H. B. 2648
(By Delegates Reed, Vest, Adkins, Carper, Doyle,
Faircloth and L. White)
[Introduced March 19, 1993; referred to the
Committee on Government Organization.]
A BILL to amend and reenact sections one, two, three, four, five,
six, seven, seven-a, eight, nine, ten, eleven, twelve,
thirteen, fourteen, fifteen, seventeen, eighteen and twenty-
three, article twelve, chapter forty-seven of the code of
West Virginia, one thousand nine hundred thirty-one, as
amended, relating to the real estate brokers licensing.
Be it enacted by the Legislature of West Virginia:
That chapter forty-seven, article twelve, sections one, two,
three, four, five, six, seven, seven-a, eight, nine, ten, eleven,
twelve, thirteen, fourteen, fifteen, seventeen, eighteen and
twenty-three, article twelve, chapter forty-seven of the code of
West Virginia, one thousand nine hundred thirty-one, as amended,
be amended and reenacted to read as follows:
ARTICLE 12. REAL ESTATE COMMISSION, BROKERS AND SALESPERSONS.
§47-12-1. Title of article; broker's or salesperson's license
required.
This article shall be known, and may be cited, as the RealEstate Brokers License Act of one thousand nine hundred fifty-
nine, and from and after the effective date of this article it
shall be unlawful for any person, partnership, association or
corporation to engage in or carry on, directly or indirectly, or
to advertise or hold himself, herself, itself or themselves out
as engaging in or carrying on the business or act in the capacity
of a real estate broker or a real estate salesman salesperson
within this state, without first obtaining a license as a real
estate broker or real estate salesman salesperson as provided for
in this article.
§47-12-2. Definitions and exceptions.
(a) The term "real estate broker" within the meaning of this
article includes all persons, partnerships, associations and
corporations, foreign and domestic, who for a fee, commission or
other valuable consideration or who with the intention or
expectation of receiving or collecting the same, lists, sells,
purchases, exchanges, rents, manages, leases or auctions any real
estate or the improvements thereon, including options, or who
negotiates or attempts to negotiate any such activity; or who
advertises or holds himself, herself, itself or themselves out as
engaged in such activities; or who directs or assists in the
procuring of a purchaser or prospect calculated or intended to
result in a real estate transaction. The term "real estate
broker" shall also include any person, partnership, association
or corporation employed by or on behalf of the owner or owners of
lots, or other parcels of real estate, at a stated salary or upona fee, commission or otherwise to sell such real estate, or any
parts thereof, in lots or other parcels, and who shall sell,
manage, exchange, lease, offer, attempt or agree to negotiate the
sale, exchange or lease of any such lot or parcel of real estate.
(b) The term "real estate" as used in this article includes
leaseholds as well as any and every interest or estate in land,
whether corporeal or incorporeal, freehold or nonfreehold, and
whether said property is situated in this state or elsewhere.
(c) The term "associate broker" means any person who for
compensation or other valuable consideration is employed by a
broker to perform all the functions authorized by a broker's
license only for and on behalf of such employing broker
including, but not limited to, authority to supervise other
salesmen salespersons employed by a broker and manage an office
on behalf of a broker.
(d) The term "real estate salesman salesperson" means and
includes any person employed or engaged by or on behalf of a
licensed real estate broker to do or deal in any activity as
included in this section, for compensation or otherwise.
(e) One act in consideration of or with the expectation or
intention of or upon the promise of receiving compensation by
fee, commission or otherwise, in the performance of any act or
activity contained in this section, constitutes such persons,
partnerships, association or corporation, a real estate broker
and make him, or her, them or it subject to the provisions and
requirements of this article.
(f) The term "real estate broker" or "real estate salesman
salesperson" shall not include any person, partnership,
association or corporation, who, as a bona fide owner or lessor,
performs any aforesaid act:
(1) With reference to property owned or leased by him or her
to the regular employees thereof, where such acts are performed
in the regular course of or as an incident to the management of,
such property and the investment therein;
(2) Nor shall this article be construed to include
attorneys-at-law, except that attorneys-at-law shall be required
to submit to the written examination required under section seven
of this article in order to qualify for a broker's license:
Provided, That an attorney-at-law who is licensed as a real
estate broker prior to the effective date of this section is
exempt from the written examination required under section seven
of this article;
(3) Nor any person holding in good faith a duly executed
power of attorney from the owner authorizing the final
consummation and execution for the sale, purchase, lease or
exchange of real estate;
(4) Nor to the acts of any person while acting as a
receiver, trustee, administrator, executor, guardian, or under
the order of any court or while acting under authority of a deed
of trust or will;
(5) Nor shall this article apply to public officers while
performing their duties as such;
(6) Nor shall this article apply to the acquisition or
disposition of coal, oil or gas leasehold or coal, oil or gas
interests.
§47-12-3. Commission created; powers generally; membership;
appointment and removal of members; qualifications;
terms; organization; salaries and expenses;
executive director and assistants; seal;
admissibility of and inspection of records;
termination of commission.
There shall be a commission known as the "West Virginia Real
Estate Commission," which commission shall be a corporation and
as such may sue and be sued, may contract and be contracted with
and shall have a common seal. The commission shall consist of
three persons to be appointed by the governor by and with the
advice and consent of the Senate. Two of such appointees each
shall have been a resident and a citizen of this state for at
least six years prior to his or her appointment and whose
vocation for at least ten years shall have been that of a real
estate broker or real estate salesman salesperson and the third
shall be a representative of the public generally. Members in
office on the date this section becomes effective shall continue
in office until their respective terms expire. The term of the
members of said commission shall be for four years and until
their successors are appointed and qualify. No more than two
members of such commission shall belong to the same political
party. No member shall be a candidate for or hold any otherpublic office or be a member of any political committee while
acting as such commissioner. In case any commissioner be a
candidate for or hold any other public office or be a member of
any political committee, his or her office as such commissioner
shall ipso facto be vacated. Members to fill vacancies shall be
appointed by the governor for the unexpired term. No member may
be removed from office by the governor except for official
misconduct, incompetency, neglect of duty, gross immorality or
other good cause shown and then only in the manner prescribed by
law for the removal by the governor of state elective officers.
The governor shall designate one member of the commission as the
chairman thereof and the members shall choose one of the members
thereof as secretary. Two members of the commission shall
constitute a quorum for the conduct of official business.
(a) The commission shall do all things necessary and
convenient for carrying into effect the provisions of this
article and may from time to time promulgate reasonable, fair and
impartial rules and regulations in accordance with the provisions
of article three, chapter twenty-nine-a of this code. The
commission shall have the authority to issue subpoenas. Each
member of the commission shall receive as full compensation for
his or her services the sum of one hundred dollars per day for
each full day actually spent on the work of the commission and
his or her actual and necessary expenses incurred in the
performance of duties pertaining to his or her office.
(b) The commission shall employ an executive secretarydirector and such clerks, investigators and assistants as it
shall deem necessary to discharge the duties imposed by the
provisions of this article and to effect its purposes, and the
commission shall determine the duties and fix the compensation of
such executive secretary director, clerks, investigators and
assistants, subject to the general laws of the state.
(c) The commission shall adopt a seal by which it shall
authenticate its proceedings. Copies of all records and papers
in the office of the commission, duly certified and authenticated
by the seal of said commission, shall be received in evidence in
all courts equally and with like effect as the original. All
records kept in the office of the commission under authority of
this article shall be open to public inspection under reasonable
rules and regulations as shall be prescribed by the commission.
(d) After having conducted a performance and fiscal audit
through its joint committee on government operations, pursuant to
section nine, article ten, chapter four of this code, the
Legislature hereby finds and declares that the West Virginia real
estate commission should be continued and reestablished.
Accordingly, notwithstanding the provisions of section four,
article ten, chapter four of this code, the West Virginia real
estate commission shall continue to exist until the first day of
July, one thousand nine hundred ninety-four.
§47-12-4. Qualifications for licenses.
(1) Licenses shall be granted only to persons who are
trustworthy, of good character and competent to transact thebusiness of a real estate broker or real estate salesman
salesperson in such manner as to safeguard the interests of the
public. Every applicant for a license as a real estate broker
shall be of the age of eighteen years or over, a citizen of the
United States and shall have served a bona fide apprenticeship as
a licensed real estate salesman salesperson for two years or
shall produce to the real estate commission satisfactory evidence
of real estate experience. No broker's license shall be issued
to a partnership, association or corporation unless each member
or officer thereof who will actively engage in the real estate
business be licensed as a real estate salesman salesperson or
associate broker, when and after said broker shall have been
granted a broker's license.
(2) A broker's or salesperson's license may be issued to any
person who is either a high school graduate or the holder of a
certificate of high school equivalency.
(3) Applicants for a broker's license shall show evidence
satisfactory to the commission that they have completed, during
the five-year period preceding the date of application, at least
one hundred eighty clock-hours (twelve credit hours) of formal
instruction in a real estate course or courses approved by the
commission. Such courses must cover real estate principles, real
estate law, real estate appraising, and real estate finance and
such other topics approved by the commission. The applicant
shall satisfactorily pass an examination or examinations covering
the material taught in each such course.
(4) Applicants for a salesperson's license shall show
evidence satisfactory to the commission that they have completed,
during the five-year period preceding the date of application, at
least ninety clock-hours (six credit hours) of formal instruction
in a real estate course or courses approved by the commission.
Such courses must cover real estate principles, real estate law,
real estate appraising, and real estate finance, and such other
topics approved by the commission. The applicant shall
satisfactorily pass an examination covering the material taught
in each such course.
(5) Subsections (3) and (4) of this section do not apply to
any applicant who holds a valid broker's or salesperson's license
issued prior to the first day of July, one thousand nine hundred
eighty. Each such applicant shall complete at least ninety
clock-hours (six credit hours) of instruction as specified in
subsection (3) of this section if he or she has not completed
the broker's examination required under section seven of this
article by the first day of July, one thousand nine hundred
eighty-two.
(6) The commission, pursuant to this section, shall publish
a list of real estate courses which are approved and shall update
such list yearly. Additionally, the commission shall, on request
of any person, evaluate a specific course or courses which are
not on the approved list and approve or disapprove such course or
courses promptly and in writing.
§47-12-5. Applications for licenses.
Every applicant for a real estate broker's license shall
apply therefor in writing upon blanks prepared by the commission
which shall contain such data and information as the commission
shall require.
(a) Such application for broker's license shall be
accompanied by the recommendation of at least two citizens who
are property owners at the time of signing said application and
have been property owners for at least twelve months preceding
such application, who have known the applicant for two years and
are not related to the applicant, certifying that the applicant
bears a good reputation for honesty and trustworthiness, and
recommending that a license be granted to the applicant.
(b) Every applicant for a salesman's salesperson's license
shall apply therefor in writing upon blanks prepared by the
commission which shall contain such data and information as the
commission may require. The application shall be accompanied by
a sworn statement by the broker in whose employ the applicant
desires to enter, certifying that, in his or her opinion, the
applicant is honest and trustworthy, and recommending the license
be granted to the applicant.
§47-12-6. Licensing nonresidents; reciprocity; consent to
service of process, etc.; manner of service;
judgment by default; bond.
A nonresident of this state may become a real estate broker
by conforming to all the provisions of this article, except that
such nonresident broker regularly engaged in the real estatebusiness as a vocation and who maintains a definite place of
business and is licensed in some other state, which offers the
same privileges to the licensed brokers of this state, shall not
be required to maintain a place of business in this state. The
commission shall recognize the license issued to a real estate
broker or salesman salesperson by another state as
satisfactorily qualifying him or her for license as a broker or
salesman salesperson: Provided, That said nonresident broker or
salesman salesperson has qualified for license in his or her own
state by written examination and also that said other state
permits license to be issued to licensed brokers or salesmen
salespersons in this state without examination. Every
nonresident applicant shall file an irrevocable written consent
that suits and actions may be commenced against such applicant in
the proper court of any county of the state in which a cause of
action growing out of a real estate transaction may arise, in
which the plaintiff may reside, by the service of any process or
pleading authorized by the laws of this state, on any member of
the commission, or the executive secretary director, said
consent stipulating and agreeing that such service of such
process or pleading shall be taken and held in all courts to be
as valid and binding as if due service had been made upon said
applicant in this state. Said consent shall be duly acknowledged
and if made by a corporation shall be authenticated by the seal
of such corporation. Any service of process or pleading shall be
by duplicate copies, one of which shall be filed in the office ofthe commission and the other immediately forwarded by registered
mail to the last-known main office of the applicant against whom
said process or pleading is directed, and no default in any such
proceeding or action shall be taken except upon certification of
the commission or the executive secretary director that a copy of
said process or pleading was mailed to the defendant as herein
required, and no judgment by default shall be taken in any such
action or proceeding until after twenty days from the date of
mailing of such process or pleading to the nonresident defendant.
(a) Before a license as a real estate broker shall be issued
to any person who does not have his or her principal place of
business in the state of West Virginia, he or she shall file with
the commission a bond in the penalty of two thousand dollars, in
form and with security to be approved by the commission and
conditioned so as to be for the benefit of and to indemnify any
person in the state who may have any cause of action against the
principal.
(b) Before a license as a real estate salesman salesperson
shall be issued to any person who is not a bona fide resident of
this state, whether he or she be an employee of a resident or a
nonresident real estate broker, such applicant shall file with
the commission a bond such as is herein required to be filed by
a nonresident broker.
§47-12-7. Written examinations required; exceptions;
requirements for reissuance of revoked license;
reexamination after failure; examination where
applicant a partnership, etc.; issuance of
license.
In addition to proof of honesty, trustworthiness, good
character and good reputation of any applicant for a license, the
applicant shall submit to a written examination to be conducted
by the commission which shall include reading, writing, spelling,
elementary arithmetic, a general knowledge of the statutes of
this state relating to real property, deeds, mortgages,
agreements of sale, agency contract, leases, ethics, appraisals
and the provisions of this article: Provided, That any person
who has been actively engaged in the real estate business as a
real estate broker or real estate salesman salesperson within the
year preceding the effective date of this article and is thus
engaged in this state at the time this article goes into effect,
may secure a license as a real estate broker or a salesman
salesperson without an examination: Provided, however, That such
person shall make application to the commission for registration
within ninety days after the effective date of this article. The
examination for a broker's license shall differ from the
examination for a salesman's salesperson's license in that it
shall be of a more exacting nature and require higher standards
of knowledge of real estate. The commission shall conduct
examinations at such times and places as it shall determine.
(a) In event the license of any real estate broker or
salesman salesperson shall be revoked by the commission,
subsequent to the enactment of this article, no new license shallbe issued to such person unless he or she complies with the
provisions of this article.
(b) No person shall be permitted or authorized to act as a
real estate broker until he or she has qualified by examination,
except as hereinbefore provided. Any individual who fails to
pass the examination upon two occasions shall be ineligible for
a similar examination until after the expiration of three months
from the time such individual took the last examination and then
only upon making application as in the first instance.
(c) If the applicant is a partnership, association or
corporation said examination shall be submitted to on behalf of
said partnership, association or corporation by the member or
officer thereof who is designated in the application as the
person to receive a license by virtue of the issuing of a license
to the partnership, association or corporation.
(d) Upon satisfactorily passing such examination and upon
complying with all other provisions of law and conditions of this
article a license shall thereupon be issued to the successful
applicant and upon receiving such license is authorized to
conduct the business of a real estate broker or real estate
salesman salesperson in this state. A person who has qualified
for a real estate license, as provided above, is considered to be
a professional in his or her trade.
§47-12-7a. Continuing education; license renewal.
In addition to other provisions of this article, beginning
the first day of July, one thousand nine hundred ninety, andevery year thereafter, every real estate broker and salesperson
shall complete seven actual hours of continuing education, with
each hour equaling fifty minutes of instructions. The commission
shall establish the continuing education program by rules and
shall approve all courses, seminars and lectures: Provided, That
real estate related continuing legal education courses approved
by the West Virginia state bar shall be approved by the
commission. If approved in advance by the real estate
commission, correspondence courses and audio or video tapes may
be used to satisfy the continuing education requirement.
Upon application for renewal of a real estate license in
each year following one thousand nine hundred ninety, such real
estate broker or salesperson must furnish satisfactory evidence,
as established by the commission, that he or she has completed
the required number of continuing education hours: Provided,
That a real estate broker or salesperson holding a license on the
first day of July, one thousand nine hundred sixty-nine, and
continuously thereafter, shall be exempt from continuing
education requirements. When a real estate broker or salesperson
in an inactive status reverts to an active status, he or she will
obtain seven hours continuing education each year without being
required to complete additional hours of education resulting from
his or her inactive status.
§47-12-8. Place of business; display of certificates of
registration; notice of change of address; branch
offices; change of employer or employment by real
estate salespersons.
Every person, partnership, association or corporation
licensed as a real estate broker shall be required to have and
maintain a definite place of business within this state, which
shall be a room or rooms used for the transaction of the real
estate business, or such business and any allied business. The
certificate of registration as broker and the certificate of each
real estate salesman salesperson employed by such broker shall be
prominently displayed in said office. The said place of business
shall be designated in the license, and no license issued under
the authority of this article shall authorize the licensee to
transact business at any other address. In case of removal from
the designated address, the licensee shall make application to
the commission before said removal or within ten days after said
removal, designating the new location of such office, whereupon
the commission shall forthwith issue a new license for the new
location for the unexpired period, if said new location is
satisfactory, upon return to the commission of the license
previously issued.
(a) Each and every branch office owned or operated by a duly
licensed broker shall be supervised and operated by a licensed
broker or licensed salesman salesperson.
(b) All licenses issued to real estate salesman salesperson
shall designate the employer of such salesman salesperson.
Prompt notice in writing, within ten days, shall be given to the
commission by any real estate salesman salesperson of a change ofemployer, and of the licensed broker into whose employ the
salesman salesperson is about to enter, and a new license shall
thereupon be issued by the commission to such salesman
salesperson for the unexpired term of the original license, upon
return to the commission of the license previously issued. The
change of employer or employment by any licensed real estate
salesman salesperson, without notice to the commission, as
aforesaid, shall automatically cancel the license to him or her
theretofore issued. Upon termination of a salesman's
salesperson's employment, the broker employer shall forthwith
return the salesman's salesperson's license to the commission for
cancellation. It shall be unlawful for any real estate salesman
salesperson to perform any of the acts contemplated by this
article either directly or indirectly after his or her employment
has been terminated and license as a salesman salesperson has
been returned for cancellation until said license has been
reissued by the commission.
§47-12-9. Fees.
To pay for the maintenance and operation of the office of
the commission and the enforcement of this article, the
commission shall charge the following fees and collect
appropriate fees for its services.
(a) Examination fee - twenty-five dollars, with no
additional fee for second examination.
(b) Investigation fee - ten dollars.
(c) Broker's license - fifty dollars.
(d) Salesperson's license - twenty-five dollars.
(e) Broker's renewal fee - fifty dollars, payable by the
thirtieth day of June of each year.
(f) Salesperson's renewal fee - twenty-five dollars, payable
by the thirtieth day of June of each year.
(g) Branch office fee - fifty dollars.
(h) Renewal of branch office license - five dollars.
(i) Transfer of salesperson's license - ten dollars.
(j) Duplicate license or certification - five dollars.
(k) Change of name - five dollars.
(l) Change of office - ten dollars.
Willful Failure or neglect to pay any of the fees required
under this article is just cause for revocation of or refusal to
issue or renew a license.
§47-12-10. Disposition of fees; real estate license fund;
expenditures by commission.
All fees charged and collected under this article shall be
paid by the executive secretary director at least once a month
into the treasury of the state to credit of a fund to be known as
the "real estate license fund," which is hereby created. All
moneys which shall be paid into the state treasury and credited
to the "real estate license fund" are hereby appropriated to the
use of the commission in carrying out the provisions of this
article, including the payment of salaries and expenses and the
printing of an annual directory of licensees and for educational
purposes.
(a) The amount paid to or expended by the commission shall
not exceed the revenues derived under the provisions of this
article as hereinbefore provided.
§47-12-11. Procedure and grounds for refusal, suspension or
revocation of license.
(a) The commission may upon its own motion, and shall, upon
the verified complaint in writing of any person setting forth a
cause of action under this section, ascertain the facts and if
warranted hold a hearing for the suspension or revocation of a
license. The commission shall have full power to may, by order,
refuse a license for reasonable cause or to revoke or suspend a
license where it has been obtained by false or fraudulent
representation, or where the licensee in performing or attempting
to perform any of the acts mentioned herein, is deemed to be
guilty of: to issue or renew a license, or may suspend or revoke
an existing license, if the applicant or licensee:
(1) Obtains, renews or attempts to obtain or renew a license
through the submission of any application or other writing that
contains false or fraudulent information;
(1) (2) Making Makes any substantial misrepresentation; or
(2) (3) Making Makes any false promises or representations
of a character likely to influence, persuade, or induce a person
involved in a real estate transaction; or
(3) (4) Pursuing Pursues a continued or flagrant course of
misrepresentation, or making of makes false promises or
representations through agents or salesmen salespersons or anymedium of advertising or otherwise; or
(4) (5) Any Uses misleading or untruthful false advertising,
including the unauthorized use of the term "realtor" by one not
a member of the national association of real estate boards or
using uses any other trade name or insignia of membership in any
real estate organization, of in which the applicant or licensee
is not a member; or
(5) (6) Acting Acts for more than one party in a transaction
without the knowledge of all parties for whom he or she acts; or
(6) (7) Failing Fails within a reasonable time, to account
for or to remit any moneys coming into his or her possession
which belong belonging to others, or commingling of commingles
moneys belonging to others with his or her own funds; or
(7) Conviction in a court of competent jurisdiction of this
or any other state of forgery, embezzlement, obtaining money
under false pretense, extortion, conspiracy to defraud or other
like offense or offenses, or
(8) Of displaying Displays a "for sale" or "for rent" sign
on any property without an agency therefor or without the owner's
consent; or
(9) Fails to disclose in writing to all parties to a real
estate transaction, on the form promulgated by the commission,
whether the licensee is representing the seller, the buyer or
both;
(9) (10) Of failing Fails to furnish voluntarily furnish
copies of a notice of agency disclosure, and all listingagreements, and agreement of sale contracts, and lease agreements
to all parties executing the same; or
(10) (11) Paying Pays or receiving receives any rebate,
profit, compensation, or commission as a result of a real estate
transaction from any person other than his or her principal; or
(11) (12) Inducing Induces any party to a contract, sale, or
lease to break such contract for the purpose of substituting in
lieu thereof a new enter into another contract, in lieu thereof,
where such substitution is motivated by for the personal gain of
the applicant or licensee; or
(12) (13) Accepting Accepts a commission or other valuable
consideration as a real estate salesman salesperson for the
performance of any of the acts specified in this article, from
any person, except other than his or her employer, who must be a
licensed real estate broker; or
(13) Any act or conduct, whether of the same or different
character than hereinabove specified, which constitutes or
demonstrates bad faith, incompetency or untrustworthiness, or
dishonest, fraudulent, or improper dealing, or
(14) Paid Pays a commission or other valuable consideration
to any persons person for acts or services performed in violation
of this article, or either in violation of this article or the
real estate licensure laws of any other state;
(15) The Engages in the unlawful or unauthorized practice of
law as defined by the supreme court of appeals of West Virginia;
or
(16) Procuring Procures an attorney for any customer or
soliciting solicits legal business for any attorney-at-law;
(17) Engages in any act or conduct which constitutes or
demonstrates bad faith, incompetency or untrustworthiness, or
dishonest, fraudulent or improper dealing;
(18) Has been convicted in a court of competent jurisdiction
in this or in any other state of forgery, embezzlement, obtaining
money under false pretense, extortion, conspiracy to defraud or
of any other like offense;
(19) Has been convicted in a court of competent jurisdiction
in this or any other state of a felony or a crime involving moral
turpitude.
(b) As used in this section:
(1) The words "convicted in a court of competent
jurisdiction" mean a plea of guilty or nolo contendere entered by
a person or a verdict of guilt returned against a person at the
conclusion of a trial;
(2) A certified copy of a guilty verdict or plea entered in
such court is sufficient evidence to demonstrate a person has
been convicted in a court of competent jurisdiction.
§47-12-12. Notice of commission order; conduct of hearing.
Upon complaint initiated by the commission or filed with it,
the licensee shall be given ten days' written notice of hearing
upon the charges filed, together with a copy of the complaint.
Upon any order by the commission which denies, suspends or
revokes any license, written notice to the applicant or licenseemust be provided within ten days of the date of any such order.
Notice properly deposited with the United States postal service
shall be sufficient for the purpose of this section.
The applicant or licensee shall have the right to request a
hearing on any adverse order rendered by the commission. No
order of the commission which suspends or revokes a license shall
take effect until after the time for requesting a hearing has
expired. The applicant or licensee shall make a written request
for such hearing within thirty days of the date of the original
order. The applicant or licensee requesting a hearing shall be
given ten days written notice of hearing. This The applicant or
licensee shall have an opportunity to be heard thereon in person,
to offer testimony in his or her behalf and to examine the
witnesses. appearing in connection with the complaint The
hearing shall be conducted in accordance with the provisions of
article five, chapter twenty-nine-a of this code, and all rights,
procedures and duties contained therein shall be observed.
§47-12-13. Appeals.
Any applicant or licensee, or person aggrieved, shall have
the right of appeal from any adverse ruling, order, or decision
of the commission to the circuit court of the county where the
hearing was held, within thirty days from the service of notice
of the action of the commission upon the parties in interest.
(a) Notice of appeal shall be filed in the office of the
clerk of the circuit court wherein the hearing was held, who
shall issue a writ of certiorari directed to the commission,commanding it, within ten days after service thereof, to certify
to such court, its entire record in the matter in which the
appeal has been taken. The appeal shall thereupon be heard, in
due course, by said court, which shall review the record and make
its determination of the cause between the parties.
(b) In the event an appeal is taken by a licensee or
applicant, such an appeal shall not stay enforcement of the
commission's order or decision or act as a supersedeas thereof
unless otherwise ordered by the circuit court.
(c) Any person taking an appeal shall post a satisfactory
bond in the amount of two hundred dollars for the payment of any
costs which may be adjudged against him or her.
(d) Appeal may be taken from the circuit court to the
supreme court of appeals by manner prescribed by law.
§47-12-14. Real estate courses for licensees; assisting
studies, surveys, etc.
(a) The commission is authorized to conduct, or hold or to
assist in conducting or holding real estate courses or
institutes. The commission may incur and pay the necessary
expenses in connection therewith. Such courses or institutes are
open to any licensee. without charge or fee
(b) The commission is hereby authorized to assist libraries,
real estate institutes and foundations with financial aid or
otherwise, in providing texts, sponsoring studies, surveys and
programs for the benefit of real estate and the elevation of the
real estate business.
(c) The commission shall provide correspondence courses for
applicants for brokers' and salespersons' licenses sufficient to
meet the educational requirements contained in subsections (3)
and (4), section four of this article as an alternative means of
meeting said educational requirements.
§47-12-15. Executive director's bond.
The executive secretary director appointed by the commission
shall give bond in such sum with surety as the commission may
direct and approve.
§47-12-17. Actions for commissions; revocation of broker's
license as suspending salesperson's licenses;
listing agreements; broker or salesperson to
disclose agency status; purchase agreements.
No person, partnership, association or corporation shall
bring or maintain an action in any court of this state for the
recovery of a commission, a fee, or compensation for any act done
or service rendered, the doing or rendering of which is
prohibited under the provisions of this article to other than
licensed real estate brokers, unless such person was duly
licensed hereunder as a real estate broker at the time of the
doing of such act or the rendering of such service.
(a) No real estate salesperson shall have the right to
institute suit in his or her own name for the recovery of a fee,
commission, or compensation for the services as a real estate
salesperson, but any such action shall be instituted and brought
by the broker employing such salesperson: Provided, That a realestate salesperson shall have the right to institute suit in his
or her own name for the recovery of a fee, commission or
compensation for services as a real estate salesperson due him or
her from the broker by whom he or she is employed.
(b) The revocation of a broker's license shall automatically
suspend every real estate salesperson's license granted to any
person by virtue of his or her employment by the broker whose
license has been revoked, pending a change of employer and the
issuance of a new license. Such new license shall be issued
without charge if granted during the same year in which the
original license was granted.
(c) A broker or salesperson who obtains a listing shall, at
the time of securing such listing, give the person or persons
signing such listing a true, legible copy thereof. Every listing
agreement, exclusive or nonexclusive, shall have set forth in its
terms a definite expiration date; it shall contain no provision
requiring the party signing such listing to notify the broker of
his or her intention to cancel such listing after such definite
expiration date; however, an exclusive listing agreement may
provide that upon the expiration of the exclusive feature the
listing shall continue to a definite expiration date as a
nonexclusive listing only. No provision shall be inserted in any
listing agreement which would obligate the person, partnership,
association or corporation signing such listing to pay a
commission or other valuable consideration to the broker after
such expiration date if the property is then listed by adifferent broker. However if there is a currently enforceable
offer to purchase pending on the listed property at the time of
the listing's expiration, or if any other prospective purchasers
have been excluded from the subsequent listing contract, the
first preceding broker may still be entitled to a commission or
other valuable consideration.
(d) A broker or salesperson shall promptly, or at least
prior to any purchaser signing a written offer to purchase,
disclose in writing to all parties to a real estate transaction,
on a form promulgated by the commission, whether the broker or
salesperson represents the seller, the buyer, or both. Provided,
That after such disclosure, but prior to any purchaser signing a
written offer to purchase, the party not represented by the
broker or salesperson may terminate, without incurring any
liability, his or her relationship with such broker or
salesperson
(e) A broker or salesperson shall promptly tender to the
seller every written offer to purchase obtained on the property
involved and, upon obtaining a proper acceptance of the offer to
purchase, shall promptly deliver true executed copies of same,
signed by the seller and purchaser, to both purchaser and seller;
all brokers and salespersons shall make certain that all of the
terms and conditions of the real estate transaction are included
in such offer to purchase.
§47-12-18. Trust fund accounts; records.
Every person, partnership or corporation holding a broker'slicense under provisions of the real estate license law who does
not immediately place all funds entrusted to him or her by his or
her principal or others in a neutral escrow depository or in the
hands of principals, shall maintain a trust fund account with
some bank or recognized depository and place all such entrusted
funds therein upon receipt.
Said trust fund account shall designate him or her as
trustee and all such trust fund accounts must provide for
withdrawal of the funds without previous notice.
Every broker required to maintain such trust fund account
shall keep records of all funds deposited therein, which records
shall clearly indicate the date and from whom he or she received
the money, date deposited, date of withdrawals, and other
pertinent information concerning the transaction, and shall
clearly show for whose account the money is deposited and to whom
the money belongs.
All such records and funds shall be subject to inspection by
the commission.
§47-12-23. Duration of existing licenses.
All licenses issued either to a real estate broker or real
estate salesman salesperson preceding the effective date of this
article, shall be valid until June thirtieth, one thousand nine
hundred fifty-nine, in absence of any reason appearing to the
commission to cancel and withdraw any license issued by it, for
violation of any provisions of this article.
NOTE: The purpose of this bill is to make it unlawful for
any person, partnership, association or corporation to engage in
or carry on, directly or indirectly or act in the capacity of a
real estate broker without first obtaining a license as a real
estate broker or real estate salesperson.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.