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03 LC 28 0990S/AP
House Bill 177 (AS PASSED HOUSE
AND SENATE)
By: Representatives Powell of the 23rd, Stoner of the 34th, Post 1, Porter of the 119th, DeLoach of the 127th, and Boggs of the 145th
By: Representatives Powell of the 23rd, Stoner of the 34th, Post 1, Porter of the 119th, DeLoach of the 127th, and Boggs of the 145th
A BILL TO BE
ENTITLED
AN ACT
AN ACT
To amend Chapter 39A of Title 43 of the Official Code of
Georgia Annotated, relating to real estate appraisers, so as to change certain
definitions; to change the manner in which appraiser classification criteria are
determined; to change certain provisions relating to the surrender or lapse of a
license; to change certain provisions concerning hearings and service of orders;
to provide certain sanctions for violations; to amend Chapter 40 of Title 43 of
the Official Code of Georgia Annotated, relating to real estate brokers and
salespersons, so as to add certain definitions; to provide requirements for
nonresident licenses; to provide for the licensing of certain community
association managers; to change certain requirements for display of licenses; to
require that ten years elapse from the date of a license surrender after
initiation of an investigation or disciplinary process before the person is
eligible for an associate
broker´s
license or
broker´s
license; to provide for certain hearings; to provide for certain sanctions for
violations; to add certain actions as constituting unfair trade practices; to
provide that listing or sales contracts or leases shall contain such dates as
necessary to determine whether the parties have acted timely in meeting their
responsibilities under such contracts or leases; to provide for the publication
of the name of licensees, schools, and instructors whose licenses or approvals
are revoked, suspended, or surrendered; to provide additional exceptions to the
operation of the chapter; to provide for related matters; to repeal conflicting
laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF
GEORGIA:
SECTION 1.
Chapter 39A of Title 43 of the Official Code of Georgia
Annotated, relating to real estate appraisers, is amended by striking paragraph
(19) of Code Section 43-39A-2, relating to definitions, and inserting in lieu
thereof a new paragraph (19) to read as
follows:
"(19) 'State'includes means any state, district, territory,
possession, or province of the United States or Canada and any sovereign
nation or any political subdivision of such sovereign
nation."
"(19) 'State'
SECTION 2.
Said chapter is further amended by striking subsection (a)
of Code Section 43-39A-8, relating to establishment of appraiser
classifications, and inserting in lieu thereof a new subsection (a) to read
as
follows:
"(a) The board is authorized to establish through its rules and regulations such appraiser classifications as are necessary to comply with federal law in order to assure that Georgia has appropriate classifications of appraisers authorized to appraise in federally related transactions.The board shall establish
criteria for experience, examination, or education standards and shall establish
the scope of practice for such classifications as are necessary to comply with
guidelines established by the Appraisal Subcommittee. The board shall
also create a classification of appraiser to appraise in nonfederally related
transactions and for which applicants need only to meet education standards
established by the board through its rules and
regulations."
"(a) The board is authorized to establish through its rules and regulations such appraiser classifications as are necessary to comply with federal law in order to assure that Georgia has appropriate classifications of appraisers authorized to appraise in federally related transactions.
SECTION 3.
Said chapter is further amended by striking subsections (g),
(h), and (i) of Code Section 43-39A-14, relating to required conduct of
applicants, and inserting in lieu thereof new subsections (g), (h), and (i) to
read as
follows:
"(g) Whenever the board initiates an investigation as provided in Code Section 43-39A-22 to determine whether an appraiser has violated any provision of this chapter or the rules and regulations adopted pursuant to this chapter and such appraiser:
(1)Voluntarily
Surrendered or surrenders an appraiser classification to the
board;
(2)Allows Allowed or
allows an appraiser classification to lapse due to failure to meet education
requirements provided by law; or
(3)Allows Allowed or allows an appraiser classification to
lapse due to failure to pay any required
fees,
and if such surrender or lapsing takes
place after the board has initiated an investigation pursuant to Code Section
43-39A-22 but before the board files a notice of hearing, the board may issue an
order revoking the
appraiser´s
appraiser classification and provide a copy of such order to the
appraiser the board may issue an order revoking such
appraiser´s
classification. The order will be effective ten days after the order is
served on the appraiser receives a copy of the order unless
the appraiser makes a written request for a hearing before the board, in which
event the board will file a notice of hearing in accordance with Chapter 13 of
Title 50, the 'Georgia Administrative Procedure Act.' Service shall be
accomplished as provided for in Code Section 43-39A-21. If such surrender
or lapsing occurs after the board has filed a notice of hearing alleging that
such appraiser has violated any provision of this chapter or the rules and
regulations adopted pursuant to this chapter but before the board enters a final
order in the matter, then upon submission of a new application by such person
the matters asserted in the notice of hearing shall be deemed admitted and may
be used by the board as grounds for refusal of a new appraiser classification to
such person.
(h) Whenever any occupational licensing body of this state, any other state, or any foreign country has sanctioned any license or classification of an applicant for any appraiser classification or whenever such an applicant has allowed a license or classification to lapse or has surrendered a license or classification to any occupational licensing body of this state, any other state, or any foreign country after that occupational licensing body has initiated an investigation or a disciplinary process regarding such applicant´s licensure or classification, such sanction, lapsing, or surrender in itself may be a sufficient ground for refusal of an appraiser classification. Whenever any occupational licensing body of this state, any other state, or any foreign country has revoked the license or classification of an applicant for a classification or whenever such an applicant has allowed a license or classification to lapse or has surrendered a license or classification to any occupational licensing body of this state, any other state, or any foreign country after that body has initiated an investigation or a disciplinary process regarding such applicant´s license or classification, the board may issue an appraiser classification only if:
(1) At least five years have passed since the date that the applicant´s occupational registration, license, or certification was revoked or surrendered;
(2) No criminal charges are pending against the applicant at the time of application; and
(3) The applicant presents to the board satisfactory proof that the applicant now bears a good reputation for honesty, trustworthiness, integrity, and competence to transact real estate appraisal activity in such a manner as to safeguard the interests of the public.
(i) Whenever any appraiser is convicted of any offense enumerated in subsection (b) of this Code section, such appraiser must immediately notify the board of that conviction. Such appraiser´s appraiser classification shall automatically be revoked 60 days after the conviction unless the appraiser makes a written request to the board for a hearing during that 60 day period. Following any such hearingheld requested pursuant to this subsection, the board in
its discretion may impose upon that appraiser any sanction permitted by this
chapter."
"(g) Whenever the board initiates an investigation as provided in Code Section 43-39A-22 to determine whether an appraiser has violated any provision of this chapter or the rules and regulations adopted pursuant to this chapter and such appraiser:
(1)
(2)
(3)
(h) Whenever any occupational licensing body of this state, any other state, or any foreign country has sanctioned any license or classification of an applicant for any appraiser classification or whenever such an applicant has allowed a license or classification to lapse or has surrendered a license or classification to any occupational licensing body of this state, any other state, or any foreign country after that occupational licensing body has initiated an investigation or a disciplinary process regarding such applicant´s licensure or classification, such sanction, lapsing, or surrender in itself may be a sufficient ground for refusal of an appraiser classification. Whenever any occupational licensing body of this state, any other state, or any foreign country has revoked the license or classification of an applicant for a classification or whenever such an applicant has allowed a license or classification to lapse or has surrendered a license or classification to any occupational licensing body of this state, any other state, or any foreign country after that body has initiated an investigation or a disciplinary process regarding such applicant´s license or classification, the board may issue an appraiser classification only if:
(1) At least five years have passed since the date that the applicant´s occupational registration, license, or certification was revoked or surrendered;
(2) No criminal charges are pending against the applicant at the time of application; and
(3) The applicant presents to the board satisfactory proof that the applicant now bears a good reputation for honesty, trustworthiness, integrity, and competence to transact real estate appraisal activity in such a manner as to safeguard the interests of the public.
(i) Whenever any appraiser is convicted of any offense enumerated in subsection (b) of this Code section, such appraiser must immediately notify the board of that conviction. Such appraiser´s appraiser classification shall automatically be revoked 60 days after the conviction unless the appraiser makes a written request to the board for a hearing during that 60 day period. Following any such hearing
SECTION 4.
Said chapter is further amended by striking subsection (a)
of Code Section 43-39A-15, relating to hearings in accordance with the Georgia
Administrative Procedure Act, and inserting in lieu thereof a new subsection (a)
to read as
follows:
"(a) If the board, after an application in proper form has been filed with it, accompanied by the proper fee, shall refuse toaccept the
application issue an appraiser classification to such applicant,
the board shall provide an opportunity for a hearing for such applicant
in accordance with Chapter 13 of Title 50, the 'Georgia Administrative Procedure
Act.' Unless otherwise agreed to by the board, all such hearings shall be
held in the county of domicile of the
board."
"(a) If the board, after an application in proper form has been filed with it, accompanied by the proper fee, shall refuse to
SECTION 5.
Said chapter is further amended by striking Code Section
43-39A-18, relating to penalties for violations, and inserting in lieu thereof a
new Code Section 43-39A-18 to read as
follows:
"43-39A-18.
(a)In accordance with the hearing procedures established for contested
cases by Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act,' the
board shall have the power to reprimand appraisers and approved schools; to
revoke or suspend any appraiser classification issued under this chapter; to
revoke any appraiser classification issued to an appraiser under this chapter
and simultaneously to issue such appraiser a classification with more restricted
authority to conduct appraisals; to revoke or suspend approval of any school; to
impose a fine not to exceed $1,000.00 for each violation of this chapter or its
rules and regulations with fines for multiple violations limited to $5,000.00 in
any one hearing; to require completion of a course of study in real estate
appraisal or instruction; or to utilize any combination of these sanctions which
the board may deem appropriate whenever an appraiser classification or a school
approval has been obtained by false or fraudulent representation or whenever an
appraiser or an approved school has been found guilty of a violation of this
chapter, of the rules and regulations promulgated by the board, or of any
standard of conduct, including, but not limited to, the following acts or
omissions: In accordance with the hearing procedures established for
contested cases by Chapter 13 of Title 50, the 'Georgia Administrative Procedure
Act,' whenever an appraiser, a school approval, or an instructor approval has
been obtained by false or fraudulent representation; or whenever an appraiser,
an approved school, or an approved instructor has been found guilty of a
violation of this chapter, or of the rules and regulations promulgated by the
board, or of any unfair trade practices, including, but not limited to, those
listed in this Code section; the board shall have the power to take any one or
more of the following actions:
(1) Refuse to grant or renew a classification to an applicant;
(2) Administer a reprimand;
(3) Suspend any classification or approval for a definite period of time or for an indefinite period of time in connection with any condition that may be attached to the restoration of the classification or approval;
(4) Revoke any classification or approval;
(5) Revoke any classification issued to an appraiser and simultaneously issue such appraiser a classification with more restricted authority to conduct appraisals;
(6) Impose on an appraiser, applicant, school approval, or instructor approval monetary assessments in an amount necessary to reimburse the board for administrative, investigative, and legal costs and expenses incurred by the board in conducting any proceeding authorized under this chapter or Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act';
(7) Impose a fine not to exceed $1,000.00 for each violation of this chapter or its rules and regulations with fines for multiple violations limited to $5,000.00 in any one disciplinary proceeding or such other amount as the parties may agree;
(8) Require completion of a course of study in real estate appraisal or instruction; or
(9) Limit or restrict any classification or approval as the board deems necessary for the protection of the public.
(b) Appraisers shall not engage in the following unfair trade practices:
(1) Performing any real estate appraisal activity or specialized services which indicate any preference, limitation, or discrimination based on race, color, religion, sex, disability, familial status, or national origin or an intention to make any such preference, limitation, or discrimination;
(2) An act or omission involving dishonesty, fraud, or misrepresentation with the intent to benefit substantially an appraiser or another person or with the intent to injure substantially another person;
(3) Commission of any act of fraud, misrepresentation, or deceit in the making of an appraisal of real estate for which act a final civil or criminal judgment has been rendered;
(4) Engaging in real estate appraisal activity under an assumed or fictitious name not properly registered in this state;
(5) Paying a finder´s fee or a referral fee to a person who is not an appraiser in connection with an appraisal of real estate or real property;
(6) Making a false or misleading statement in that portion of a written appraisal report that deals with professional qualifications or in any testimony concerning professional qualifications;
(7) Violation of the confidential nature of governmental records to which an appraiser gained access through employment or engagement as an appraiser by a governmental agency;
(8) Violation of any of the standards for the development or communication of real estate appraisals as promulgated by the board;
(9) Failure or refusal without good cause to exercise reasonable diligence in developing an appraisal, preparing an appraisal report, or communicating an appraisal;
(10) Negligence or incompetence in developing an appraisal, in preparing an appraisal report, or in communicating an appraisal;
(11) Accepting an independent appraisal assignment when the employment itself is contingent upon the appraiser´s reporting a predetermined estimate, analysis, valuation, or opinion or where the fee to be paid is contingent upon the opinion, conclusions, analysis, or valuation reached or upon the consequences resulting from the appraisal assignment;
(12) Failure to retain for a period of five years the original or a true copy of each appraisal report prepared or signed by the appraiser and all supporting data assembled and formulated by the appraiser in preparing each such appraisal report. The five-year period for retention of records is applicable to each engagement of the services of the appraiser and shall commence upon the date of the delivery of each appraisal report to the client unless, within such five-year period, the appraiser is notified that the appraisal or the appraisal report is involved in litigation, in which event the five-year period for the retention of records shall commence upon the date of the final disposition of such litigation;
(13) Failure upon reasonable request of an appraiser to make all records required to be maintained under the provisions of this chapter available to the board for inspection and copying by the board;
(14) Performing any appraisal beyond the scope of authority granted in the appraiser classification held;
(15) Demonstrating incompetency to act as an appraiser in such a manner as to safeguard the interests of the public or any other conduct, whether of the same or a different character than specified in this subsection, which constitutes dishonest dealing;
(16) Performing or attempting to perform any real estate appraisal activity on property located in another state without first having complied fully with that state´s laws regarding real estate appraisal activity;
(17) Providing an oral appraisal report in a federally related transaction;
(18) Utilizing the services of any person in other than a ministerial capacity in developing an appraisal, in preparing an appraisal report, or in communicating an appraisal if such person´s appraiser classification is suspended or revoked or if such person does not hold an appraiser classification; or
(19) Performing or attempting to perform any real estate appraisal activity in a federally related transaction without complying with the standards required by the federal financial institutions regulatory agency that regulates the financial transaction for which the appraisal assignment is undertaken.
(b)(c) In a
disciplinary proceeding based upon a civil judgment, an appraiser shall be
afforded an opportunity to present matters in mitigation and extenuation but may
not collaterally attack the civil
judgment.
(c)(d) When an
appraiser has previously been sanctioned by the board or by any other
state´s
real estate appraiser licensing authority, the board may consider such prior
sanction in determining the severity of a new sanction which may be imposed upon
a finding that an appraiser has violated any provision of this chapter or any of
the rules and regulations of the board. The failure of an appraiser to comply
with or to obey a final order of the board may be cause for suspension or
revocation of the
individual´s
appraiser classification after opportunity for a
hearing."
"43-39A-18.
(a)
(1) Refuse to grant or renew a classification to an applicant;
(2) Administer a reprimand;
(3) Suspend any classification or approval for a definite period of time or for an indefinite period of time in connection with any condition that may be attached to the restoration of the classification or approval;
(4) Revoke any classification or approval;
(5) Revoke any classification issued to an appraiser and simultaneously issue such appraiser a classification with more restricted authority to conduct appraisals;
(6) Impose on an appraiser, applicant, school approval, or instructor approval monetary assessments in an amount necessary to reimburse the board for administrative, investigative, and legal costs and expenses incurred by the board in conducting any proceeding authorized under this chapter or Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act';
(7) Impose a fine not to exceed $1,000.00 for each violation of this chapter or its rules and regulations with fines for multiple violations limited to $5,000.00 in any one disciplinary proceeding or such other amount as the parties may agree;
(8) Require completion of a course of study in real estate appraisal or instruction; or
(9) Limit or restrict any classification or approval as the board deems necessary for the protection of the public.
(b) Appraisers shall not engage in the following unfair trade practices:
(1) Performing any real estate appraisal activity or specialized services which indicate any preference, limitation, or discrimination based on race, color, religion, sex, disability, familial status, or national origin or an intention to make any such preference, limitation, or discrimination;
(2) An act or omission involving dishonesty, fraud, or misrepresentation with the intent to benefit substantially an appraiser or another person or with the intent to injure substantially another person;
(3) Commission of any act of fraud, misrepresentation, or deceit in the making of an appraisal of real estate for which act a final civil or criminal judgment has been rendered;
(4) Engaging in real estate appraisal activity under an assumed or fictitious name not properly registered in this state;
(5) Paying a finder´s fee or a referral fee to a person who is not an appraiser in connection with an appraisal of real estate or real property;
(6) Making a false or misleading statement in that portion of a written appraisal report that deals with professional qualifications or in any testimony concerning professional qualifications;
(7) Violation of the confidential nature of governmental records to which an appraiser gained access through employment or engagement as an appraiser by a governmental agency;
(8) Violation of any of the standards for the development or communication of real estate appraisals as promulgated by the board;
(9) Failure or refusal without good cause to exercise reasonable diligence in developing an appraisal, preparing an appraisal report, or communicating an appraisal;
(10) Negligence or incompetence in developing an appraisal, in preparing an appraisal report, or in communicating an appraisal;
(11) Accepting an independent appraisal assignment when the employment itself is contingent upon the appraiser´s reporting a predetermined estimate, analysis, valuation, or opinion or where the fee to be paid is contingent upon the opinion, conclusions, analysis, or valuation reached or upon the consequences resulting from the appraisal assignment;
(12) Failure to retain for a period of five years the original or a true copy of each appraisal report prepared or signed by the appraiser and all supporting data assembled and formulated by the appraiser in preparing each such appraisal report. The five-year period for retention of records is applicable to each engagement of the services of the appraiser and shall commence upon the date of the delivery of each appraisal report to the client unless, within such five-year period, the appraiser is notified that the appraisal or the appraisal report is involved in litigation, in which event the five-year period for the retention of records shall commence upon the date of the final disposition of such litigation;
(13) Failure upon reasonable request of an appraiser to make all records required to be maintained under the provisions of this chapter available to the board for inspection and copying by the board;
(14) Performing any appraisal beyond the scope of authority granted in the appraiser classification held;
(15) Demonstrating incompetency to act as an appraiser in such a manner as to safeguard the interests of the public or any other conduct, whether of the same or a different character than specified in this subsection, which constitutes dishonest dealing;
(16) Performing or attempting to perform any real estate appraisal activity on property located in another state without first having complied fully with that state´s laws regarding real estate appraisal activity;
(17) Providing an oral appraisal report in a federally related transaction;
(18) Utilizing the services of any person in other than a ministerial capacity in developing an appraisal, in preparing an appraisal report, or in communicating an appraisal if such person´s appraiser classification is suspended or revoked or if such person does not hold an appraiser classification; or
(19) Performing or attempting to perform any real estate appraisal activity in a federally related transaction without complying with the standards required by the federal financial institutions regulatory agency that regulates the financial transaction for which the appraisal assignment is undertaken.
SECTION 6.
Said chapter is further amended by striking subsection (a)
of Code Section 43-39A-21, relating to hearings on the imposition of sanctions
against appraisers, and inserting in lieu thereof a new subsection (a) to read
as
follows:
"(a) Before the board shall impose on any appraiser any sanction permitted by this chapter, it shall provide an opportunity for a hearing for such appraiser in accordance with Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act.' Unless otherwise agreed to by the board, all such hearings shall be held in the county of domicile of the board."
"(a) Before the board shall impose on any appraiser any sanction permitted by this chapter, it shall provide an opportunity for a hearing for such appraiser in accordance with Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act.' Unless otherwise agreed to by the board, all such hearings shall be held in the county of domicile of the board."
SECTION 7.
Chapter 40 of Title 43 of the Official Code of Georgia
Annotated, relating to real estate brokers and salespersons, is amended by
adding new paragraphs (2.1) and (11) to Code Section 43-40-1, relating to
definitions, to read as
follows:
"(2.1) 'Brokerage agreement' means an express written contract wherein the client promises to pay the real estate broker a valuable consideration or agrees that the real estate broker may receive a valuable consideration from another in consideration of the broker´s producing a seller, buyer, tenant, or landlord ready, able, and willing to sell, buy, or rent the property or in consideration of the broker´s performing property management services or performing community association management services."
"(11) 'State' means any state, district, territory, possession, or province of the United States or Canada and any sovereign nation or any political subdivision of such sovereign nation."
"(2.1) 'Brokerage agreement' means an express written contract wherein the client promises to pay the real estate broker a valuable consideration or agrees that the real estate broker may receive a valuable consideration from another in consideration of the broker´s producing a seller, buyer, tenant, or landlord ready, able, and willing to sell, buy, or rent the property or in consideration of the broker´s performing property management services or performing community association management services."
"(11) 'State' means any state, district, territory, possession, or province of the United States or Canada and any sovereign nation or any political subdivision of such sovereign nation."
SECTION 8.
Said chapter is further amended by striking subsections (c)
and (g) of Code Section 43-40-9, relating to nonresident licenses, and inserting
in lieu thereof new subsections (c) and (g) to read as
follows:
"(c) In order to be licensed in this state, nonresidents who are licensed in another state must meet any requirements established by the commission, which may include:
(1) Show satisfactory proof of current licensure in the applicant´s state of residence;
(2) Pay any required fees;
(3) Sign a statement which states that the applicant has read this chapter and its rules and regulations and agrees to abide by its provisions in all brokerage activity in this state;
(4) Affiliate with a resident or nonresident broker if the applicant is an individual community association manager, salesperson, or associate broker. If a nonresident licensee terminates the affiliation with a broker licensed by the commission, the license of such nonresident shall automatically be terminated unless such nonresident places the license on inactive status or affiliates with another broker licensed by the commission within 30 days. No license shall be issued to any member, officer, independent contractor, employee, or partner of a nonresident firm until said firm qualifies for a broker´s license. A nonresident corporation or limited liability company must obtain from the proper agency and maintain a certificate of authority to transact business in this state;
(5) Provide any documentation required by the commission of the applicant´s licensure in any other state and copies of the records of any disciplinary actions taken against the applicant´s license in that or other states. The imposition of a disciplinary action by any other lawful licensing authority may be grounds for denial of license to a nonresident or for suspension or revocation of a license issued to a nonresident;
(6) File with the commission a designation in writing that appoints the real estate commissioner to act as the licensee´s agent, upon whom all judicial and other process or legal notices directed to such licensee may be served. Service upon the real estate commissioner shall be equivalent to personal service upon the licensee. Copies of such appointment, certified by the real estate commissioner, shall be deemed sufficient evidence thereof and shall be admitted in evidence with the same force and effect as the original thereof might be admitted. In such written designation, the licensee shall agree that any lawful process against the licensee which is served upon the real estate commissioner shall be of the same legal force and validity as if served upon the licensee, and that authority shall continue in force so long as any liability remains outstanding in this state. Upon the receipt of any such process or notice, the real estate commissioner shall immediately mail a copy of the same by certified mail or statutory overnight delivery to the last known business address of the licensee; and
(7) Agree in writing to cooperate with any investigation initiated by the commission by promptly supplying any documents any authorized investigator of the commission may request and by personally appearing at the commission´s offices or other location in this state as the commission´s investigator may request. If the commission sends a notice to produce documents or to appear for an interview with an authorized investigator of the commission by certified mail or statutory overnight delivery to the last known business address of a nonresident licensee and the nonresident licensee fails to comply with that request, the commission may impose on the nonresident licensee any disciplinary sanction permitted under this chapter."
"(g)As used in this Code section, the term 'state' means any state,
district, territory, possession, or province of the United States or
Canada
Reserved."
"(c) In order to be licensed in this state, nonresidents who are licensed in another state must meet any requirements established by the commission, which may include:
(1) Show satisfactory proof of current licensure in the applicant´s state of residence;
(2) Pay any required fees;
(3) Sign a statement which states that the applicant has read this chapter and its rules and regulations and agrees to abide by its provisions in all brokerage activity in this state;
(4) Affiliate with a resident or nonresident broker if the applicant is an individual community association manager, salesperson, or associate broker. If a nonresident licensee terminates the affiliation with a broker licensed by the commission, the license of such nonresident shall automatically be terminated unless such nonresident places the license on inactive status or affiliates with another broker licensed by the commission within 30 days. No license shall be issued to any member, officer, independent contractor, employee, or partner of a nonresident firm until said firm qualifies for a broker´s license. A nonresident corporation or limited liability company must obtain from the proper agency and maintain a certificate of authority to transact business in this state;
(5) Provide any documentation required by the commission of the applicant´s licensure in any other state and copies of the records of any disciplinary actions taken against the applicant´s license in that or other states. The imposition of a disciplinary action by any other lawful licensing authority may be grounds for denial of license to a nonresident or for suspension or revocation of a license issued to a nonresident;
(6) File with the commission a designation in writing that appoints the real estate commissioner to act as the licensee´s agent, upon whom all judicial and other process or legal notices directed to such licensee may be served. Service upon the real estate commissioner shall be equivalent to personal service upon the licensee. Copies of such appointment, certified by the real estate commissioner, shall be deemed sufficient evidence thereof and shall be admitted in evidence with the same force and effect as the original thereof might be admitted. In such written designation, the licensee shall agree that any lawful process against the licensee which is served upon the real estate commissioner shall be of the same legal force and validity as if served upon the licensee, and that authority shall continue in force so long as any liability remains outstanding in this state. Upon the receipt of any such process or notice, the real estate commissioner shall immediately mail a copy of the same by certified mail or statutory overnight delivery to the last known business address of the licensee; and
(7) Agree in writing to cooperate with any investigation initiated by the commission by promptly supplying any documents any authorized investigator of the commission may request and by personally appearing at the commission´s offices or other location in this state as the commission´s investigator may request. If the commission sends a notice to produce documents or to appear for an interview with an authorized investigator of the commission by certified mail or statutory overnight delivery to the last known business address of a nonresident licensee and the nonresident licensee fails to comply with that request, the commission may impose on the nonresident licensee any disciplinary sanction permitted under this chapter."
"(g)
SECTION 9.
Said chapter is further amended by striking Code Section
43-40-10, relating to granting of
broker´s
license, associate
broker´s
license, or
salesperson´s
license to firm, and inserting in lieu thereof a new Code Section 43-40-10 to
read as
follows:
"43-40-10.
(a) No broker´s license shall be granted to a firm unless: (1) said firm designates an individual licensed as a broker as its qualifying broker who shall be responsible for assuring that the firm and its affiliated licensees comply with the provisions of this chapter and its attendant rules and regulations; and (2) said firm authorizes its qualifying broker to bind the firm to any settlement of a contested case before the commission as defined in Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act,' in which said firm may be a named respondent. Violations of this chapter or its rules and regulations by a firm licensed as a broker shall subject the license of the qualifying broker to sanction as authorized by this chapter. No broker´s license shall be granted to a firm unless every person who acts as a licensee for such firm shall hold a real estate license.
(b) No associate broker´s, salesperson´s, or community association manager´s license shall be granted to a corporation, limited liability company, or partnership unless said corporation, limited liability company, or partnership designates an individuallicensed as an associate broker who
holds the same type of license as its qualifying associate
broker licensee who shall be responsible for assuring that the
corporation, limited liability company, or partnership complies with the
provisions of this chapter and its attendant rules and regulations. Violations
of this chapter or rules and regulations by a corporation, limited liability
company, or partnership licensed as an associate broker, salesperson, or
community association manager shall subject both the license of the
entity and the license of the qualifying associate broker
licensee to sanction as authorized by this chapter. The qualifying
associate broker licensee shall be the only licensee of
a corporation, limited liability company, or partnership licensed as an
associate broker, salesperson, or community association manager. The
license of a corporation, limited liability company, or partnership licensed as
an associate broker, salesperson, or community association manager must
be assigned to a licensed broker. The licensed associate broker, salesperson,
or community association manager corporation, limited liability company, or
partnership or qualifying associate broker licensee may
not engage in the brokerage business except in behalf of the broker to whom its
license is assigned.
(c) No
salesperson´s
license shall be granted to a corporation, limited liability company, or
partnership unless said corporation, limited liability company, or partnership
designates an individual licensed as a salesperson as its qualifying salesperson
who shall be responsible for assuring that the corporation, limited liability
company, or partnership complies with the provisions of this chapter and its
attendant rules and regulations. Violations of this chapter or rules and
regulations by a corporation, limited liability company, or partnership licensed
as a salesperson shall subject the license of the qualifying salesperson to
sanction as authorized by this chapter. The qualifying salesperson shall be the
only licensee of a corporation, limited liability company, or partnership
licensed as a salesperson. The license of a corporation, limited liability
company, or partnership licensed as a salesperson must be assigned to a licensed
broker. The licensed salesperson corporation, limited liability company, or
partnership, or qualifying salesperson may not engage in the brokerage business
except in behalf of the broker to whom its license is
assigned."
"43-40-10.
(a) No broker´s license shall be granted to a firm unless: (1) said firm designates an individual licensed as a broker as its qualifying broker who shall be responsible for assuring that the firm and its affiliated licensees comply with the provisions of this chapter and its attendant rules and regulations; and (2) said firm authorizes its qualifying broker to bind the firm to any settlement of a contested case before the commission as defined in Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act,' in which said firm may be a named respondent. Violations of this chapter or its rules and regulations by a firm licensed as a broker shall subject the license of the qualifying broker to sanction as authorized by this chapter. No broker´s license shall be granted to a firm unless every person who acts as a licensee for such firm shall hold a real estate license.
(b) No associate broker´s, salesperson´s, or community association manager´s license shall be granted to a corporation, limited liability company, or partnership unless said corporation, limited liability company, or partnership designates an individual
SECTION 10.
Said chapter is further amended by striking Code Section
43-40-11, relating to form and display of license, and inserting in lieu thereof
a new Code Section 43-40-11 to read as
follows:
"43-40-11.
The commission shall prescribe the form of the license. Each license shall have placed thereon the seal of the commission. The license of each affiliated licensee shall be delivered or mailed to the real estate broker for whom the licensee is acting and shall be kept in the custody and control of such broker.It shall be the duty of each broker to display the
broker´s
own license conspicuously and those of the affiliated licensees in such
broker´s
place of business. The commission shall prepare and deliver a pocket
card certifying that the person whose name appears thereon is a
licensee."
"43-40-11.
The commission shall prescribe the form of the license. Each license shall have placed thereon the seal of the commission. The license of each affiliated licensee shall be delivered or mailed to the real estate broker for whom the licensee is acting and shall be kept in the custody and control of such broker.
SECTION 11.
Said chapter is further amended by striking subsections (h)
and (i) of Code Section 43-40-15, relating to grant, revocation, and suspension
of licenses, and inserting in lieu thereof new subsections (h) and (i) to
read as
follows:
"(h) Whenever any occupational licensing body of this state, any other state, or any foreign country has sanctioned the license of an applicant for any license authorized by this chapter or whenever such an applicant has allowed a license to lapse or has surrendered a license to any occupational licensing body of this state, any other state, or any foreign country after that body has initiated an investigation or a disciplinary process regarding such applicant´s license, such sanction, lapsing, or surrender in itself may be a sufficient ground for refusal of a license. Whenever any occupational licensing body of this state, any other state, or any foreign country has revoked the license of an applicant for any license authorized by this chapter or whenever such an applicant has allowed a license to lapse or has surrendered a license to any occupational licensing body of this state, any other state, or foreign country after that body has initiated an investigation or a disciplinary process regarding such applicant´s license, the commission may issue an associate broker´s or a broker´s license only if:
(1) At least ten years have passed since the date that the applicant´s occupational license was revoked or surrendered;
(2) No criminal charges are pending against the applicant at the time of application; and
(3) The applicant presents to the commission satisfactory proof that the applicant now bears a good reputation for honesty, trustworthiness, integrity, and competence to transact the business of a licensee in such a manner as to safeguard the interest of the public.
(i) Whenever any licensee is convicted of any offense enumerated in subsection (b) of this Code section, the licensee must immediately notify the commission of that conviction. The licensee´s license shall automatically be revoked 60 days after the licensee´s conviction unless the licensee makes a written request to the commission for a hearing during that 60 day period.The failure of a licensee to notify
the commission of the
licensee´s
conviction within 60 days of the date of that conviction shall be grounds for
automatically revoking the
licensee´s
license prior to any hearing at the time the commission receives evidence of
that conviction. Following any such hearing held
requested pursuant to this subsection, the commission in its discretion
may impose upon that licensee any sanction permitted by this
chapter."
"(h) Whenever any occupational licensing body of this state, any other state, or any foreign country has sanctioned the license of an applicant for any license authorized by this chapter or whenever such an applicant has allowed a license to lapse or has surrendered a license to any occupational licensing body of this state, any other state, or any foreign country after that body has initiated an investigation or a disciplinary process regarding such applicant´s license, such sanction, lapsing, or surrender in itself may be a sufficient ground for refusal of a license. Whenever any occupational licensing body of this state, any other state, or any foreign country has revoked the license of an applicant for any license authorized by this chapter or whenever such an applicant has allowed a license to lapse or has surrendered a license to any occupational licensing body of this state, any other state, or foreign country after that body has initiated an investigation or a disciplinary process regarding such applicant´s license, the commission may issue an associate broker´s or a broker´s license only if:
(1) At least ten years have passed since the date that the applicant´s occupational license was revoked or surrendered;
(2) No criminal charges are pending against the applicant at the time of application; and
(3) The applicant presents to the commission satisfactory proof that the applicant now bears a good reputation for honesty, trustworthiness, integrity, and competence to transact the business of a licensee in such a manner as to safeguard the interest of the public.
(i) Whenever any licensee is convicted of any offense enumerated in subsection (b) of this Code section, the licensee must immediately notify the commission of that conviction. The licensee´s license shall automatically be revoked 60 days after the licensee´s conviction unless the licensee makes a written request to the commission for a hearing during that 60 day period.
SECTION 12.
Said chapter is further amended by striking subsection (a)
of Code Section 43-40-16, relating to the nonacceptance of applications for
licenses, and inserting in lieu thereof a new subsection (a) to read as
follows:
"(a) If the commission, after an application in proper form has been filed with it, accompanied by the proper fee, shall refuse toaccept the
application issue a license to such applicant, the commission
shall provide an opportunity for a hearing for such applicant in
accordance with Chapter 13 of Title 50, the 'Georgia Administrative Procedure
Act.' Unless otherwise agreed by the commission, all such hearings shall be
held in the county of the domicile of the
commission."
"(a) If the commission, after an application in proper form has been filed with it, accompanied by the proper fee, shall refuse to
SECTION 13.
Said chapter is further amended by striking Code Section
43-40-17, relating to revocation or suspension of a license issued to a
partnership, limited liability company, or corporation, and inserting in lieu a
new Code Section 43-40-17 to read as
follows:
"43-40-17.
In
the event of the revocation or suspension of the license issued to any partner
of a partnership, to any member of a limited liability company, or to any
officer of a corporation, the license issued to such partnership, limited
liability company, or corporation shall be revoked by the commission unless,
within a time fixed by the commission, where a partnership or limited liability
company, the connection therewith of the partner or member whose license has
been revoked is severed and such
person´s
interest in the partnership or limited liability company and such
person´s
share in its activities brought to an end or, where a corporation, the offending
officer is discharged and shall have no further participation in its
activities
Reserved."
"43-40-17.
SECTION 14.
Said chapter is further amended by striking Code Section
43-40-25, relating to violations by licensees, schools, and instructors, and
inserting in lieu thereof a new Code Section 43-40-25 to read as
follows:
"43-40-25.
(a)In accordance with the hearing procedures established for contested
cases by Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act,' the
commission shall have the power to reprimand licensees and approved schools or
instructors; to revoke or suspend any license issued under this chapter; to
revoke the license of a real estate broker or qualifying broker and
simultaneously issue such licensee a
salesperson´s
license; to revoke or suspend approval of any school or instructor; to impose a
fine not to exceed $1,000.00 for each violation of this chapter or its rules and
regulations with fines for multiple violations limited to $5,000.00 in any one
hearing; to require completion of a course of study in real estate brokerage or
instruction; to require the filing of periodic reports by an independent
accountant on a real estate
broker´s
designated trust account; or to utilize any combination of these sanctions which
the commission may deem appropriate whenever a license, a school approval, or an
instructor approval has been obtained by false or fraudulent representation or
whenever a licensee, an approved school, or an approved instructor has been
found guilty of a violation of this chapter, or of the rules and regulations
promulgated by the commission, or of any unfair trade practices, including, but
not limited to, the following: In accordance with the hearing
procedures established for contested cases by Chapter 13 of Title 50, the
'Georgia Administrative Procedure Act,' whenever a license, a school approval,
or an instructor approval has been obtained by false or fraudulent
representation; or whenever a licensee, an approved school, or an approved
instructor has been found guilty of a violation of this chapter, or of the rules
and regulations promulgated by the commission, or of any unfair trade practices,
including, but not limited to those listed in this Code section; the commission
shall have the power to take any one or more of the following
actions:
(1) Refuse to grant or renew a license to an applicant;
(2) Administer a reprimand;
(3) Suspend any license or approval for a definite period of time or for an indefinite period of time in connection with any condition that may be attached to the restoration of the license or approval;
(4) Revoke any license or approval;
(5) Revoke the license of a broker, qualifying broker, or associate broker and simultaneously issue such licensee a salesperson´s license;
(6) Impose on a licensee, applicant, school approval, or instructor approval monetary assessments in an amount necessary to reimburse the commission for the administrative, investigative, and legal costs and expenses incurred by the commission in conducting any proceeding authorized under this chapter or Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act';
(7) Impose a fine not to exceed $1,000.00 for each violation of this chapter or its rules and regulations with fines for multiple violations limited to $5,000.00 in any one disciplinary proceeding or such other amount as the parties may agree;
(8) Require completion of a course of study in real estate brokerage or instruction;
(9) Require the filing of periodic reports by an independent accountant on a real estate broker´s designated trust account; or
(10) Limit or restrict any license or approval as the commission deems necessary for the protection of the public.
(b) Licensees shall not engage in any of the following unfair trade practices:
(1) Because of race, color, religion, sex, disability, familial status, or national origin:
(A) Refusing to sell or rent after the making of a bona fide offer, or refusing to negotiate for the sale or rental of, or otherwise making unavailable or denying, real estate to any person;
(B) Discriminating against any person in the terms, conditions, or privileges of sale or rental of real estate or in the provision of services or facilities in connection therewith;
(C) Making, printing, or publishing or causing to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of real estate, that indicates any preference, limitation, or discrimination or an intention to make any such preference, limitation, or discrimination;
(D) Representing to any person that any real estate is not available for inspection, sale, or rental when such real estate is in fact so available; or
(E) Representing explicitly or implicitly that a change has or will or may occur in a block, neighborhood, or area in order to induce or discourage the listing, purchasing, selling, or renting of real estate;
(2) Intentionally advertising material which is misleading or inaccurate or which in any way misrepresents any property, terms, values, policies, or services of the business conducted;
(3) Failing to account for and remit any money coming into the licensee´s possession which belongs to others;
(4) Commingling the money or other property of the licensee´s principals with the licensee´s own;
(5) Failing to maintain and deposit in a separate, federally insured checking account all money received by said broker acting in said capacity, or as escrow agent or the temporary custodian of the funds of others, in a real estate transaction unless all parties having an interest in said funds have agreed otherwise in writing;
(6) Accepting, giving, or charging any undisclosed commission, rebate, or direct profit on expenditures made for a principal or any undisclosed commission, rebate, or direct profit for procuring a loan or insurance or for conducting a property inspection related to a real estate transaction;
(7) Representing or attempting to represent a real estate broker, other than the broker holding the licensee´s license, without the express knowledge and consent of the broker holding the licensee´s license;
(8) Accepting a commission or other valuable consideration by a licensee from anyone other than the broker holding that licensee´s license without the consent of that broker;
(9) Acting in the dual capacity of agent and undisclosed principal in any transaction;
(10) Guaranteeing or authorizing any person to guarantee future profits which may result from the resale of real property;
(11) Placing a sign on any property offering it for sale or rent without the written consent of the owner or the owner´s authorized agent and failing to remove such sign within ten days after the expiration of listing;
(12) Offering real estate for sale or lease without the knowledge and consent of the owner or the owner´s authorized agent or on terms other than those authorized by the owner or the owner´s authorized agent;
(13) Inducing any party to a contract of sale or lease,a listing contract, an exclusive agency
contract or agreement, or a management agreement or a brokerage
agreement to break such contract or brokerage agreement for the
purpose of substituting in lieu thereof any other contract or brokerage
agreement with another principal;
(14) Negotiating a sale, exchange, or lease of real estate directly with an owner,or a lessor, a purchaser, or a tenant if the
licensee knows that such owner or lessor has a written outstanding
contract in connection with such property granting an exclusive agency or an
exclusive right to sell to another broker or that such purchaser or tenant
has a brokerage agreement with another broker;
(15) Indicating that an opinion given to a potential seller, purchaser, landlord, or tenant regarding a listing, lease, rental, or purchase price is an appraisal unless such licensee holds an appraiser classification in accordance with Chapter 39A of this title;
(16) Performing or attempting to perform any of the acts of a licensee on property located in another state without first having been properly licensed in that state or otherwise having complied fully with that state´s laws regarding real estate brokerage;
(17) Paying a commission or compensation to any person for performing the services of a real estate licensee who has not first secured the appropriate license under this chapter or is not cooperating as a nonresident who is licensed in such nonresident´s state or foreign country of residence, provided that nothing contained in this subsection or any other provision of this Code section shall be construed so as to prohibit the payment of earned commissions:
(A) To the estate or heirs of a deceased real estate licensee when such deceased real estate licensee had a valid Georgia real estate license in effect at the time the commission was earned and at the time of such person´s death; or
(B) To a citizen of another country acting as a referral agent if that country does not license real estate brokers and if the Georgia licensee paying such commission or compensation obtains and maintains reasonable written evidence that the payee is a citizen of said other country, is not a resident of this country, and is in the business of brokering real estate in said other country;
(18) Failing to include a fixed date of expiration in any written listing agreement and failing to leave a copy of said agreement with the principal;
(19) Failing to deliver, within a reasonable time, a completed copy of any purchase agreement or offer to buy or sell real estate to the purchaser and to the seller;
(20) Failure by a broker to deliver to the seller in every real estate transaction, at the time said transaction is consummated, a complete, detailed closing statement showing all of the receipts and disbursements handled by such broker for the seller or failure to deliver to the buyer a complete statement showing all money received in said transaction from such buyer and how and for what the same was disbursed; the broker shall retain true copies of such statements in the broker´s files;
(21) Making any substantial misrepresentations;
(22) Acting for more than one party in a transaction without the express written consent of all parties to the transaction;
(23) Failure of an associate broker, salesperson, or community association manager to place, as soon after receipt as is practicably possible, in the custody of the broker holding the licensee´s license any deposit money or other money or funds entrusted to the licensee by any person dealing with the licensee as the representative of the licensee´s licensed broker;
(24) Filing a listing contract or any document or instrument purporting to create a lien based on a listing contract for the purpose of casting a cloud upon the title to real estate when no valid claim under said listing contract exists;
(25) Having demonstrated incompetency to act as a real estate licensee in such manner as to safeguard the interest of the public or any other conduct whether of the same or a different character than heretofore specified which constitutes dishonest dealing;
(26) Obtainingan exclusive
listing a brokerage agreement, a sales contract, or a
lease management agreement from any owner, purchaser,
or tenant while knowing or having reason to believe that another broker has
an exclusive listing on the property a brokerage agreement
with such owner, purchaser, or tenant, unless the licensee has written
permission from the broker having the first exclusive listing
brokerage agreement; provided, however, that notwithstanding the
provisions of this paragraph, a licensee shall be permitted to present a
proposal or bid for community association management if requested to do so in
writing from a community association board of
directors;
(27) Failing to keep for a period of three years a true and correct copy of all sales contracts, closing statements, any offer or other document that resulted in the depositing of trust funds, accounting records related to the maintenance of any trust account required by this chapter, and other documents relating to real estate closings or transactions or failing to produce such documents at the reasonable request of the commission or any of its agents for their inspection;
(28) Being or becoming a party to any falsification of any portion of any contract or other document involved in any real estate transaction;
(29) Conducting the closing of any real estate transaction by any licensee except a broker unless the licensee acts under the supervision of the broker under whom such licensee is licensed or under the supervision of a practicing attorney with the knowledge and consent of the broker;
(30) Failing to obtain the written agreement of the parties indicating to whom the broker shall pay any interest earned on trust funds deposited into an interest-bearing checking account prior to depositing those funds into such account;
(31) Failing to disclose in a timely manner to all parties in a real estate transaction any agency relationship that the licensee may have with any of the parties;
(32) Attempting to perform any act authorized by this chapter to be performed only by a broker, associate broker, or salesperson while licensed as a community association manager;
(33) Attempting to sell, lease, or exchange the property of any member of a community association to which a licensee is providing community association management services without the express written consent of that association to do so;
(33.1) Failure to deliver to a community association terminating a management contract within 30 days of the termination, or within such other time period as the management contract shall provide:
(A) A complete and accurate record of all transactions and funds handled during the period of the contract and not previously accounted for;
(B) All records and documents received from the community association or received on the association´s behalf; and
(C) Any funds held on behalf of the community association;
(33.2) Failure to deliver to a property owner terminating a management contract within 30 days of the termination, or within such other time period as the management contract shall provide:
(A) A complete and accurate record of all transactions and funds handled during the period of the contract and not previously accounted for;
(B) All records and documents received from the property owner or received on the owner´s behalf; and
(C) Any funds held on behalf of the property owner;
(34) Inducing any person to alter, modify, or change another licensee´s fee or commission for real estate brokerage services without that licensee´s prior written consent; or
(35) Failing to obtain a person´s agreement to refer that person to another licensee for brokerage or relocation services and to inform such person being referred whether or not the licensee will receive a valuable consideration for such referral.
(b)(c) When a
licensee has previously been sanctioned by the commission or by any other
state´s
real estate brokerage licensing authority, the commission, through its
hearing officers, may consider any such prior sanctions in determining
the severity of a new sanction which may be imposed upon a finding that the
licensee has committed an unfair trade practice, that the licensee has violated
any provision of this chapter, or that the licensee has violated any of the
rules and regulations of the commission. The failure of a licensee to comply
with or to obey a final order of the commission may be cause for suspension or
revocation of the
individual´s
license after opportunity for a
hearing.
(c)(d) Whenever a
licensee acts in a real estate transaction as a principal or as an officer,
employee, or member of a firm or any other entity acting as a principal, the
commission may impose any sanction permitted by this chapter if the licensee
commits any unfair trade practice enumerated in this Code section or violates
any other provision of this chapter or any rules and regulations adopted
pursuant to this chapter in such a
transaction.
(d)(e) Whenever a
community association manager, a salesperson, or an associate broker violates
any provision of this chapter or any rules and regulations adopted pursuant to
this chapter by performing any duty or act of a broker enumerated in this
chapter or any rules and regulations adopted pursuant to this chapter either
with the proper delegation of that duty or act by the broker or without the
broker´s
authorization, the commission may impose any sanction permitted under this
chapter on the license of such community association manager, salesperson, or
associate broker."
"43-40-25.
(a)
(1) Refuse to grant or renew a license to an applicant;
(2) Administer a reprimand;
(3) Suspend any license or approval for a definite period of time or for an indefinite period of time in connection with any condition that may be attached to the restoration of the license or approval;
(4) Revoke any license or approval;
(5) Revoke the license of a broker, qualifying broker, or associate broker and simultaneously issue such licensee a salesperson´s license;
(6) Impose on a licensee, applicant, school approval, or instructor approval monetary assessments in an amount necessary to reimburse the commission for the administrative, investigative, and legal costs and expenses incurred by the commission in conducting any proceeding authorized under this chapter or Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act';
(7) Impose a fine not to exceed $1,000.00 for each violation of this chapter or its rules and regulations with fines for multiple violations limited to $5,000.00 in any one disciplinary proceeding or such other amount as the parties may agree;
(8) Require completion of a course of study in real estate brokerage or instruction;
(9) Require the filing of periodic reports by an independent accountant on a real estate broker´s designated trust account; or
(10) Limit or restrict any license or approval as the commission deems necessary for the protection of the public.
(b) Licensees shall not engage in any of the following unfair trade practices:
(1) Because of race, color, religion, sex, disability, familial status, or national origin:
(A) Refusing to sell or rent after the making of a bona fide offer, or refusing to negotiate for the sale or rental of, or otherwise making unavailable or denying, real estate to any person;
(B) Discriminating against any person in the terms, conditions, or privileges of sale or rental of real estate or in the provision of services or facilities in connection therewith;
(C) Making, printing, or publishing or causing to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of real estate, that indicates any preference, limitation, or discrimination or an intention to make any such preference, limitation, or discrimination;
(D) Representing to any person that any real estate is not available for inspection, sale, or rental when such real estate is in fact so available; or
(E) Representing explicitly or implicitly that a change has or will or may occur in a block, neighborhood, or area in order to induce or discourage the listing, purchasing, selling, or renting of real estate;
(2) Intentionally advertising material which is misleading or inaccurate or which in any way misrepresents any property, terms, values, policies, or services of the business conducted;
(3) Failing to account for and remit any money coming into the licensee´s possession which belongs to others;
(4) Commingling the money or other property of the licensee´s principals with the licensee´s own;
(5) Failing to maintain and deposit in a separate, federally insured checking account all money received by said broker acting in said capacity, or as escrow agent or the temporary custodian of the funds of others, in a real estate transaction unless all parties having an interest in said funds have agreed otherwise in writing;
(6) Accepting, giving, or charging any undisclosed commission, rebate, or direct profit on expenditures made for a principal or any undisclosed commission, rebate, or direct profit for procuring a loan or insurance or for conducting a property inspection related to a real estate transaction;
(7) Representing or attempting to represent a real estate broker, other than the broker holding the licensee´s license, without the express knowledge and consent of the broker holding the licensee´s license;
(8) Accepting a commission or other valuable consideration by a licensee from anyone other than the broker holding that licensee´s license without the consent of that broker;
(9) Acting in the dual capacity of agent and undisclosed principal in any transaction;
(10) Guaranteeing or authorizing any person to guarantee future profits which may result from the resale of real property;
(11) Placing a sign on any property offering it for sale or rent without the written consent of the owner or the owner´s authorized agent and failing to remove such sign within ten days after the expiration of listing;
(12) Offering real estate for sale or lease without the knowledge and consent of the owner or the owner´s authorized agent or on terms other than those authorized by the owner or the owner´s authorized agent;
(13) Inducing any party to a contract of sale or lease,
(14) Negotiating a sale, exchange, or lease of real estate directly with an owner,
(15) Indicating that an opinion given to a potential seller, purchaser, landlord, or tenant regarding a listing, lease, rental, or purchase price is an appraisal unless such licensee holds an appraiser classification in accordance with Chapter 39A of this title;
(16) Performing or attempting to perform any of the acts of a licensee on property located in another state without first having been properly licensed in that state or otherwise having complied fully with that state´s laws regarding real estate brokerage;
(17) Paying a commission or compensation to any person for performing the services of a real estate licensee who has not first secured the appropriate license under this chapter or is not cooperating as a nonresident who is licensed in such nonresident´s state or foreign country of residence, provided that nothing contained in this subsection or any other provision of this Code section shall be construed so as to prohibit the payment of earned commissions:
(A) To the estate or heirs of a deceased real estate licensee when such deceased real estate licensee had a valid Georgia real estate license in effect at the time the commission was earned and at the time of such person´s death; or
(B) To a citizen of another country acting as a referral agent if that country does not license real estate brokers and if the Georgia licensee paying such commission or compensation obtains and maintains reasonable written evidence that the payee is a citizen of said other country, is not a resident of this country, and is in the business of brokering real estate in said other country;
(18) Failing to include a fixed date of expiration in any written listing agreement and failing to leave a copy of said agreement with the principal;
(19) Failing to deliver, within a reasonable time, a completed copy of any purchase agreement or offer to buy or sell real estate to the purchaser and to the seller;
(20) Failure by a broker to deliver to the seller in every real estate transaction, at the time said transaction is consummated, a complete, detailed closing statement showing all of the receipts and disbursements handled by such broker for the seller or failure to deliver to the buyer a complete statement showing all money received in said transaction from such buyer and how and for what the same was disbursed; the broker shall retain true copies of such statements in the broker´s files;
(21) Making any substantial misrepresentations;
(22) Acting for more than one party in a transaction without the express written consent of all parties to the transaction;
(23) Failure of an associate broker, salesperson, or community association manager to place, as soon after receipt as is practicably possible, in the custody of the broker holding the licensee´s license any deposit money or other money or funds entrusted to the licensee by any person dealing with the licensee as the representative of the licensee´s licensed broker;
(24) Filing a listing contract or any document or instrument purporting to create a lien based on a listing contract for the purpose of casting a cloud upon the title to real estate when no valid claim under said listing contract exists;
(25) Having demonstrated incompetency to act as a real estate licensee in such manner as to safeguard the interest of the public or any other conduct whether of the same or a different character than heretofore specified which constitutes dishonest dealing;
(26) Obtaining
(27) Failing to keep for a period of three years a true and correct copy of all sales contracts, closing statements, any offer or other document that resulted in the depositing of trust funds, accounting records related to the maintenance of any trust account required by this chapter, and other documents relating to real estate closings or transactions or failing to produce such documents at the reasonable request of the commission or any of its agents for their inspection;
(28) Being or becoming a party to any falsification of any portion of any contract or other document involved in any real estate transaction;
(29) Conducting the closing of any real estate transaction by any licensee except a broker unless the licensee acts under the supervision of the broker under whom such licensee is licensed or under the supervision of a practicing attorney with the knowledge and consent of the broker;
(30) Failing to obtain the written agreement of the parties indicating to whom the broker shall pay any interest earned on trust funds deposited into an interest-bearing checking account prior to depositing those funds into such account;
(31) Failing to disclose in a timely manner to all parties in a real estate transaction any agency relationship that the licensee may have with any of the parties;
(32) Attempting to perform any act authorized by this chapter to be performed only by a broker, associate broker, or salesperson while licensed as a community association manager;
(33) Attempting to sell, lease, or exchange the property of any member of a community association to which a licensee is providing community association management services without the express written consent of that association to do so;
(33.1) Failure to deliver to a community association terminating a management contract within 30 days of the termination, or within such other time period as the management contract shall provide:
(A) A complete and accurate record of all transactions and funds handled during the period of the contract and not previously accounted for;
(B) All records and documents received from the community association or received on the association´s behalf; and
(C) Any funds held on behalf of the community association;
(33.2) Failure to deliver to a property owner terminating a management contract within 30 days of the termination, or within such other time period as the management contract shall provide:
(A) A complete and accurate record of all transactions and funds handled during the period of the contract and not previously accounted for;
(B) All records and documents received from the property owner or received on the owner´s behalf; and
(C) Any funds held on behalf of the property owner;
(34) Inducing any person to alter, modify, or change another licensee´s fee or commission for real estate brokerage services without that licensee´s prior written consent; or
(35) Failing to obtain a person´s agreement to refer that person to another licensee for brokerage or relocation services and to inform such person being referred whether or not the licensee will receive a valuable consideration for such referral.
SECTION 15.
Said chapter is further amended by striking Code Section
43-40-25.1, relating to completion of certain forms not being the practice of
law, and inserting in lieu thereof a new Code Section 43-40-25.1 to read as
follows:
"43-40-25.1.
It shall be lawful for licensees to complete listing or sales contracts or leases whose form has been prepared by legal counsel and such conduct shall not constitute the unauthorized practice of law. In completing a lease or a written offer to buy, sell, lease, rent, or exchange real property, a licensee shall include a description of the property involved, a method of payment, any special stipulations or addenda the offer requires, and,upon acceptance by the
offeree, the date of such acceptance such dates as may be necessary
to determine whether the parties have acted timely in meeting their
responsibilities under the lease, offer, or
contract."
"43-40-25.1.
It shall be lawful for licensees to complete listing or sales contracts or leases whose form has been prepared by legal counsel and such conduct shall not constitute the unauthorized practice of law. In completing a lease or a written offer to buy, sell, lease, rent, or exchange real property, a licensee shall include a description of the property involved, a method of payment, any special stipulations or addenda the offer requires, and,
SECTION 16.
Said chapter is further amended by striking subsection (a)
of Code Section 43-40-26, relating to hearings before the commission, and
inserting in lieu thereof a new subsection (a) to read as
follows:
"(a) Before the commission shall censure a licensee or before revoking or suspending a license, it shall provide an opportunity for a hearing for such holder of a license in accordance with Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act.' Unless otherwise agreed to by the commission, all such hearings shall be held in the county of domicile of the commission."
"(a) Before the commission shall censure a licensee or before revoking or suspending a license, it shall provide an opportunity for a hearing for such holder of a license in accordance with Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act.' Unless otherwise agreed to by the commission, all such hearings shall be held in the county of domicile of the commission."
SECTION 17.
Said chapter is further amended by striking subsection (e)
of Code Section 43-40-27, relating to investigation of complaints, and inserting
in lieu thereof a new subsection (e) to read as
follows:
"(e) Whenever the commission revokes or suspendsfor more than 60
days a license, a school approval, or an instructor approval or
whenever a licensee, an approved school, or an approved instructor surrenders a
license or an approval to the commission after the commission has filed
a notice of hearing, in a contested case as defined in Chapter 13 of
Title 50, the 'Georgia Administrative Procedure Act,' the commission
shall may publish the name of such licensee, approved
school, or approved instructor on its official website or in
its any other official newsletter
publication of the
agency."
"(e) Whenever the commission revokes or suspends
SECTION 18.
Said chapter is further amended by striking paragraph (7) of
subsection (a) of Code Section 43-40-29, relating to exceptions to operation of
chapter, and inserting in lieu thereof a new paragraph (7) to read as
follows:
"(7) Any person who, as owner or through another person engaged by such owner on a full-time basis or as owner of a management company whose principals hold a controlling ownership of such property, provides property management services or community association management services, buys, sells, leases, manages, auctions, or otherwise deals with property owned by such person;".
"(7) Any person who, as owner or through another person engaged by such owner on a full-time basis or as owner of a management company whose principals hold a controlling ownership of such property, provides property management services or community association management services, buys, sells, leases, manages, auctions, or otherwise deals with property owned by such person;".
SECTION 19.
This Act shall become effective upon its approval by the
Governor or upon its becoming law without such approval.
SECTION 20.
All laws and parts of laws in conflict with this Act are
repealed.