CHAPTER 304
HB 1404 – FINAL VERSION
05/12/10 1887s
2010 SESSION
10/03
HOUSE BILL 1404
AN ACT relative to the regulation of real estate brokers and salespersons.
SPONSORS: Rep. Baroody, Hills 13; Rep. Buco, Carr 1
COMMITTEE: Executive Departments and Administration
This bill clarifies provisions in the real estate practice act relating to definitions, exemptions, escrow accounts, and contact information in advertising and the regulation of continuing education providers.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
05/12/10 1887s
10-2550
10/03
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Ten
AN ACT relative to the regulation of real estate brokers and salespersons.
Be it Enacted by the Senate and House of Representatives in General Court convened:
304:1 Definition; Firm. Amend RSA 331-A:2, V-b to read as follows:
V-b. “Firm” means any sole proprietorship, partnership, association, corporation, limited liability company, [or] other business association [engaged in the sale or lease of real estate or which employs licensees under this chapter], or other legal entity.
304:2 Definition; Person. Amend RSA 331-A:2, VII to read as follows:
VII. “Person” means an individual, sole proprietorship, corporation, partnership [or], association, [both foreign and domestic] limited liability company, other business association, or other legal entity.
304:3 Definition; Unprofessional Conduct. Amend RSA 331-A:2, XV to read as follows:
XV. “Unprofessional conduct” means any action by a licensee or accredited individual, institution, or organization which is unlawful, dishonorable, unethical, or immoral.
304:4 Exemption; Manufactured Housing Park. Amend RSA 331-A:4, VII to read as follows:
VII. Any person owning or operating a park, including the person’s regular employees, in which manufactured housing to be sold or leased is located, who may, for a fee or commission or other valuable consideration, list, sell, purchase, exchange, or lease such manufactured housing without a license of a broker or salesperson, and who does not hold himself or herself out as a real estate broker;
304:5 Escrow Accounts. Amend RSA 331-A:13, VIII to read as follows:
VIII. If a principal broker licensed under this chapter holds funds entrusted to him or her pursuant to a written agreement for the sale or lease of real property and the written agreement expressly authorizes the principal broker, or firm, [corporation, or LLC,] as escrow agent, to continue to hold the funds in the event of a dispute between the buyer or tenant and seller or landlord concerning entitlement to the funds, no claim shall be maintained against the principal broker, or firm, [corporation, or LLC,] as escrow agent, whether as trustee, stakeholder, or otherwise, if the escrow agent has complied with the mutual written instructions of the buyer or tenant and seller or landlord, if any, and any order or judgment of a court or final decision of an arbitrator with regard to accounting for or disbursing the funds. In an action commenced with regard to entitlement to such escrowed funds, a party to the action may file a motion seeking an order to have the funds paid into court by the escrow agent. Written notice of the motion shall be given by the moving party to all other parties and to the escrow agent. The escrow agent shall pay the funds into court within 10 days of receipt of the order on the motion or within such other time as provided by the court.
304:6 Advertising; Contacts. Amend RSA 331-A:16, IV(b) to read as follows:
(b) Any advertising which contains a home telephone number, cell-phone number, beeper or pager number, home fax number, [or] direct office number, electronic mail address [of], or any other means of contacting directly an individual salesperson or broker, or a team of such licensees, shall also include the name and telephone number of the individual principal broker or brokerage firm through which the advertising licensees operate. All such advertising shall contain language clearly identifying each number included in the advertising.
304:7 New Paragraph; Programs of Study; Continuing Education. Amend RSA 331-A:20 by inserting after paragraph IV the following new paragraph:
V. Any individual, institution, or organization offering a preparatory or continuing education program who commits any of the following acts, conduct, or practices shall, after a hearing under RSA 331-A:30, be subject to disciplinary action as provided in RSA 331-A:28:
(a) Obtaining or attempting to obtain an accreditation or re-accreditation by means of fraud, misrepresentation, or concealment.
(b) Violating any of the provisions of this chapter, or any rules adopted or order issued pursuant to this chapter.
(c) Advertising the availability of accredited courses in a false, misleading, or deceptive manner.
(d) Failing to include in any advertisement the individual, institution, or organization’s legal name or reasonable derivative thereof accredited to teach the course.
(e) Offering or providing a course with curriculum or subject matter which is not the curriculum or subject matter submitted for accreditation.
(f) Engaging in conduct which demonstrates incompetence.
(g) Providing an affidavit of completion of an accredited course to a licensee or a potential licensee who has not completed the required hours of such course.
(h) Providing outdated, inappropriate, or inaccurate teaching materials or information.
(i) Receiving poor student evaluations or commission audits.
(j) Failing to take corrective action toward unsatisfactory performance or issues identified in commission audits.
(k) Demonstrating unprofessional conduct as defined by RSA 331-A:2, XV, or, when presenting a course to licensees or potential licensees, engaging in inappropriate conduct.
(l) Discriminating against an individual based on age, sex, race, creed, color, marital status, physical or mental disability, religious creed, national origin, or sexual orientation.
(m) Offering or providing a course for credit that has not yet been accredited or whose accreditation has expired.
(n) Failing to preserve, for at least 3 years from the beginning date of an accredited course, attendance records, documentation, and materials relating to the course.
304:8 New Paragraph; Disciplinary Actions. Amend RSA 331-A:28 by inserting after paragraph I the following new paragraph:
I-a. The commission may investigate the actions or qualifications of any person engaged in offering to present or presenting an accredited preparatory or continuing education program of study to licensees or potential licensees, when the commission receives a complaint or other information that indicates that the program of study is not meeting the requirements of the accreditation granted to an individual, institution, or organization, or is otherwise violating this chapter, or a lawful rule or order of the commission. If, after a hearing, the commission finds a violation of this chapter, the commission may impose one or more of the following sanctions:
(a) Suspend, revoke, or deny an accreditation or the renewal of an accreditation.
(b) Levy a fine not to exceed $2,000 for each offense.
(c) Require the person to complete a course or courses in selected areas of real estate practice or education relevant to the violation.
304:9 Appeal. Amend RSA 331-A:28, III to read as follows:
III. The action of the commission in revoking, suspending, or denying a license or accreditation, or levying a fine, shall be subject to appeal to the superior court at the instance of the licensee or an accredited individual, institution, or organization, within 30 days after the filing of the commission’s decision. An appeal shall suspend the commission’s decision. The record of the hearing of the action of the commission shall be presented to the superior court for review and the superior court shall give the review under this chapter priority on the court calendar. The superior court may confirm, reverse, or modify the commission’s decision, or order a trial de novo without a jury as justice may require.
304:10 Repeal. RSA 331-A:24-b, relative to handling charge for electronically paid fees, is repealed.
304:11 Effective Date. This act shall take effect 60 days after its passage.
Approved: July 13, 2010
Effective Date: September 11, 2010