corporation, who, for another, in consideration of compensation, by fee, commission, salary, or otherwise, or with the intention, in the expectation, or upon the promise of receiving or collecting a fee, does, or offers, attempts, or agrees to engage in, any single act or transaction contained in the definition of a real estate broker, whether an act is an incidental part of a transaction, or the entire transaction, shall be constituted a real estate broker or real estate salesperson under this chapter.

(I)

(1) The terms "real estate broker," "real estate salesperson," "foreign real estate dealer," and "foreign real estate salesperson" do not include a person, partnership, association, limited liability company, limited liability partnership, or corporation, or the regular employees thereof, who perform any of the acts or transactions specified or comprehended in division (A) of this section, whether or not for, or with the intention, in expectation, or upon the promise of receiving or collecting a fee, commission, or other valuable consideration:

(a) With reference to real estate situated in this state owned by such person, partnership, association, limited liability company, limited liability partnership, or corporation, or acquired on its own account in the regular course of, or as an incident to the management of the property and the investment in it;

(b) As receiver or trustee in bankruptcy, as guardian, executor, administrator, trustee, assignee, commissioner, or any person doing the things mentioned in this section, under authority or appointment of, or incident to a proceeding in, any court, or as a bona fide public officer, or as executor, trustee, or other bona fide fiduciary under any trust agreement, deed of trust, will, or other instrument that has been executed in good faith creating a like bona fide fiduciary obligation;

(c) As a public officer while performing the officer's official duties;

(d) As an attorney at law in the performance of the attorney's duties;

(e) As a person who engages in the brokering of the sale of business assets, not including the sale, lease, exchange, or assignment of any interest in real estate;

(f) As a person who engages in the sale of manufactured homes as defined in division (C)(4) of section 3781.06 of the Revised Code, or of mobile homes as defined in division (O) of section 4501.01 of the Revised Code, provided the sale does not include the negotiation, sale, lease, exchange, or assignment of any interest in real estate;

(g) As a person who engages in the sale of commercial real estate pursuant to the requirements of section 4735.022 of the Revised Code.

(2) A person, partnership, association, limited liability company, limited liability partnership, or corporation exempt under division (I)(1)(a) of this section shall be limited by the legal interest in the real estate held by that person or entity to performing any of the acts or transactions specified in or comprehended by division (A) of this section.

(J) "Disabled licensee" means a person licensed pursuant to this chapter who is under a severe disability which is of such a nature as to prevent the person from being able to attend any instruction lasting at least three hours in duration.

(K) "Division of real estate" may be used interchangeably with, and for all purposes has the same meaning as, "division of real estate and professional licensing.

(L) "Superintendent" or "superintendent of real estate" means the superintendent of the division of real estate and professional licensing of this state. Whenever the division or superintendent of real estate is referred to or designated in any statute, rule, contract, or other document, the reference or designation shall be deemed to refer to the division or superintendent of real estate and professional licensing, as the case may be.

(M) "Inactive license" means the license status in which a salesperson's license is in the possession of the division, renewed as required under this chapter or rules adopted under this chapter, and not associated with a real estate broker.

(N) "Broker's license on deposit" means the license status in which a broker's license is in the possession of the division of real estate and professional licensing and renewed as required under this chapter or rules adopted under this chapter.

(O) "Suspended license" means the license status that prohibits a licensee from providing services that require a license under this chapter for a specified interval of time.

(P) "Reactivate" means the process prescribed by the superintendent of real estate and professional licensing to remove a license from an inactive, suspended, or broker's license on deposit status to allow a licensee to provide services that require a license under this chapter.

(Q) "Revoked" means the license status in which the license is void and not eligible for reactivation.

(R) "Commercial real estate" means any parcel of real estate in this state other than real estate containing one to four residential units. "Commercial real estate" does not include single-family residential units such as condominiums, townhouses, manufactured homes, or homes in a subdivision when sold, leased, or otherwise conveyed on a unit-by-unit basis, even when those units are a part of a larger building or parcel of real estate containing more than four residential units.

(S) "Out-of-state commercial broker" includes any person, partnership, association, limited liability company, limited liability partnership, or corporation that is licensed to do business as a real estate broker in a jurisdiction other than Ohio.

(T) "Out-of-state commercial salesperson" includes any person affiliated with an out-of-state commercial broker who is not licensed as a real estate salesperson in Ohio.

(U) "Exclusive right to sell or lease listing agreement" means an agency agreement between a seller and broker that meets the requirements of section 4735.55 of the Revised Code and does both of the following:

(1) Grants the broker the exclusive right to represent the seller in the sale or lease of the seller's property;

(2) Provides the broker will be compensated if the broker, the seller, or any other person or entity produces a purchaser or tenant in accordance with the terms specified in the listing agreement or if the property is sold or leased during the term of the listing agreement to anyone other than to specifically exempted persons or entities.

(V) "Exclusive agency agreement" means an agency agreement between a seller and broker that meets the requirements of section 4735.55 of the Revised Code and does both of the following:

(1) Grants the broker the exclusive right to represent the seller in the sale or lease of the seller's property;

(2) Provides the broker will be compensated if the broker or any other person or entity produces a purchaser or tenant in accordance with the terms specified in the listing agreement or if the property is sold or leased during the term of the listing agreement, unless the property is sold or leased solely through the efforts of the seller or to the specifically exempted persons or entities.

(W) "Exclusive purchaser agency agreement" means an agency agreement between a purchaser and broker that meets the requirements of section 4735.55 of the Revised Code and does both of the following:

(1) Grants the broker the exclusive right to represent the purchaser in the purchase or lease of property;

(2) Provides the broker will be compensated in accordance with the terms specified in the exclusive agency agreement or if a property is purchased or leased by the purchaser during the term of the agency agreement unless the property is specifically exempted in the agency agreement.

The agreement may authorize the broker to receive compensation from the seller or the seller's agent and may provide that the purchaser is not obligated to compensate the broker if the property is purchased or leased solely through the efforts of the purchaser.

(X) "Seller" means a party in a real estate transaction who is the potential transferor of property. "Seller" includes an owner of property who is seeking to sell the property and a landlord who is seeking to rent or lease property to another person.

(Y) "Resigned" means the license status in which a license has been voluntarily and permanently surrendered to or is otherwise in the possession of the division of real estate and professional licensing, may not be renewed or reactivated in accordance with the requirements specified in this chapter or the rules adopted pursuant to it, and is not associated with a real estate broker.

(Z) "Bona fide" means made in good faith or without purpose of circumventing license law.

(AA) "Associate broker" means an individual licensed as a real estate broker under this chapter who does not function as the principal broker or a management level licensee.

(BB) "Brokerage" means a corporation, partnership, limited partnership, association, limited liability company, limited liability partnership, or sole proprietorship, foreign or domestic,that has been issued a broker's license. "Brokerage" includes the affiliated licensees who have been assigned management duties that include supervision of licensees whose duties may conflict with those of other affiliated licensees.

(CC) "Credit-eligible course" means a credit or noncredit-bearing course that is both of the following:

(1) The course is offered by an institution of higher education.

(2) The course is eligible for academic credit that may be applied toward the requirements for a degree at the institution of higher education.

(DD) "Distance education" means courses required by divisions (B)(6) and (G) of section 4735.07, divisions (F)(6) and (J) of section 4735.09, and division (A) of section 4735.141 of the Revised Code in which instruction is accomplished through use of interactive, electronic media and where the teacher and student are separated by distance or time, or both.

(EE) "Licensee" means any individual licensed as a real estate broker or salesperson by the Ohio real estate commission pursuant to this chapter.

(FF) "Management level licensee" means a licensee who is employed by or affiliated with a real estate broker and who has supervisory responsibility over other licensees employed by or affiliated with that real estate broker.

(GG) "Principal broker" means an individual licensed as a real estate broker under this chapter who oversees and directs the operations of the brokerage.

Amended by 131st General Assembly File No. TBD, HB 532, §1, eff. 4/6/2017.

Amended by 129th General AssemblyFile No.127, HB 487, §101.01, eff. 9/9/2012.

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

Effective Date: 04-05-2002; 10-12-2006; 2008 HB562 09-22-2008 .

4735.01 [Effective 3/20/2019] Real estate broker definitions.