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[Utah Code Table of Contents]
[TITLE 61. Table of Contents]
61-2-1 License required.
(1) It is unlawful for any person to engage in the business, act in the capacity of, advertise, or assume to act as a principal real estate broker, associate real estate broker, or a real estate sales agent within this state without a license obtained under this chapter.
(2) It is unlawful for any person outside the state to
engage in the business, act in the capacity of, advertise,
or assume to act as a principal real estate broker, associate
real estate broker, or a real estate sales agent with respect
to real estate located within the state without a license
obtained under this chapter.
1996
61-2-2 Definitions.
As used in this chapter:
(1) "Associate real estate broker" and "associate broker" means any person employed or engaged as an independent contractor by or on behalf of a licensed principal real estate broker to perform any act set out in Subsection (12) for valuable consideration, who has qualified under this chapter as a principal real estate broker.
(2) "Branch office" means a principal broker's real estate brokerage office other than the principal broker's main office.
(3) "Commission" means the Real Estate Commission established under this chapter.
(4) "Concurrence" means the entities given a concurring role must jointly agree for action to be taken.
(5) "Condominium" or "condominium unit" is as defined in Section 57-8-3 .
(6) "Condominium homeowners' association" means all of the condominium unit owners acting as a group in accordance with declarations and bylaws.
(7) (a) "Condominium hotel" means one or more condominium units that are operated as a hotel.
(b) "Condominium hotel" does not mean a hotel consisting of condominium units, all of which are owned by a single entity.
(8) "Director" means the director of the Division of Real Estate.
(9) "Division" means the Division of Real Estate.
(10) "Executive director" means the director of the Department of Commerce.
(11) "Main office" means the address which a principal broker designates with the division as the principal broker's primary brokerage office.
(12) "Principal real estate broker" and "principal broker" means any person:
(a) (i) who sells or lists for sale, buys, exchanges, or auctions real estate, options on real estate, or improvements on real estate with the expectation of receiving valuable consideration; or
(ii) who advertises, offers, attempts, or otherwise holds himself out to be engaged in the business described in Subsection (12)(a)(i);
(b) employed by or on behalf of the owner of real estate or by a prospective purchaser of real estate who performs any of the acts described in Subsection (12)(a), whether the person's compensation is at a stated salary, a commission basis, upon a salary and commission basis, or otherwise;
(c) who, with the expectation of receiving valuable consideration, manages property owned by another person or who advertises or otherwise holds himself out to be engaged in property management;
(d) who, with the expectation of receiving valuable consideration, assists or directs in the procurement of prospects for or the negotiation of the transactions listed in Subsections (12)(a) and (c); and
(e) except for mortgage lenders, title insurance agents, and their employees, who assists or directs in the closing of any real estate transaction with the expectation of receiving valuable consideration.
(13) (a) "Property management" means engaging in, with the expectation of receiving valuable consideration, the management of property owned by another person or advertising or otherwise claiming to be engaged in property management by:
(i) advertising for, arranging, negotiating, offering, or otherwise attempting or participating in a transaction calculated to secure the rental or leasing of real estate;
(ii) collecting, agreeing, offering, or otherwise attempting to collect rent for the real estate and accounting for and disbursing the money collected; or
(iii) authorizing expenditures for repairs to the real estate.
(b) "Property management" does not include:
(i) hotel or motel management;
(ii) rental of tourist accommodations, including hotels, motels, tourist homes, condominiums, condominium hotels, mobile home park accommodations, campgrounds, or similar public accommodations for any period of less than 30 consecutive days, and the management activities associated with these rentals; or
(iii) the leasing or management of surface or subsurface minerals or oil and gas interests, if the leasing or management is separate from a sale or lease of the surface estate.
(14) "Real estate" includes leaseholds and business opportunities involving real property.
(15) "Real estate sales agent" and "sales agent" mean any person affiliated with a licensed principal real estate broker, either as an independent contractor or an employee as provided in Section 61-2-25 , to perform for valuable consideration any act set out in Subsection (12).
(16) (a) "Regular salaried employee" means an individual who performs a service for wages or other remuneration, whose employer withholds federal employment taxes under a contract of hire, written or oral, express or implied.
(b) "Regular salaried employee" does not include a person who performs services on a project-by-project basis or on a commission basis.
(17) "Reinstatement" means restoring a license that has expired or has been suspended.
(18) "Reissuance" means the process by which a licensee may obtain a license following revocation of the license.
(19) "Renewal" means extending a license for an additional licensing period on or before the date the license expires.
(20) (a) "Undivided fractionalized long-term estate" means an ownership interest in real property by two or more persons that is a:
(i) tenancy in common; or
(ii) any other legal form of undivided estate in real property including:
(A) a fee estate;
(B) a life estate; or
(C) other long-term estate.
(b) "Undivided fractionalized long-term estate" does not
include a joint tenancy.
2005
61-2-3 Exempt persons and transactions.
(1) (a) Except as provided in Subsection (1)(b), a license under this chapter is not required for:
(i) any person who as owner or lessor performs the acts described in Subsection 61-2-2 (12) with reference to property owned or leased by that person;
(ii) a regular salaried employee of the owner or lessor of real estate who, with reference to nonresidential real estate owned or leased by the employer, performs the acts enumerated in Subsections 61-2-2 (12)(a) and (b);
(iii) a regular salaried employee of the owner of real estate who performs property management services with reference to real estate owned by the employer, except that the employee may only manage property for one employer;
(iv) a person who performs property management services for the apartments at which that person resides in exchange for free or reduced rent on that person's apartment;
(v) a regular salaried employee of a condominium homeowners' association who manages real property subject to the declaration of condominium that established the homeowners' association, except that the employee may only manage property for one condominium homeowners' association; and
(vi) a regular salaried employee of a licensed property management company who performs support services, as prescribed by rule, for the property management company.
(b) Subsection (1)(a) does not exempt from licensing:
(i) employees engaged in the sale of properties regulated under:
(A) Title 57, Chapter 11, Utah Uniform Land Sales Practices Act; and
(B) Title 57, Chapter 19, Timeshare and Camp Resort Act;
(ii) employees engaged in the sale of cooperative interests regulated under Title 57, Chapter 23, Real Estate Cooperative Marketing Act; or
(iii) any person whose interest as an owner or lessor was obtained by that person or transferred to that person for the purpose of evading the application of this chapter, and not for any other legitimate business reason.
(2) A license under this chapter is not required for:
(a) isolated transactions by persons holding a duly executed power of attorney from the owner;
(b) services rendered by an attorney at law in performing the attorney at law's duties as an attorney at law;
(c) a receiver, trustee in bankruptcy, administrator, executor, or any person acting under order of any court;
(d) a trustee or its employees under a deed of trust or a will; or
(e) any public utility, its officers, or regular salaried employees, unless performance of any of the acts set out in Subsection 61-2-2 (12) is in connection with the sale, purchase, lease, or other disposition of real estate or investment in real estate unrelated to the principal business activity of that public utility.
(3) A license under this chapter is not required for any person registered to act as a broker-dealer, agent, or investment advisor under the Utah and federal securities laws in the sale or the offer for sale of real estate if:
(a) (i) the real estate is a necessary element of a "security" as that term is defined by the Securities Act of 1933 and the Securities Exchange Act of 1934; and
(ii) the security is registered for sale:
(A) pursuant to the Securities Act of 1933; or
(B) by Title 61, Chapter 1, Utah Uniform Securities Act; or
(b) (i) it is a transaction in a security for which a Form D, described in 17 C.F.R. Sec. 239.500, has been filed with the Securities and Exchange Commission pursuant to Regulation D, Rule 506, 17 C.F.R. Sec. 230.506; and
(ii) the selling agent and the purchaser are not residents
of this state.
2006
61-2-4 One act for compensation qualifies person as broker or sales agent.
Except as provided in Section
61-2-3
, one act, for valuable consideration, of buying,
selling, leasing, managing, or exchanging real estate for
another, or of offering for another to buy, sell, lease,
manage, or exchange real estate, requires the person performing,
offering, or attempting to perform the act to be licensed
as a principal real estate broker, an associate real estate
broker, or a real estate sales agent as set forth in this
chapter.
1996
61-2-5 Division of Real Estate created - Functions - Director appointed - Functions.
(1) There is created within the Department of Commerce a Division of Real Estate. It is responsible for the administration and enforcement of:
(a) this chapter;
(b) Title 57, Chapter 11, Utah Uniform Land Sales Practices Act;
(c) Title 57, Chapter 19, Timeshare and Camp Resort Act;
(d) Title 57, Chapter 23, Real Estate Cooperative Marketing Act;
(e) Chapter 2a, Real Estate Education, Research, and Recovery Fund;
(f) Chapter 2b, Real Estate Appraiser Licensing and Certification Act; and
(g) Chapter 2c, Utah Residential Mortgage Practices Act.
(2) The division is under the direction and control of a director appointed by the executive director of the department with the approval of the governor. The director holds the office of director at the pleasure of the governor.
(3) The director, with the approval of the executive director, may employ personnel necessary to discharge the duties of the division at salaries to be fixed by the director according to standards established by the Department of Administrative Services.
(4) On or before October 1 of each year, the director shall, in conjunction with the department, report to the governor and the Legislature concerning the division's work for the preceding fiscal year ending June 30.
(5) The director, in conjunction with the executive director,
shall prepare and submit to the governor and the Legislature
a budget for the fiscal year next following the convening
of the Legislature.
2000
61-2-5.1 Procedures - Adjudicative proceedings.
The Division of Real Estate shall comply with the procedures
and requirements of Title 63, Chapter 46b, Administrative
Procedures Act, in its adjudicative proceedings.
1997
61-2-5.5 Real Estate Commission created - Functions - Appointment - Qualification and terms of members - Expenses - Meetings.
(1) There is created within the division a Real Estate Commission. The commission shall:
(a) make rules for the administration of this chapter that are not inconsistent with this chapter, including:
(i) licensing of:
(A) principal brokers;
(B) associate brokers;
(C) sales agents;
(D) real estate companies; and
(E) branch offices;
(ii) prelicensing and postlicensing education curricula;
(iii) examination procedures;
(iv) the certification and conduct of:
(A) real estate schools;
(B) course providers; and
(C) instructors;
(v) proper handling of funds received by real estate licensees;
(vi) brokerage office procedures and recordkeeping requirements;
(vii) property management;
(viii) standards of conduct for real estate licensees; and
(ix) rules made under Section 61-2-26 regarding an undivided fractionalized long-term estate;
(b) establish, with the concurrence of the division, all fees as provided in this chapter and Title 61, Chapter 2a, Real Estate Recovery Fund Act;
(c) conduct all administrative hearings not delegated by the commission to an administrative law judge or the division relating to the:
(i) licensing of any applicant;
(ii) conduct of any licensee; or
(iii) the certification or conduct of any real estate school, course provider, or instructor regulated under this chapter;
(d) with the concurrence of the director, impose sanctions against licensees and certificate holders as provided in Section 61-2-11 ;
(e) advise the director on the administration and enforcement of any matters affecting the division and the real estate sales and property management industries;
(f) advise the director on matters affecting the division budget;
(g) advise and assist the director in conducting real estate seminars; and
(h) perform other duties as provided by:
(i) this chapter; and
(ii) Title 61, Chapter 2a, Real Estate Recovery Fund Act.
(2) (a) The commission shall be comprised of five members appointed by the governor and approved by the Senate.
(b) Four of the commission members shall:
(i) have at least five years' experience in the real estate business; and
(ii) hold an active principal broker, associate broker, or sales agent license.
(c) One commission member shall be a member of the general public.
(d) No more than one commission member may be appointed from any given county in the state.
(3) (a) Except as required by Subsection (3)(b), as terms of current commission members expire, the governor shall appoint each new member or reappointed member to a four-year term ending June 30.
(b) Notwithstanding the requirements of Subsection (3)(a), the governor shall, at the time of appointment or reappointment, adjust the length of terms to ensure that the terms of commission members are staggered so that approximately half of the commission is appointed every two years.
(c) Upon the expiration of the term of a member of the commission, the member of the commission shall continue to hold office until a successor is appointed and qualified.
(d) A commission member may not serve more than two consecutive terms.
(e) Members of the commission shall annually select one member to serve as chair.
(4) When a vacancy occurs in the membership for any reason, the replacement shall be appointed for the unexpired term.
(5) (a) A member shall receive no compensation or benefits for the member's services, but may receive per diem and expenses incurred in the performance of the member's official duties at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107 .
(b) A member may decline to receive per diem and expenses for the member's service.
(6) (a) The commission shall meet at least monthly.
(b) The director may call additional meetings:
(i) at the director's discretion;
(ii) upon the request of the chair; or
(iii) upon the written request of three or more commission members.
(7) Three members of the commission constitute a quorum
for the transaction of business.
2006
61-2-6 Licensing procedures and requirements.
(1) (a) Except as provided in Subsection (5), the commission shall determine the qualifications and requirements of applicants for:
(i) a principal broker license;
(ii) an associate broker license; or
(iii) a sales agent license.
(b) The division, with the concurrence of the commission, shall require and pass upon proof necessary to determine the honesty, integrity, truthfulness, reputation, and competency of each applicant for an initial license or for renewal of an existing license.
(c) (i) The division, with the concurrence of the commission, shall require an applicant for:
(A) a sales agent license to complete an approved educational program not to exceed 90 hours; and
(B) an associate broker or principal broker license to complete an approved educational program not to exceed 120 hours.
(ii) The hours required by this section mean 50 minutes of instruction in each 60 minutes.
(iii) The maximum number of program hours available to an individual is ten hours per day.
(d) The division, with the concurrence of the commission, shall require the applicant to pass an examination approved by the commission covering:
(i) the fundamentals of:
(A) the English language;
(B) arithmetic;
(C) bookkeeping; and
(D) real estate principles and practices;
(ii) the provisions of this chapter;
(iii) the rules established by the commission; and
(iv) any other aspect of Utah real estate license law considered appropriate.
(e) (i) Three years' full-time experience as a real estate sales agent or its equivalent is required before any applicant may apply for, and secure a principal broker or associate broker license in this state.
(ii) The commission shall establish by rule, made in accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act, the criteria by which the commission will accept experience or special education in similar fields of business in lieu of the three years' experience.
(2) (a) The division, with the concurrence of the commission, may require an applicant to furnish a sworn statement setting forth evidence satisfactory to the division of the applicant's reputation and competency as set forth by rule.
(b) The division shall require an applicant to provide the applicant's Social Security number, which is a private record under Subsection 63-2-302 (1)(h).
(3) (a) A nonresident principal broker may be licensed in this state by conforming to all the provisions of this chapter except that of residency.
(b) A nonresident associate broker or sales agent may become licensed in this state by:
(i) conforming to all the provisions of this chapter except that of residency; and
(ii) being employed or engaged as an independent contractor by or on behalf of a nonresident or resident principal broker who is licensed in this state.
(4) (a) Except as provided in Subsection 61-2-9 (1)(e)(iv), an applicant who has had a real estate license revoked:
(i) shall be relicensed as prescribed for an original application; and
(ii) may not apply for a new license until at least five years after the day on which the license is revoked.
(b) In the case of an applicant for a new license as a principal broker or associate broker, the applicant is not entitled to credit for experience gained prior to the revocation of a real estate license.
(5) (a) Notwithstanding Subsection (1), the commission may delegate to the division the authority to:
(i) review a class or category of applications for initial or renewed licenses;
(ii) determine whether an applicant meets the licensing criteria in Subsection (1); and
(iii) approve or deny a license application without concurrence by the commission.
(b) (i) If the commission delegates to the division the authority to approve or deny an application without concurrence by the commission and the division denies an application for licensure, the applicant who is denied licensure may petition the commission for review of the denial of licensure.
(ii) An applicant who is denied licensure pursuant to
this Subsection (5) may seek agency review by the executive
director only after the commission has reviewed the division's
denial of the applicant's application.
2005
61-2-7 Form of license - Display of license.
The division shall issue to each licensee a wall license
showing the name and address of the licensee. The seal of
the state shall be affixed to each license. Each license
shall contain any other matter prescribed by the division
and shall be delivered or mailed to the address furnished
by the licensee. The wall licenses of principal brokers,
associate brokers, and sales agents who are affiliated with
an office shall be kept in the office to be made available
on request.
1991
61-2-7.1 Change of information - Failure to notify - Notification to an applicant, licensee, or certificate holder.
(1) An applicant, licensee, or certificate holder shall send the division a signed statement in the form required by the division notifying the division within ten business days of any change of:
(a) principal broker;
(b) principal business location;
(c) mailing address;
(d) home street address;
(e) an individual's name; or
(f) business name.
(2) The division may charge a fee established in accordance with Section 63-38-3.2 for processing any notification of change submitted by an applicant, licensee, or certificate holder.
(3) (a) When providing the division a business location or home street address, a physical location or street address must be provided.
(b) When providing a mailing address, an applicant, licensee, or certificate holder may provide a post office box or other mail drop location.
(4) Failure to notify the division of a change described in Subsection (1) is separate grounds for disciplinary action against the applicant, licensee, or certificate holder.
(5) An applicant, licensee, or certificate holder is considered
to have received any notification that has been sent to the
last address furnished to the division by the applicant,
licensee, or certificate holder.
2005
61-2-7.2 Reporting requirements.
Principal brokers, associate brokers, and sales agents shall send the division a signed statement notifying the division of the following within ten business days:
(1) conviction of any criminal offense; or
(2) filing a personal or brokerage bankruptcy.
2000
61-2-8 Discharge of associate broker or sales agent by principal broker - Notice.
If an associate broker or sales agent is discharged by
a principal broker, the principal broker shall, within three
days, send the division a signed statement notifying the
division of the discharge. The principal broker shall address
a communication to the last-known residence address of that
associate broker or sales agent advising him that notice
of his termination has been delivered or sent to the division.
It is unlawful for any associate broker or sales agent to
perform any of the acts under this chapter, directly or indirectly,
from and after the date of receipt of the termination notice
until affiliation with a principal broker has been established.
2000
61-2-9 Examination and license fees - Background check - Renewal of licenses - Education requirements - Activation of inactive licenses - Recertification - Licenses of firm, partnership, or association - Miscellaneous fees.
(1) (a) Upon filing an application for a principal broker, associate broker, or sales agent license examination, the applicant shall pay a nonrefundable fee as determined by the commission with the concurrence of the division under Section 63-38-3.2 for admission to the examination.
(b) A principal broker, associate broker, or sales agent applicant shall pay a nonrefundable fee as determined by the commission with the concurrence of the division under Section 63-38-3.2 for issuance of an initial license or license renewal.
(c) Each license issued under this Subsection (1) shall be issued for a period of not less than two years as determined by the division with the concurrence of the commission.
(d) (i) Any new sales agent applicant shall:
(A) submit fingerprint cards in a form acceptable to the division at the time the license application is filed; and
(B) consent to a fingerprint background check by the Utah Bureau of Criminal Identification and the Federal Bureau of Investigation regarding the application.
(ii) The division shall request the Department of Public Safety to complete a Federal Bureau of Investigation criminal background check for each new sales agent applicant through the national criminal history system (NCIC) or any successor system.
(iii) The cost of the background check and the fingerprinting shall be borne by the applicant.
(iv) Funds paid to the division by an applicant for the cost of the background check shall be nonlapsing.
(e) (i) Any new sales agent license issued under this section shall be conditional, pending completion of the criminal background check. If the criminal background check discloses the applicant has failed to accurately disclose a criminal history, the license shall be immediately and automatically revoked.
(ii) Any person whose conditional license has been revoked under Subsection (1)(e)(i) shall be entitled to a post-revocation hearing to challenge the revocation. The hearing shall be conducted in accordance with Title 63, Chapter 46b, Administrative Procedures Act.
(iii) The division director shall designate one of the following to act as the presiding officer in a post-revocation hearing described in this Subsection (1)(e):
(A) the division; or
(B) the division with the concurrence of the commission.
(iv) The decision on whether relief from the revocation of a license under this Subsection (1)(e) will be granted shall be made by the presiding officer.
(v) Relief from a revocation under this Subsection (1)(e) may be granted only if:
(A) the criminal history upon which the division based the revocation:
(I) did not occur; or
(II) is the criminal history of another person;
(B) (I) the revocation is based on a failure to accurately disclose a criminal history; and
(II) the applicant had a reasonable good faith belief at the time of application that there was no criminal history to be disclosed; or
(C) the division failed to follow the prescribed procedure for the revocation.
(vi) If a revocation under this Subsection (1)(e) is upheld after a post-revocation hearing, the person may not apply for a new license until at least 12 months after the day on which the final decision upholding the revocation is issued.
(2) (a) (i) A license expires if it is not renewed on or before its expiration date.
(ii) As a condition of renewal, each active licensee shall demonstrate competence:
(A) by viewing an approved real estate education video program and completing a supplementary workbook; or
(B) by completing 12 hours of professional education approved by the division and commission within each two-year renewal period.
(iii) The division with the concurrence of the commission shall certify education which may include:
(A) state conventions;
(B) home study courses;
(C) video courses; and
(D) closed circuit television courses.
(iv) The commission with concurrence of the division may exempt a licensee from the education requirement of this Subsection (2)(a) for a period not to exceed four years:
(A) upon a finding of reasonable cause, including military service; and
(B) under conditions established by rule made in accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act.
(b) For a period of 30 days after the expiration date of a license, the license may be reinstated upon:
(i) payment of a renewal fee and a late fee determined by the commission with the concurrence of the division under Section 63-38-3.2 ; and
(ii) providing proof acceptable to the division and the commission of the licensee having completed the hours of education or demonstrated competence as required under Subsection (2)(a).
(c) After the 30-day period described in Subsection (2)(b), and until six months after the expiration date, the license may be reinstated by:
(i) paying a renewal fee and a late fee determined by the commission with the concurrence of the division under Section 63-38-3.2 ;
(ii) providing to the division proof of satisfactory completion of 12 hours of continuing education:
(A) in addition to the requirements for a timely renewal; and
(B) on a subject determined by the commission by rule made in accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act; and
(iii) providing proof acceptable to the division and the commission of the licensee having:
(A) completed the hours of education; or
(B) demonstrated competence as required under Subsection (2)(a).
(d) A person who does not renew that person's license within six months after the expiration date shall be relicensed as prescribed for an original application.
(3) (a) As a condition for the activation of an inactive license that was in an inactive status at the time of the licensee's most recent renewal, the licensee shall supply the division with proof of:
(i) successful completion of the respective sales agent or broker licensing examination within six months prior to applying to activate the license; or
(ii) the successful completion of 12 hours of continuing education that the licensee would have been required to complete under Subsection (2)(a) if the license had been on active status at the time of the licensee's most recent renewal.
(b) The commission may, in accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act, establish by rule:
(i) the nature or type of continuing education required for reactivation of a license; and
(ii) how long prior to reactivation the continuing education must have been completed.
(4) (a) A principal broker license may be granted to a corporation, partnership, or association if the corporation, partnership, or association has affiliated with it an individual who:
(i) has qualified as a principal broker under the terms of this chapter; and
(ii) serves in the capacity of a principal broker.
(b) Application for the license described in Subsection (4)(a) shall be made in accordance with the rules adopted by the division with the concurrence of the commission.
(5) The division may charge and collect reasonable fees determined by the commission with the concurrence of the division under Section 63-38-3.2 to cover the costs for:
(a) issuance of a new or duplicate license;
(b) license histories or certifications;
(c) certified copies of official documents, orders, and other papers and transcripts;
(d) certifying real estate schools, courses, and instructors, the fees for which shall, notwithstanding Section 13-1-2 , be deposited in the Real Estate Education, Research, and Recovery Fund; and
(e) other duties required by this chapter.
(6) If a licensee submits or causes to be submitted a check, draft, or other negotiable instrument to the division for payment of fees, and the check, draft, or other negotiable instrument is dishonored, the transaction for which the payment was submitted is void and will be reversed by the division if payment of the applicable fee is not received in full.
(7) (a) The fees under this chapter and the additional license fee for the Real Estate Education, Research, and Recovery Fund under Section 61-2a-4 are in lieu of all other license fees or assessments that might otherwise be imposed or charged by the state or any of its political subdivisions, upon, or as a condition of, the privilege of conducting the business regulated by this chapter, except that a political subdivision within the state may charge a business license fee on a principal broker if the principal broker maintains a place of business within the jurisdiction of the political subdivision.
(b) Unless otherwise exempt, each licensee under this
chapter is subject to all taxes imposed under Title 59, Revenue
and Taxation.
2005
61-2-10 Restriction on commissions - Affiliation with more than one broker - Specialized licenses - Designation of agents or brokers.
(1) It is unlawful for any associate broker or sales agent to accept valuable consideration for the performance of any of the acts specified in this chapter from any person except the principal broker with whom he is affiliated and licensed.
(2) An inactive associate broker or sales agent is not authorized to conduct real estate transactions until the inactive associate broker or sales agent becomes affiliated with a licensed principal broker and submits the required documentation to the division. An inactive principal broker is not authorized to conduct real estate transactions until the principal broker's license is activated with the division.
(3) No sales agent or associate broker may affiliate with more than one principal broker at the same time.
(4) (a) Except as provided by rule, a principal broker may not be responsible for more than one real estate brokerage at the same time.
(b) In addition to issuing principal broker, associate broker, and sales agent licenses authorizing the performance of all of the acts set forth in Subsection 61-2-2 (12), the division may issue specialized sales licenses and specialized property management licenses with the scope of practice limited to the specialty. An individual may hold a specialized license in addition to a license to act as a principal broker, an associate broker, or a sales agent. The commission may adopt rules pursuant to Title 63, Chapter 46a, Utah Administrative Procedures Act, for the administration of this provision, including prelicensing and postlicensing education requirements, examination requirements, affiliation with real estate brokerages or property management companies, and other licensing procedures.
(c) An individual may not be a principal broker of a brokerage and a sales agent or associate broker for a different brokerage at the same time.
(5) Any owner, purchaser, lessor, or lessee who engages
the services of a principal broker may designate which sales
agents or associate brokers affiliated with that principal
broker will also represent that owner, purchaser, lessor,
or lessee in the purchase, sale, lease, or exchange of real
estate, or in exercising an option relating to real estate.
1996
61-2-11 Investigations - Subpoena power of division - Grounds for disciplinary action.
The division may investigate or cause to be investigated the actions of any principal broker, associate broker, sales agent, real estate school, course provider, or school instructor licensed or certified by this state, or of any applicant for licensure or certification, or of any person who acts in any of those capacities within this state. The division is empowered to subpoena witnesses, take evidence, and require by subpoena duces tecum the production of books, papers, contracts, records, other documents, or information considered relevant to the investigation. The division may serve subpoenas by certified mail. Each failure to respond to a subpoena is considered as a separate violation of this chapter. The commission, with the concurrence of the director, may impose a civil penalty in an amount not to exceed $2,500 per violation, impose educational requirements, and suspend, revoke, place on probation, or deny renewal, reinstatement, or reissuance of any license or any certification if at any time the licensee or certificate holder, whether acting as an agent or on his own account, is found guilty of:
(1) making any substantial misrepresentation;
(2) making any false promises of a character likely to influence, persuade, or induce;
(3) pursuing a continued and flagrant course of misrepresentation, or of making false promises through agents, sales agents, advertising, or otherwise;
(4) acting for more than one party in a transaction without the informed consent of all parties;
(5) (a) acting as an associate broker or sales agent while not licensed with a licensed principal broker;
(b) representing or attempting to represent a broker other than the principal broker with whom the person is affiliated; or
(c) representing as sales agent or having a contractual relationship similar to that of sales agent with other than a licensed principal broker;
(6) (a) failing, within a reasonable time, to account for or to remit any monies coming into the person's possession that belong to others;
(b) commingling the funds described in Subsection (6)(a) with the person's own; or
(c) diverting the funds described in Subsection (6)(a) from the purpose for which they were received;
(7) paying or offering to pay valuable consideration, as defined by the commission, to any person not licensed under this chapter, except that valuable consideration may be shared:
(a) with a licensed principal broker of another jurisdiction; or
(b) as provided under:
(i) Title 16, Chapter 10a, Utah Revised Business Corporation Act;
(ii) Title 16, Chapter 11, Professional Corporation Act; or
(iii) Title 48, Chapter 2c, Utah Revised Limited Liability Company Act;
(8) being unworthy or incompetent to act as a principal broker, associate broker, or sales agent in such manner as to safeguard the interests of the public;
(9) failing to voluntarily furnish copies of all documents to all parties executing the documents;
(10) failing to keep and make available for inspection by the division a record of each transaction, including:
(a) the names of buyers and sellers or lessees and lessors;
(b) the identification of the property;
(c) the sale or rental price;
(d) any monies received in trust;
(e) any agreements or instructions from buyers and sellers or lessees and lessors; and
(f) any other information required by rule;
(11) failing to disclose, in writing, in the purchase, sale, or rental of property, whether the purchase, sale, or rental is made for himself or for an undisclosed principal;
(12) regardless of whether the crime was related to real estate, being convicted of a criminal offense involving moral turpitude within five years of the most recent application, including a conviction based upon a plea of nolo contendere, or a plea held in abeyance to a criminal offense involving moral turpitude;
(13) advertising the availability of real estate or the services of a licensee in a false, misleading, or deceptive manner;
(14) in the case of a principal broker or a licensee who is a branch manager, failing to exercise reasonable supervision over the activities of the principal broker's or branch manager's licensees and any unlicensed staff;
(15) violating or disregarding this chapter, an order of the commission, or the rules adopted by the commission and the division;
(16) breaching a fiduciary duty owed by a licensee to the licensee's principal in a real estate transaction;
(17) any other conduct which constitutes dishonest dealing;
(18) unprofessional conduct as defined by statute or rule; or
(19) suspension, revocation, surrender, or cancellation
of a real estate license issued by another jurisdiction,
or of another professional license issued by this or another
jurisdiction, based on misconduct in a professional capacity
that relates to character, honesty, integrity, or truthfulness.
2006
61-2-11.5 Investigations related to an undivided fractionalized long-term estate.
In addition to any action authorized by Section 61-2-11 , in relationship to the offer or sale of an undivided fractionalized long-term estate:
(1) the division may make any public or private investigation within or outside of this state as the division considers necessary to determine whether any person has violated, is violating, or is about to violate this chapter or any rule or order under this chapter;
(2) to aid in the enforcement of this chapter or in the prescribing of rules and forms under this chapter, the division may require or permit any person to file a statement in writing, under oath or otherwise as to all facts and circumstances concerning the matter to be investigated; and
(3) for the purpose of the investigation described in Subsection (1), the division or any employee designated by the division may:
(a) administer oaths and affirmation; or
(b) take any action permitted by Section 61-2-11 including:
(i) subpoena witnesses and compel their attendance;
(ii) take evidence; and
(iii) require the production of any books, papers, correspondence,
memoranda, agreement, or other documents or records relevant
or material to the investigation.
2005
61-2-12 Disciplinary action - Judicial review.
(1) (a) On the basis of a violation of Section 61-2-11 , the division shall give notice to the licensee or certificate holder and commence an adjudicative proceeding before:
(i) imposing an educational requirement;
(ii) imposing a civil penalty; or
(iii) taking any of the following actions related to a license or certificate:
(A) revoking;
(B) suspending;
(C) placing on probation; or
(D) denying the renewal, reinstatement, or reissuance.
(b) If the licensee is an active sales agent or active associate broker, the division shall inform the principal broker with whom the licensee is affiliated of the charge and of the time and place of any hearing.
(c) If the presiding officer at a hearing determines that any licensee or certificate holder is guilty of a violation of this chapter, the division by written order may:
(i) with regard to the license or certificate:
(A) suspend;
(B) revoke;
(C) place on probation; or
(D) deny renewal, reinstatement, or reissuance; or
(ii) impose a civil penalty.
(2) (a) Any applicant, certificate holder, licensee, or person aggrieved, including the complainant, may obtain agency review by the executive director and judicial review of any adverse ruling, order, or decision of the division.
(b) If the applicant, certificate holder, or licensee prevails in the appeal and the court finds that the state action was undertaken without substantial justification, the court may award reasonable litigation expenses to the applicant, certificate holder, or licensee as provided under Title 78, Chapter 27a, Small Business Equal Access to Justice Act.
(c) (i) An order, ruling, or decision of the division shall take effect and become operative 30 days after the service of the order, ruling, or decision unless otherwise provided in the order.
(ii) If an appeal is taken by a licensee, the division may stay enforcement of an order, ruling, or decision in accordance with Section 63-46b-18 .
(iii) The appeal shall be governed by the Utah Rules of Appellate Procedure.
(3) The commission and the director shall comply with
the procedures and requirements of Title 63, Chapter 46b,
Administrative Procedures Act, in all adjudicative proceedings.
2005
61-2-13 Grounds for revocation of principal broker's license - Automatic inactivation of affiliated associate brokers and sales agents licenses.
(1) Any unlawful act or any violation of this chapter committed by any real estate sales agent or associate broker employed or engaged as an independent contractor by or on behalf of a licensed principal broker or committed by any employee, officer, or member of a licensed principal broker is cause for the revocation, suspension, or probation of the principal broker's license, or for the imposition of a fine against the principal broker in an amount not to exceed $500 per violation.
(2) The revocation or suspension of a principal broker
license automatically inactivates every associate broker
or sales agent license granted to those persons by reason
of their affiliation with the principal broker whose license
was revoked or suspended, pending a change of broker affiliation.
A principal broker shall, prior to the effective date of
the suspension or revocation of his license, notify in writing
every licensee affiliated with him of the revocation or suspension
of his license.
1991
61-2-13.5 Court-ordered discipline.
The division shall promptly withhold, suspend, restrict,
or reinstate the use of a license issued under this chapter
if so ordered by a court.
1997
61-2-14 List of licensees to be available.
The division shall make available at reasonable cost a
list of the names and addresses of all persons licensed by
it under this chapter.
1983
61-2-17 Penalty for violation of chapter.
(1) Any individual violating this chapter, in addition to being subject to a license sanction or a fine ordered by the commission, is, upon conviction of a first violation, guilty of a class A misdemeanor. Any imprisonment shall be for a term not to exceed six months. If the violator is a corporation, it is, upon conviction of a first violation, guilty of a class A misdemeanor.
(2) Upon conviction of a second or subsequent violation, an individual is guilty of a third degree felony. Imprisonment shall be for a term not to exceed two years. If a corporation is convicted of a second or subsequent violation, it is guilty of a third degree felony.
(3) Any officer or agent of a corporation, or any member or agent of a partnership or association, who personally participates in or is an accessory to any violation of this chapter by such corporation, partnership, or association, is subject to the penalties prescribed for individuals.
(4) If any person receives any money or its equivalent, as commission, compensation, or profit by or in consequence of a violation of this chapter, that person is liable for an additional penalty of not less than the amount of the money received and not more than three times the amount of money received, as may be determined by the court. This penalty may be sued for in any court of competent jurisdiction, and recovered by any person aggrieved for his own use and benefit.
(5) All fines imposed by the commission and the director
under this chapter shall, notwithstanding Section
13-1-2
, be deposited into the Real Estate Education,
Research, and Recovery Fund to be used in a manner consistent
with the requirements of the Real Estate Recovery Fund Act.
1993
61-2-18 Actions for recovery of compensation restricted.
(1) No person may bring or maintain an action in any court of this state for the recovery of a commission, fee, or compensation for any act done or service rendered which is prohibited under this chapter to other than licensed principal brokers, unless the person was duly licensed as a principal broker at the time of the doing of the act or rendering the service.
(2) No sales agent or associate broker may sue in his
own name for the recovery of a fee, commission, or compensation
for services as a sales agent or associate broker unless
the action is against the principal broker with whom he is
or was licensed. Any action for the recovery of a fee, commission,
or other compensation may only be instituted and brought
by the principal broker with whom the sales agent or associate
broker is affiliated.
1985
61-2-20 Rights and privileges of real estate licensees.
Real estate licensees may fill out only those legal forms approved by the commission and the attorney general, and those forms provided by statute, with the following exceptions:
(1) Principal brokers and associate brokers may fill out any documents associated with the closing of a real estate transaction.
(2) Real estate licensees may fill out real estate forms prepared by legal counsel of the buyer, seller, lessor, or lessee.
(3) If the commission and the attorney general have not
approved a specific form for the transaction, principal brokers,
associate brokers, and sales agents may fill out real estate
forms prepared by any legal counsel, including legal counsel
retained by the brokerage to develop these forms.
1993
61-2-21 Remedies and action for violations.
(1) (a) If the director has reason to believe that any person has been, is engaging in, or is about to engage in acts constituting violations of this chapter, and if it appears to the director that it would be in the public interest to stop such acts, the director shall issue and serve upon the person an order directing that person to cease and desist from those acts.
(b) Within ten days after receiving the order, the person upon whom the order is served may request an adjudicative proceeding.
(c) Pending the hearing, any cease and desist order shall remain in effect.
(d) If a request for a hearing is made, the division shall follow the procedures and requirements of Title 63, Chapter 46b, Administrative Procedures Act.
(2) (a) After the hearing, if the commission and the director agree that the acts of the person violate this chapter, the director:
(i) shall issue an order making the order issued under Subsection (1) permanent; and
(ii) may impose a fine.
(b) If no hearing is requested and if the person fails to cease the acts, or after discontinuing the acts, again commences the acts, the director shall file suit in the name of the Department of Commerce and the Division of Real Estate, in the district court in the county in which the acts occurred or where the person resides or carries on business, to enjoin and restrain the person from violating this chapter.
(c) The district courts of this state shall have jurisdiction of these suits.
(d) Upon a proper showing in an action brought under this section related to an undivided fractionalized long-term estate, the court may:
(i) issue a permanent or temporary, prohibitory or mandatory injunction;
(ii) issue a restraining order or writ of mandamus;
(iii) enter a declaratory judgment;
(iv) appoint a receiver or conservator for the defendant or the defendant's assets;
(v) order disgorgement;
(vi) order rescission;
(vii) impose a fine of not more than $500 for each violation of this chapter; and
(viii) enter any other relief the court considers just.
(e) The court may not require the division to post a bond in an action brought under this Subsection (2).
(3) The remedies and action provided in this section may
not interfere with, or prevent the prosecution of, any other
remedies or actions including criminal proceedings.
2005
61-2-22 Separability.
If any provision of this chapter, or the application of
any provision to any person or circumstance, is held invalid,
the remainder of this chapter shall not be affected thereby.
1985
61-2-24 Mishandling of trust funds.
(1) The division may audit principal brokers' trust accounts or other accounts in which a licensee maintains trust funds under this chapter. If the division's audit shows, in the opinion of the division, gross mismanagement, commingling, or misuse of funds, the division, with the concurrence of the commission, may order a complete audit of the account by a certified public accountant at the licensee's expense, or take other action in accordance with Section 61-2-12 .
(2) The licensee may obtain agency review by the executive director or judicial review of any division order.
(3) If it appears that a person has grossly mismanaged,
commingled, or otherwise misused trust funds, the division,
with or without prior administrative proceedings, may bring
an action in the district court of the district where the
person resides or maintains a place of business, or where
the act or practice occurred or is about to occur, to enjoin
the acts or practices and to enforce compliance with this
chapter or any rule or order under this chapter. Upon a proper
showing, the court shall grant injunctive relief or a temporary
restraining order, and may appoint a receiver or conservator.
The division is not required to post a bond in any court
proceeding.
1996
61-2-25 Sales agents - Affiliated with broker as independent contractors or employees - Presumption.
A sales agent may be affiliated with a licensed principal
real estate broker either as an independent contractor or
as an employee. The relationship between sales agent and
broker is presumed to be an independent contractor relationship
unless there is clear and convincing evidence that the relationship
was intended by the parties to be an employer employee relationship.
2003
61-2-26 Rulemaking required for offer or sale of an undivided fractionalized long-term estate - Disclosures - Management agreement.
(1) (a) A licensee or certificate holder under this chapter who sells or offers to sell an undivided fractionalized long-term estate shall comply with the disclosure requirements imposed by rules made by the commission under this section.
(b) In accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act, the commission shall make rules as to the timing, form, and substance of disclosures required to be made by a licensee or certificate holder under this section.
(2) In accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act, the commission shall make rules imposing requirements for a management agreement related to an undivided fractionalized long-term estate that makes the offer or sale of the undivided fractionalized long-term estate treated as a real estate transaction and not treated as an offer or sale of a security under Chapter 1, Utah Uniform Securities Act.
(3) In accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act, the commission shall make rules establishing:
(a) the disclosures required in the sale or offer of an undivided fractionalized long-term estate that is subject to a master lease;
(b) requirements for the management of a master lease on an undivided fractionalized long-term estate; and
(c) the requirements on the structure of a master lease
on an undivided fractionalized long-term estate.
2005
61-2-27 Exclusive brokerage agreement.
(1) As used in this section:
(a) "Client" means a person who makes an exclusive brokerage agreement with a principal broker under Subsection (1)(c).
(b) "Closed" means that:
(i) all documents required to be executed under the contract are executed;
(ii) all monies required to be paid by either party under the contract are paid in the form of collected or cleared funds;
(iii) the proceeds of any new loan are delivered by the lender to the seller; and
(iv) all applicable documents are recorded in the office of the county recorder for the county in which the property is located.
(c) "Exclusive brokerage agreement" means a written agreement between a client and a principal broker:
(i) (A) to list for sale, lease, or exchange:
(I) real estate;
(II) an option on real estate; or
(III) an improvement on real estate; or
(B) for representation in the purchase, lease, or exchange of:
(I) real estate;
(II) an option on real estate; or
(III) an improvement on real estate;
(ii) that gives the principal broker the sole right to act as the agent or representative of the client for the purchase, sale, lease, or exchange of:
(A) real estate;
(B) an option on real estate; or
(C) an improvement on real estate; and
(iii) that gives the principal broker the expectation of receiving valuable consideration in exchange for the principal broker's services.
(2) (a) Except as provided in Subsection (2)(b), a principal broker subject to an exclusive brokerage agreement shall:
(i) accept delivery of and present to the client offers and counteroffers to buy, lease, or exchange the client's property;
(ii) assist the client in developing, communicating, and presenting offers, counteroffers, and notices; and
(iii) answer any question the client has concerning:
(A) an offer;
(B) a counteroffer;
(C) a notice; and
(D) a contingency.
(b) A principal broker subject to an exclusive brokerage agreement need not comply with Subsection (2)(a) after:
(i) an agreement for the sale, lease, or exchange of the real estate, option on real estate, or improvement on real estate is:
(A) signed;
(B) all contingencies related to the sale, lease, or exchange are satisfied or waived; and
(C) the sale, lease, or exchange is closed; or
(ii) the exclusive brokerage agreement expires or terminates.
(3) A principal broker who violates this section is subject
to Section
61-2-17
.
2005
