0001| SENATE BILL 137
|
0002| 43RD LEGISLATURE - STATE OF NEW MEXICO - SECOND SESSION, 1998
|
0003| INTRODUCED BY
|
0004| MARK L. BOITANO
|
0005|
|
0006|
|
0007|
|
0008|
|
0009|
|
0010| AN ACT
|
0011| RELATING TO THE REAL ESTATE COMMISSION; CREATING THE REAL
|
0012| ESTATE COMMISSION FUND; CHANGING AMOUNTS AUTHORIZED TO BE
|
0013| CHARGED AS FEES; CHANGING TERMINOLOGY RELATED TO CONTINUING
|
0014| EDUCATION; CHANGING THE SHORT TITLE PROVISION OF THE REAL
|
0015| ESTATE RECOVERY FUND ACT.
|
0016|
|
0017| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
|
0018| Section 1. Section 61-29-4 NMSA 1978 (being Laws 1959,
|
0019| Chapter 226, Section 3, as amended) is amended to read:
|
0020| "61-29-4. CREATION OF COMMISSION--POWERS AND DUTIES.--
|
0021| [There is created]
|
0022| A. The New Mexico real estate commission
|
0023| [called] is created and may be referred to as "the
|
0024| commission" in Chapter 61, Article 29 NMSA 1978. The
|
0025| commission [shall be appointed by the governor and shall
|
- 1 -
consist] consists of five members appointed by the
|
0002| governor. [who shall have been] Members must have been
|
0003| residents of the state for three consecutive years immediately
|
0004| prior to their appointment. Four [of whom shall have been]
|
0005| shall be real estate brokers licensed in New Mexico and one
|
0006| [of whom] shall be a [member of the public] natural
|
0007| person who has never been licensed as a real estate broker or
|
0008| salesperson. [provided] Not more than one member [shall]
|
0009| may be from [any] one county [within the state]. The
|
0010| members of the commission shall serve for a period of five
|
0011| years or until their successors are appointed and qualified.
|
0012| Members appointed to fill vacancies shall [be appointed]
|
0013| serve for [any] the unexpired term. The governor may
|
0014| remove any member for cause.
|
0015| B. The commission [shall possess all] has
|
0016| the powers and [perform all the] duties prescribed by
|
0017| Chapter 61, Article 29 NMSA 1978 and [as otherwise provided]
|
0018| prescribed by [law, and] other laws. It [is expressly
|
vested with] has the power [and authority] to make and
|
0020| enforce [any] rules [and regulations] to carry out the
|
0021| provisions of [that article] Chapter 61, Article 29 NMSA
|
0022| 1978. Prior to [any] final action on any proposed changes
|
0023| or amendments to the rules [and regulations] of the
|
0024| commission, the commission [may] shall publish notice of
|
0025| the proposed action in its official publication, distribute
|
- 2 -
0001| the publication to each active licensee and give the time and
|
0002| place for a public hearing on the proposed changes. The
|
0003| hearing shall be held at least thirty days prior to any
|
0004| proposed final action. Any changes or amendments to the rules
|
0005| [and regulations] shall be filed [in accordance with the
|
procedures of] pursuant to the State Rules Act [and shall
|
become effective thirty days after notification to all active
|
licensees of the filing of the changes or amendments]. The
|
0009| commission may employ any staff it deems necessary to assist
|
0010| in carrying out its duties and in keeping its records.
|
0011| C. The "real estate commission fund" is created
|
0012| in the state treasury. Money received by the commission
|
0013| pursuant to law, except money received pursuant to the Real
|
0014| Estate Recovery Fund Act, shall be paid to the state treasurer
|
0015| to be deposited in the fund and invested. Income from
|
0016| investment of the real estate commission fund shall be
|
0017| deposited in the fund. Money in the fund is appropriated to
|
0018| the commission to be expended in carrying out its duties under
|
0019| and administering the provisions of Chapter 61, Article 29
|
0020| NMSA 1978. Balances in the fund do not revert to the general
|
0021| fund."
|
0022| Section 2. Section 61-29-4.1 NMSA 1978 (being Laws 1985,
|
0023| Chapter 89, Section 1, as amended) is amended to read:
|
0024| "61-29-4.1. ADDITIONAL POWERS OF COMMISSION--CONTINUING
|
0025| EDUCATION PROGRAMS--MINIMUM REQUIREMENTS.--[In addition to
|
- 3 -
the powers and duties granted the commission under the
|
provisions of Section 61-29-4 NMSA 1978] The commission
|
0003| shall adopt [regulations] rules providing for continuing
|
0004| educational programs that offer courses in selling, leasing or
|
0005| managing residential, commercial and industrial property as
|
0006| well as courses reviewing basic real estate law and practice.
|
0007| The [regulations] rules shall require that every licensee
|
0008| except licensees who are sixty-five years of age or older and
|
0009| who have a minimum of twenty [years'] years of
|
0010| continuously licensed experience in the selling, leasing or
|
0011| managing of real property, as a condition of his license
|
0012| renewal, shall successfully complete thirty [classroom]
|
0013| credit hours of instruction every three years in courses
|
0014| approved by the commission. The [regulations] rules shall
|
0015| prescribe areas of specialty or expertise and may require that
|
0016| a certain part of the thirty hours of classroom instruction be
|
0017| devoted to courses in the area of a licensee's specialty or
|
0018| expertise."
|
0019| Section 3. Section 61-29-8 NMSA 1978 (being Laws 1959,
|
0020| Chapter 226, Section 7, as amended) is amended to read:
|
0021| "61-29-8. LICENSE FEES--DISPOSITION.--
|
0022| A. The following fees shall be charged by the
|
0023| commission and paid into the real estate commission fund:
|
0024| (1) for each examination, a fee of sixty
|
0025| dollars ($60.00);
|
- 4 -
0001| (2) for each broker's license issued, a fee
|
0002| [of] not to exceed one hundred eighty dollars ($180) and
|
0003| for each renewal thereof, a fee [of] not to exceed one
|
0004| hundred eighty dollars ($180);
|
0005| (3) for each salesperson's license issued, a
|
0006| fee [of] not to exceed one hundred eighty dollars ($180)
|
0007| and for each renewal thereof, a fee [of] not to exceed one
|
0008| hundred eighty dollars ($180);
|
0009| (4) subject to the provisions of Paragraph
|
0010| (11) of this subsection, for each change of place of business
|
0011| or change of employer or contractual associate, a fee of
|
0012| twenty dollars ($20.00);
|
0013| (5) for each duplicate license, where the
|
0014| license is lost or destroyed and affidavit is made thereof, a
|
0015| fee of twenty dollars ($20.00);
|
0016| (6) for each license history, a fee of
|
0017| twenty-five dollars ($25.00);
|
0018| (7) for copying of documents by the
|
0019| commission, a fee [set by the commission] not to exceed one
|
0020| dollar ($1.00) per copy;
|
0021| (8) for each additional license law and rules
|
0022| [and regulations] booklet, a fee [set by the commission]
|
0023| not to exceed ten dollars ($10.00) per booklet;
|
0024| (9) for each additional directory of licensed
|
0025| real estate brokers and salespersons, a fee [set by the
|
- 5 -
commission] not to exceed twenty dollars ($20.00);
|
0002| (10) for each supplement to the directory of
|
0003| licensed real estate brokers and salespersons, a fee [set by
|
the commission] not to exceed twenty dollars ($20.00); and
|
0005| (11) when a license must be reissued for a
|
0006| salesperson because of change of address of the licensed
|
0007| broker's office, death of the licensed broker when a successor
|
0008| licensed broker is replacing the decedent and the salesperson
|
0009| remains in the office or change of name of the office or the
|
0010| entity of the licensed broker, the licensed broker or
|
0011| successor licensed broker as the case may be shall pay to the
|
0012| commission as the affected salesperson's license reissue fee
|
0013| twenty dollars ($20.00), but if there are eleven or more
|
0014| affected salespersons in the licensed broker's office, the
|
0015| total fee paid to effect reissuance of all of those licenses
|
0016| shall not exceed two hundred dollars ($200).
|
0017| B. All fees [set] charged by the commission
|
0018| shall be set by rule [or regulation and only after all
|
requirements have been met as prescribed by Chapter 61,
|
Article 29 NMSA 1978. Any changes or amendments to the rules
|
and regulations shall be filed in accordance with the
|
provisions of the State Rules Act].
|
0023| C. The commission shall deposit all money received
|
0024| by it from fees in accordance with the provisions of Chapter
|
0025| 61, Article 29 NMSA 1978 with the state treasurer, who shall
|
- 6 -
0001| keep that money in [a separate fund to be known as] the
|
0002| "real estate commission fund", and money so deposited in that
|
0003| fund is appropriated for the purpose of carrying out the
|
0004| provisions of Chapter 61, Article 29 NMSA 1978 or to maintain
|
0005| the real estate recovery fund as required by the Real Estate
|
0006| Recovery Fund Act and shall be paid out of the fund upon the
|
0007| vouchers of the president and secretary of the commission;
|
0008| provided that the total fees and charges collected and paid
|
0009| into the state treasury and any money so deposited shall be
|
0010| expended only for the purposes authorized by Chapter 61,
|
0011| Article 29 NMSA 1978.
|
0012| D. The commission shall by [regulation] rule
|
0013| provide for a proportionate refund of the license issuance fee
|
0014| or the license renewal fee if the license is issued or renewed
|
0015| for a period of [two or] three years pursuant to Section
|
0016| 61-29-11 NMSA 1978 and is terminated with more than one year
|
0017| remaining."
|
0018| Section 4. Section 61-29-12 NMSA 1978 (being Laws 1959,
|
0019| Chapter 226, Section 11, as amended) is amended to read:
|
0020| "61-29-12. REFUSAL, SUSPENSION OR REVOCATION OF LICENSE
|
0021| FOR CAUSES ENUMERATED.--
|
0022| A. The commission [shall have the power to]
|
0023| may refuse [a license for cause or to] to issue, suspend
|
0024| or revoke a license [at any time where] if the licensee
|
0025| has [by false or fraudulent representations] obtained a
|
- 7 -
0001| license by false or fraudulent representations or [where
|
the licensee] in performing or attempting to perform any of
|
0003| the actions [mentioned] specified in Chapter 61, Article
|
0004| 29 NMSA 1978 [is deemed to be guilty of] has:
|
0005| [A. making] (1) made a substantial
|
0006| misrepresentation;
|
0007| [B. pursuing] (2) pursued a continued
|
0008| and flagrant course of misrepresentation; [making] made
|
0009| false promises through agents, salespersons, advertising or
|
0010| otherwise; or [using] used any trade name or insignia of
|
0011| membership in any real estate organization of which the
|
0012| licensee is not a member;
|
0013| [C. paying] (3) paid or [receiving]
|
0014| received any rebate, profit, compensation or commission to
|
0015| or from any unlicensed person except his principal or other
|
0016| party to the transaction, and then only with his principal's
|
0017| written consent;
|
0018| [D. representing] (4) represented or
|
0019| [attempting] attempted to represent a real estate broker
|
0020| other than the broker with whom he is licensed without the
|
0021| express knowledge and consent of [the] that broker;
|
0022| [E. failing] (5) failed within a
|
0023| reasonable time to account for or to remit any money coming
|
0024| into his possession that belongs to others, [commingling]
|
0025| commingled funds of others with his own or [failing]
|
- 8 -
0001| failed to keep [such] funds of others in an escrow or
|
0002| trustee account or [failing] failed to furnish legible
|
0003| copies of all listing and sales contracts to all parties
|
0004| executing them;
|
0005| [F. conviction] (6) been convicted in
|
0006| any court of competent jurisdiction of a felony or [any]
|
0007| an offense involving moral turpitude;
|
0008| [G. employing] (7) employed or
|
0009| [compensating] compensated directly or indirectly [any]
|
0010| a person for performing any of the acts regulated by Chapter
|
0011| 61, Article 29 NMSA 1978 [who is] if that person was not a
|
0012| licensed broker or licensed salesperson [provided, however,
|
that] at the time of employment or compensation; except a
|
0014| licensed broker may pay a commission to a [licensed] broker
|
0015| [of] licensed in another state [provided further that]
|
0016| but the nonresident broker [does] shall not conduct in
|
0017| this state any of the negotiations for which a fee,
|
0018| compensation or commission is paid except in cooperation with
|
0019| a licensed broker of this state;
|
0020| [H. failing] (8) if a broker, failed
|
0021| to place as soon after receipt as is practicably possible any
|
0022| deposit money or other money received by him in a real estate
|
0023| transaction in a custodial, trust or escrow account maintained
|
0024| by him in a bank or savings and loan institution or title
|
0025| company authorized to do business in this state, in which the
|
- 9 -
0001| funds shall be kept until the transaction is consummated or
|
0002| otherwise terminated, at which time a full accounting of the
|
0003| funds shall be made by the broker. Records relative to the
|
0004| deposit, maintenance and withdrawal of [such] those funds
|
0005| shall contain information as may be prescribed by the rules
|
0006| [and regulations] of the commission. Nothing in this
|
0007| subsection [shall prohibit any] prohibits a broker from
|
0008| depositing nontrust funds in an amount not to exceed the
|
0009| required minimum balance in each trust account so as to meet
|
0010| the minimum balance requirements of the bank necessary to
|
0011| maintain the account and avoid charges. This minimum balance
|
0012| deposit shall not be considered commingling and shall not be
|
0013| subject to levy, attachment or garnishment. This subsection
|
0014| [however, shall] does not prohibit a broker from
|
0015| depositing any deposit money or other money received by him in
|
0016| a real estate transaction with another cooperating broker who
|
0017| shall in turn comply with this subsection;
|
0018| [I. failing] (9) if a salesperson,
|
0019| failed to place as soon after receipt as is practicably
|
0020| possible in the custody of his registered broker any deposit
|
0021| money or other money entrusted to him by any person dealing
|
0022| with him as the representative of his registered broker;
|
0023| [J. violating any provisions] (10)
|
0024| violated a provision of Chapter 61, Article 29 NMSA 1978 or
|
0025| [any reasonable] a rule [or regulation] adopted and
|
- 10 -
0001| promulgated by the commission [in the interests of the public
|
and in conformance with the provisions of Chapter 61, Article
|
29 NMSA 1978]; or
|
0004| [K. any other conduct] (11) committed
|
0005| acts, whether of the same or different character from that
|
0006| specified in this section, that [is] were related to his
|
0007| dealings as a real estate broker or real estate salesperson
|
0008| and that [constitutes] constituted or [demonstrates]
|
0009| demonstrated bad faith, incompetency, untrustworthiness,
|
0010| impropriety, fraud, dishonesty, negligence or [any] an
|
0011| unlawful act.
|
0012| [Any] B. An unlawful act or violation of [any
|
of the provisions] a provision of Chapter 61, Article 29
|
0014| NMSA 1978 by any real estate salesperson, employee, partner or
|
0015| associate of a licensed real estate broker shall not be cause
|
0016| for the revocation of a license of any real estate broker
|
0017| unless it appears to the satisfaction of the commission that
|
0018| the real estate broker had guilty knowledge of the unlawful
|
0019| act or violation."
|
0020| Section 5. Section 61-29-20 NMSA 1978 (being Laws 1980,
|
0021| Chapter 82, Section 1) is amended to read:
|
0022| "61-29-20. SHORT TITLE.--Sections [1 through 10 of this
|
act] 61-29-20 through 61-29-29 NMSA 1978 may be cited as
|
0024| the "Real Estate Recovery Fund Act"."
|
0025| Section 6. EFFECTIVE DATE.--The effective date of the
|
- 11 -
0001| provisions of this act is July 1, 1998.
|
0002|
|