H. B. 3016
(By Mr. Speaker, Mr. Kiss and Delegates G. White, Beach,Beane,
Ennis, Varner, H. White, Browning,Staton, Mahan and Stalnaker)
[Passed April 9, 2005; in effect ninety days from passage.]
AN ACT to amend and reenact §30-40-5 of the Code of West
Virginia, 1931, as amended, relating to excepting the making
of appointments by secretaries of licensed real estate
brokers and salespersons with buyers and sellers or
potential buyers and sellers of real estate from the scope
of practice of real estate brokerage subject to licensing.
Be it enacted by the Legislature of West Virginia:
That §30-40-5 of the Code of West Virginia, 1931, as
amended, be amended and reenacted to read as follows:
ARTICLE 40. WEST VIRGINIA REAL ESTATE LICENSE ACT.
§30-40-5. Scope of practice; exceptions.
(a) The practice of real estate brokerage includes acting in
the capacity of a broker, associate broker or salesperson as
defined in section four of this article.
(b) The practice of real estate brokerage does not include
the activities normally performed by an appraiser, mortgage
company, lawyer, engineer, contractor, surveyor, home inspector
or other professional who may perform an ancillary service in
conjunction with a real estate transaction.
(c) The provisions of this article do not apply to:
(1) Any person acting on his or her own behalf as owner or
lessor of real estate.
(2) The regular employees of an owner of real estate, who
perform any acts regulated by this article, where the acts are
incidental to the management of the real estate: Provided, That
the employee does not receive additional compensation for the act
and does not perform the act as a vocation.
(3) Attorneys-at-law: Provided, That attorneys-at-law shall
be required to submit to the written examination required under
section twelve of this article in order to qualify for a broker's
license: Provided, however, That an attorney-at-law who is
licensed as a real estate broker prior to the first day of July,
one thousand nine hundred eighty, is exempt from the written
examination required under section twelve of this article.
(4) Any person holding, in good faith, a valid power of
attorney from the owner or lessor of the real estate.
(5) Any person acting as a receiver, trustee, administrator,
executor, guardian, conservator or under the order of any court
or under the authority of a deed of trust or will.
(6) A public officer while performing his or her official
(7) Any person acquiring or disposing of any interest in
timber or minerals, or acquiring or disposing of properties for
easements and rights-of-ways for pipelines, electric power lines
and stations, public utilities, railroads or roads.
(8) Any person employed exclusively to act as the management
or rental agent for the real estate of one person, partnership or
(9) Any person properly licensed pursuant to the provisions
of article two-c, chapter nineteen of this code when conducting
an auction, any portion of which contains any leasehold or estate
in real estate, only when the person so licensed is retained to
conduct an auction by:
(A) A receiver or trustee in bankruptcy;
(B) A fiduciary acting under the authority of a deed of
trust or will; or
(C) A fiduciary of a decedent's estate.
(10) Any person employed by a broker in a noncommissioned
secretarial or clerical capacity who may in the normal course of
employment, be required to:
(A) Disseminate brokerage preprinted and predetermined real
estate sales and rental information;
(B) Accept and process rental reservations or bookings for a
period not to exceed thirty consecutive days in a manner and
procedure predetermined by the broker;
(C) Collect predetermined rental fees for the rentals which
are to be promptly tendered to the broker;
(D) Make appointments on behalf of the broker or licensed
salesperson with buyers and sellers of real estate and potential
buyers and sellers of real estate; or
(E) Any combination thereof.