Real estate sales agent: control the status

At the drafting stage of the real estate sales agent contract

1/ We will be the guarantors of compliance with the Hoguet law which regulates certain transactions relating to buildings and businesses: it provides that non-employee agents of real estate agencies have the status of commercial agent.

If these commercial real estate agents are subject to the common law of commercial agents, whose status is defined in Articles L. 134-1 to L. 134-17 of the Commercial Code, the Hoguet law creates specific obligations for commercial agents of real estate agencies.

When drafting your commercial real estate agent contract, we will ensure that your agents, to comply with the HOGUET law:

• may only exercise in their own name,

• are not authorized, contrary to their principal, to:

• establish compromises, promises of sale or leases,

• drafting deeds under private signature,

• collect payments from customers,

• giving legal advice,

• undertake to permanently hold a prefectural certificate empowering them to negotiate and make the real estate transaction (this delegate card is requested for them from the CCI by their principal and consists practically of a duplicate in the name of the Commercial Agent of the real estate transaction card of the principal real estate agency),

• justify at any time a Professional Civil Liability insurance – RCP (decree of June 29, 2015 taken in application of the ALLUR law)

• demonstrate the required professional competence,

• meet their legal obligation for continuing professional development.

2/ We will be the guarantors of the control of the risk, during the drafting of the real estate sales agent contract, of the requalification of the relationship into an employment contract.

Real estate sales agents are indeed independent professionals. But if they are subject to a subordination relationship vis-à-vis their principals, they may request to be reclassified as employees.

Our editorial staff will be careful to recall the criteria of this independence: freedom to organize their day, work, which implies freedom of agenda management, freedom of access to the premises, no obligation to hold permanent duty, etc.

3/ However, the contract must make it possible to enforce its own commitments that the real estate agent makes to its principals, sellers or buyers and reflect its commercial and remuneration policy.

To do this, we exchange around a questionnaire to discuss with you everything that must be organized in the relationship with the commercial real estate agent: obligation to respect your standard mandates, your fee schedule, commissioning rules (rate, base, payment), exclusives (non-competition), etc. For each question, we explain the possible alternatives, their advantages and disadvantages, to help you make the right choices.

At the stage of litigation with the real estate sales agent

Most disputes involve:

• the non-payment of commissions because the principal often disputes the right to commission of the real estate commercial agent who either has not co-signed the mandates he has obtained and which are concluded between the real estate agency and his principal, or has not made tenants or buyers sign visiting vouchers (or not mentioning_or not sufficiently) their contact details),

• the right to customer compensation at the end of the contract: in principle, the agent considers that he has not resigned or has not committed serious misconduct depriving him of compensation, or the amount of this compensation being the subject of a disagreement,

• the reclassification of the real estate sales agent contract as an employment contract, when the sales agent, who has a financial interest in it, considers that he has been subject to a relationship of subordination vis-à-vis the real estate agent.

Our law firm, which practices commercial agent law, has developed, in contact with its clients, national networks of real estate agents or independent agents, significant expertise in real estate commercial agent law.