H. B. 2777
(By Delegates Faircloth, Beach and Burke)
[Introduced February 24, 1995; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section one, article two-c, chapter
nineteen of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; and to amend and reenact
section two, article twelve, chapter forty-seven of said
code, all relating to allowing licensed real estate brokers
who are not also licensed auctioneers and licensed
auctioneers who are not also licensed real estate brokers to
auction real estate when retained by certain fiduciaries.
Be it enacted by the Legislature of West Virginia:
That section one, article two-c, chapter nineteen of the
code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; and that section two, article
twelve, chapter forty-seven of said code be amended and
reenacted, all to read as follows:
CHAPTER 19. AGRICULTURE.
ARTICLE 2C. AUCTIONEERS.
For the purposes of this article:
(a) The term "auctioneer" means and includes a person who
sells goods or real estate at public auction for another on
commission or for other compensation. The term "auctioneer" does
not include: (1) Persons conducting sales at auctions conducted
by or under the direction of any public authority or pursuant to
any judicial order or direction or to any sale required by law to
be at auction; (2) the owner of any real or personal property
when personally sold at auction by such owner and such owner has
not personally conducted an auction within the previous
twelve-month period; (3) persons conducting sales pursuant to a
deed of trust or other security agreement; (4) fiduciaries of
estates when selling real or personal property of such estate;
and (5) persons conducting sales on behalf of charitable,
religious, fraternal or other nonprofit organizations; (6) persons properly licensed pursuant to the provisions of article
twelve, chapter forty-seven of this code when conducting an
auction, any portion of which contains any leasehold or any
estate in land whether corporeal or incorporeal, freehold or
nonfreehold, when such person is retained to conduct an auction
by a receiver or trustee in bankruptcy, a fiduciary acting under
the authority of a deed of trust or will, or a fiduciary of a
decedent's estate: Provided, That nothing contained in this
article exempts persons conducting sales at public markets from
the provisions of article two-a, chapter nineteen of this code,
where the sale is confined solely to livestock, poultry and other
agriculture and horticulture products.
(b) The term "public auction" means any public sale of real
or personal property when offers or bids are made by prospective
purchasers and the property sold to the highest bidder.
(c) The term "commissioner" means the commissioner of
agriculture of West Virginia.
(d) The term "department" means the West Virginia department
CHAPTER 47. REGULATION OF TRADE.
ARTICLE 12. REAL ESTATE COMMISSION, BROKERS AND SALESPERSONS.
§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 upon
a 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
salespersons employed by a broker and manage an office on behalf
of a broker.
(d) The term "real estate 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
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
(7) Nor to persons 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 land, when such person is retained to
conduct an auction by a receiver or trustee in bankruptcy, a
fiduciary acting under the authority of a deed of trust or will,
or a fiduciary of a decedent's estate.
NOTE: This bill allows licensed real estate brokers who are
not licensed as auctioneers and auctioneers who are not licensed
as real estate brokers to conduct an auction of real estate in
the limited circumstances of being retained to conduct such an
auction by a receiver or trustee in bankruptcy, or by a fiduciary
acting under authority of a deed of trust or will, or by a
fiduciary of a decedent's estate, without the necessity of being
licensed both as a real estate broker as well as an auctioneer.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.