State of South Dakota

South Dakota Legislature

South Dakota Codified Laws

 
36-21A REAL ESTATE LICENSING
CHAPTER 36-21A

REAL ESTATE LICENSING

36-21A-1      Definition of terms.
36-21A-2      "Advertising" defined.
36-21A-3      "Appraisal" defined.
36-21A-4      "Appraiser" defined.
36-21A-5      "Association" defined.
36-21A-6      "Real estate broker" and "broker" defined.
36-21A-7      "Moral turpitude" defined.
36-21A-8      Repealed.
36-21A-9      "Inactive licensee" defined.
36-21A-10      "Property manager" defined.
36-21A-11      "Real estate" and "realty" defined.
36-21A-12      "Real estate salesperson" defined.
36-21A-12.1      "Residential rental agent" defined--Promulgation of rules for licensing requirements.
36-21A-13      Real estate commission created--Composition.
36-21A-14      Terms of commission members--Vacancies.
36-21A-15      Quorum of commission.
36-21A-16      Commission continued within Department of Labor and Regulation--Records and reports.
36-21A-17      Seal of commission.
36-21A-18      Employment of executive director--Bonds--Duties.
36-21A-19      Salary of executive director--Employment of other personnel--Expenditures.
36-21A-20      Office of executive director--Records and property maintained.
36-21A-21      Meetings of commission.
36-21A-22      Filing or notice to the commission--Date of filing or notice.
36-21A-23      Compensation and expenses of commission members.
36-21A-24      Real estate courses and institutes conducted by commission.
36-21A-25      Assistance provided to libraries, licensees, institutes and foundations.
36-21A-26      Publication of list of licensees--Other information included.
36-21A-27      Person acting as broker deemed to be broker within meaning of this chapter.
36-21A-28      Acting as a licensee without license as a misdemeanor.
36-21A-29      Persons and entities exempted from this chapter.
36-21A-30      Reputation, age, competence, and citizenship required for license--Prior rejection or revocation of license.
36-21A-30.1      Education requirement for broker associate license applicants.
36-21A-30.2      Post-licensing education requirement for broker associates.
36-21A-31      Experience and education required of applicant for responsible broker's license.
36-21A-32      Waiver of experience requirement on responsible broker applicant's refusal to associate--Relocation or acceptance of unfair contract not required.
36-21A-33      Denial of application.
36-21A-34      Repealed.
36-21A-34.1      Continuing education required of salesperson--Promulgation of rules specifying requirements--Exemption.
36-21A-34.2      Certain salespersons to apply for broker associate license.
36-21A-35      Application for license--Contents--Oath or affirmation.
36-21A-36      Written examination--Time and place--Contents.

36-21A-36.1      Application for license--Time limit.
36-21A-37      License required for real estate firm.
36-21A-38      Responsible broker to represent corporation, limited liability company, partnership or association and sign application--Termination of affiliation--Fee.
36-21A-39      Dissolution of corporation, partnership, limited liability company, or association--Return of license.
36-21A-40      Repealed.
36-21A-41      Qualification by examination required.
36-21A-42      Repealed.
36-21A-43      Examination reciprocity with other states.
36-21A-44      Issuance of license to successful applicant--Association with broker--Authority to conduct business.
36-21A-45      Suspension of license on disassociation from broker or firm.
36-21A-46      Repealed.
36-21A-46.1      Broker, salesperson, or broker associate permitted to form certain business entities--Conditions.
36-21A-47      Restricted broker's license--Termination and prosecution if licensee exceeds authority.
36-21A-48      Exemption from property manager's license for operators of state and federal housing units.
36-21A-49      Application fee for real estate salesperson's, broker associate's, broker's, or restricted license.
36-21A-50      Conditions for issuing of license or reinstatement after revocation or suspension.
36-21A-51      Broker's place of business--Licenses displayed--Property manager license exception.
36-21A-52      Registration of place of business--Business restricted to designated place--New license or inactive status on change of location.
36-21A-53      Branch office name.
36-21A-54      Reciprocal privileges extended to nonresident licensees--Licensees from states not granting full reciprocity.
36-21A-55      Transaction of business subjects nonresidents to personal jurisdiction--Service of process--Delivery of copy of process or pleading to executive director.
36-21A-56      Written notice of change of association--Statement of registration--Salesman placed on inactive status.
36-21A-57      Cancellation of salesperson's or broker associate's license upon unreported change of association.
36-21A-58      Renewal of license by salesperson or broker associate not associated with responsible broker--Restrictions on inactive salesperson or broker associate.
36-21A-59      Disassociated salesperson or broker associate performing acts contemplated by this chapter as misdemeanor.
36-21A-60      Additional fees.
36-21A-61      Biennial registration--Fee--Cancellation upon failure to register--Reinstatement.
36-21A-62      Biennial proof by licensees of continuing education--Persons exempt.
36-21A-63      Approved courses for continuing education--List maintained--Standards.
36-21A-64      License renewal withheld until proof of continuing education presented.
36-21A-65      Exceptions to continuing education requirements.
36-21A-66      Late renewal application--Fee.
36-21A-67      Licensees entering United States armed forces--Application for reinstatement--Timing and requirements--Waiver of continuing education.
36-21A-68      Grounds for revocation of license--Criminal prosecution--Setting minimum fees not impaired--Suspension, reprimand, and monetary penalties.
36-21A-69      Surrender of license to commission after suspension or revocation.
36-21A-69.1      Responsible broker to surrender associate licenses.
36-21A-70      Revocation or suspension of firm license following discipline of responsible broker.
36-21A-71      Acts constituting unprofessional conduct.
36-21A-72      Restrictions on licensee advertising.
36-21A-73      Repealed.
36-21A-74      Preservation of records.
36-21A-75      Closing statements to be furnished by brokers.
36-21A-76      Cobrokerage transaction--Money held in broker's trust account.
36-21A-77      Purchaser deposits in unconsummated transactions.
36-21A-78      Substantiation of information in listing agreement--Latent defects.
36-21A-79      Broker's responsibility for real estate activities of salesman and broker associates.
36-21A-80      Handling of money received by broker for principal.
36-21A-81      Disbursement pursuant to written agreement of trust funds where purchase agreement does not close.
36-21A-82      Deposit slip and ledger sheet for special trust account--Records maintained--Notice to commission as to financial institution and name of account.
36-21A-83      Documents kept by broker remitting immediately to principal.
36-21A-84      Completed transaction required for compensation of broker--Promulgation of rules for exceptions.
36-21A-85      Repealed.
36-21A-86      Procedure on revocation of license--Appeal.
36-21A-87      Violation of chapter as misdemeanor.
36-21A-88      Action for compensation of unlicensed persons prohibited.
36-21A-89      Promulgation of rules for administration and enforcement of this chapter.
36-21A-89.1      Repealed.
36-21A-90      Promulgation of rules establishing uniform standards of professional appraisal practice.
36-21A-91      Actions for injunction--Attorney fees and costs.
36-21A-92      Definition of terms for §§ 36-21A-92 to 36-21A-100.
36-21A-93      Application for subdivision certificate--Fee--Contents--Additional information.
36-21A-94      Proof by subdivider of ability to provide promised public improvements--Security.
36-21A-95      Investigation of application and inspection of out-of-state real estate--Expenses borne by applicant.
36-21A-96      Designation of executive director of commission as agent for service of process.
36-21A-97      Issuance of certificate--Annual fee--Cancellation or renewal of certificate--Investigation.
36-21A-98      Recording of instrument conveying interest in subdivision.
36-21A-99      Cease and desist orders to prevent subdivision sales provisions violations.
36-21A-100      Contracts violating subdivision sale provisions void and unenforceable-- Recovery of money paid plus interest.
36-21A-101      Establishment of real estate recovery fund--Purpose.
36-21A-102      Minimum balance in recovery fund--Separate fee payable to restore minimum balance.
36-21A-103      Notice to commission of claims against recovery fund--Intervention by commission.
36-21A-104      Application by unsatisfied judgment creditor for payment of loss from recovery fund--Maximum payment--Service on commission and judgment debtor--Hearing on application for payment--Continuances.
36-21A-105      Facts to be shown at hearing by applicant for payment from recovery fund.
36-21A-106      False statement in proceedings against recovery fund as perjury.
36-21A-107      Burden of proof as to fraud or conversion--Presumption when original action was contested by debtor.
36-21A-108      Defense by commission of action against recovery fund--Motion for dismissal--Compromise.
36-21A-109      Defense by judgment debtor in action against recovery fund.
36-21A-110      Payment from recovery fund ordered only on valid cause of action--Prior judgment only prima facie evidence.
36-21A-111      Order for payment from recovery fund.
36-21A-112      Maximum liability of fund for acts of one licensee.
36-21A-113      Deferred payment of authorized claim--Interest.
36-21A-114      Suspension of license when payment from fund authorized--Repayment to fund required for reinstatement.
36-21A-115      Subrogation of fund to rights under judgment paid--Assignment.
36-21A-116      Other disciplinary powers unimpaired--Effect of repayment to fund.
36-21A-117, 36-21A-118. Transferred.
36-21A-119      Errors and omissions insurance required of salesmen and brokers.
36-21A-120      Group insurance coverage authorized--Independent errors and omissions coverage.
36-21A-121      Commission to determine conditions of errors and omissions coverage.
36-21A-122      Notice of terms and conditions of errors and omissions--Certificate of coverage.
36-21A-123      Repealed.
36-21A-124      Employment status--Independent contractor.
36-21A-125      "Adverse material fact" defined.
36-21A-126      "Brokerage" defined.
36-21A-127      "Confidential information" defined.
36-21A-128      Informative acts that do not constitute representation.
36-21A-129      "Substantive contact" defined.
36-21A-130      Agency agreements--Requirements.
36-21A-131      Licensee--Limited relationships.
36-21A-132      Duties and obligations of licensee representing seller or landlord.
36-21A-133      Seller's or landlord's agent not to disclose certain information without express authority--Exceptions.
36-21A-134      Seller's agent has no fiduciary duty to customer.
36-21A-134.1      No duty to disclose sex offender information.
36-21A-135      Seller's agent may show other properties.
36-21A-136      Duties and obligations of licensee representing buyer or tenant.
36-21A-137      Buyer's or tenant's agent not to disclose certain information without written authority--Exceptions.
36-21A-138      Buyer's agent has no fiduciary duty to customer.
36-21A-138.1      No duty to volunteer sex offender information--Actual knowledge must be disclosed upon inquiry.
36-21A-139      Buyer's agent may show property to competing clients.
36-21A-140      Licensee as limited agent--Written consent of all parties required--Duties and obligations.
36-21A-141      Certain information not to be disclosed by limited agent without written consent.
36-21A-141.1      Appointment of licensee to act as appointed agent of client to exclusion of other licensees--Limited agent--Information--Rules.
36-21A-142      Limited agent not to disclose certain information about one client to another without written authority--Exceptions.
36-21A-143      "Subagency" defined.
36-21A-144      Transaction broker--Duties and obligations.
36-21A-145      Transaction broker not responsible for--Independent inspections--Statements by seller--Finances.
36-21A-146      Certain information not to be disclosed by transaction broker without written consent.
36-21A-147      Office policies--Relationships--Written disclosure.
36-21A-148      Client, licensee not liable for misrepresentation made by the other--Exception.
36-21A-149      Duties under common law.
36-21A-150      Duties of broker or licensee after transaction finished.
36-21A-151      Applicants for licensure and registration and licensees under disciplinary investigation to submit to criminal background check.

36-21A-1 Definition of terms.
     36-21A-1.   Definition of terms. Terms used in this chapter mean:
             (1)      "Agency," any relationship by which one person acts for or on behalf of a client subject to the client's reasonable direction and control;
             (2)      "Agency agreement," a written agreement between a broker and a client which creates a fiduciary relationship between the broker and client. The payment or promise of payment of compensation to a responsible broker does not determine whether an agency relationship has been created between any responsible broker or licensees associated with the responsible broker and a client;
             (3)      "Auction," any public sale of real estate as defined in § 36-21A-11 or business property as defined in subdivision 36-21A-6 (3) at public offering to the highest bidder;
             (4)      "Auctioneer," any person licensed under this chapter who auctions, offers, attempts or agrees to auction real estate or business opportunities;
             (5)      "Broker associate," any broker acting in association with or under the auspices of a responsible broker;
             (6)      "Client," any person, including a seller/landlord or a buyer/tenant, who has entered into an agency relationship with a real estate licensee;
             (7)      "Commission," the South Dakota Real Estate Commission;
             (8)      "Consumer," any person seeking or receiving services from a real estate broker;
             (9)      "Customer," any party to a real estate transaction who does not have an agency relationship with a licensee;
             (10)      "Designated broker," any broker licensee designated by a responsible broker to act for the company in the conduct of real estate brokerage;
             (11)      "In-company transaction," any transaction in which both the seller/landlord and the buyer/tenant receive real estate services from the same broker or from licensees associated with the same broker;
             (12)      "Licensee," any person holding a license issued pursuant to this chapter;
             (13)      "Limited agent," any licensee who has a written agency relationship with both the seller and the buyer in the same in-company transaction;
             (14)      "Person," any individual, corporation, limited liability company, partnership, limited partnership, association, joint venture or any other entity, foreign or domestic;
             (15)      "Purchaser," any person who acquires or attempts to acquire or succeeds to an interest in real property;
             (16)      "Responsible broker," any person holding a broker's license issued pursuant to this chapter who is responsible for the real estate activities conducted by those licensees acting in association with or under the auspices of the responsible broker;
             (17)      "Served actively," if referring to a real estate salesman or broker associate, having the license on an active status with the commission;
             (18)      "Single agent," any licensee who represents only one party to a transaction;
             (19)      "Transaction broker," a broker who assists one or more parties with a real estate transaction without being an agent or advocate for the interests of any party to the transaction. The term includes the licensees associated with the broker;
             (20)      "Transaction broker agreement," a written agreement in which the broker does not represent either the seller or the buyer in a fiduciary capacity. No brokerage relationship can be created or implied by word or action alone, but only by written agreement clarifying the brokerage relationship.

Source: SL 1992, ch 273, § 1; SL 1994, ch 351, § 80; SL 1998, ch 229, § 1; SL 2011, ch 180, § 1.

36-21A-2 "Advertising" defined.
     36-21A-2.   "Advertising" defined. For the purposes of this chapter, an advertisement is any attempt, by publication or broadcast, whether oral, written or otherwise, to induce a person to use the services of a licensed real estate broker, real estate salesman or real estate firm.

Source: SL 1992, ch 273, § 2; SL 1993, ch 289.

36-21A-3 "Appraisal" defined.
     36-21A-3.   "Appraisal" defined. For the purposes of this chapter, an appraisal is the work product of a real estate appraiser which estimates the value of real estate or any interest in real estate.

Source: SL 1992, ch 273, § 3.

36-21A-4 "Appraiser" defined.
     36-21A-4.   "Appraiser" defined. For the purposes of this chapter, an appraiser is any person engaged in the business of estimating real estate values or who advertises or holds himself out to the general public to provide such a service for compensation.

Source: SL 1992, ch 273, § 4.

36-21A-5 "Association" defined.
     36-21A-5.   "Association" defined. For the purposes of this chapter, an association is any body of persons united and acting together without a charter, but upon the methods and forms used by incorporated bodies for the prosecution of some common enterprise. It is an unincorporated society and not a partnership. It is a body of persons invested with some, yet not full, corporate rights and powers.

Source: SL 1992, ch 273, § 5.

36-21A-6 "Real estate broker" and "broker" defined.
     36-21A-6.   "Real estate broker" and "broker" defined. For the purposes of this chapter, a broker or a real estate broker is any person who does any of the following:
             (1)      For another and for compensation or consideration or with the intention or expectation of receiving compensation or consideration, directly or indirectly, lists, sells, exchanges, buys, rents, manages, offers or attempts to negotiate a sale, option, exchange, purchase, lease or rental of an interest in real property, or a mobile or manufactured home which has been registered under the provisions of chapters 32-3 to 32-5B, inclusive, unless licensed under chapter 32-7A to sell used mobile or manufactured homes, or advertises or holds himself out as engaged in such activities;
             (2)      For another and for compensation or consideration or with the intention or expectation of receiving compensation or consideration, directly or indirectly, negotiates or offers or attempts to negotiate a loan, secured or to be secured by a mortgage or other encumbrance on real property;
             (3)      For another and for compensation or consideration or with the intention or expectation of receiving compensation or consideration, directly or indirectly, lists, sells, exchanges, buys, rents, manages, offers or attempts to negotiate a sale, option, exchange, purchase, lease or rental of any business opportunity or business, or its goodwill, inventory or fixtures, or any interest therein;
             (4)      For another and for compensation or consideration or with the intention or expectation of receiving compensation or consideration, directly or indirectly, offers, sells or attempts to negotiate the sale of property that is subject to the registration requirements concerning subdivided land;
             (5)      Charges a fee for undertaking to promote the sale or lease of real property by means of listing in a publication primarily for such purpose;
             (6)      Engages wholly or in part in the business of selling real property to the extent that a pattern of selling real property is established, whether or not the real property is owned by the person;
             (7)      Is employed by or on behalf of any owner of lots or other parcels of real property for compensation or consideration to sell the real property or any part thereof;
             (8)      Appraises, offers, attempts or agrees to appraise real property unless licensed or certified to appraise under some other provision of South Dakota law;
             (9)      Auctions, offers, attempts or agrees to auction real estate unless licensed to auction real property under some other provision of South Dakota law; or
             (10)      Buys or offers to buy or sell or otherwise deals in options to buy real property.

Source: SL 1992, ch 273, § 6; SL 1998, ch 230, § 1.

36-21A-7 "Moral turpitude" defined.
     36-21A-7.   "Moral turpitude" defined. For the purposes of this chapter, moral turpitude is any act done contrary to honesty and good morals. It is also an act of baseness, vileness or depravity in the private and social duties which man owes to his fellowman or to society in general.

Source: SL 1992, ch 273, § 7.

36-21A-8
     36-21A-8.   Repealed by SL 1997, ch 275, § 3.

36-21A-9 "Inactive licensee" defined.
     36-21A-9.   "Inactive licensee" defined. For the purposes of this chapter, an inactive licensee is any licensee whose license has been returned to the commission by the licensees' responsible broker, a licensee who has returned his license to the commission and requested the commission to place the license on inactive status, or a new licensee who has failed to designate a responsible broker.

Source: SL 1992, ch 273, § 9.

36-21A-10 "Property manager" defined.
     36-21A-10.   "Property manager" defined. For the purposes of this chapter, a property manager is any person who for a fee, commission or other valuable consideration or with the intent or expectation of receiving a fee, commission or consideration negotiates or attempts to negotiate the rental, exchange or leasing or any real estate or of the improvements on it; lists real estate exchanges, rentals or leases; collects rents or attempts to collect rents for real estate; or advertises or holds himself out as engaged in any of the foregoing activities.
     The term also includes any person who engages in the business of charging a fee or contracting for the collection of a fee in connection with a contract under which he undertakes to prompt the renting or leasing of real estate through its listing in a publication issued primarily for this purpose or through referral of information concerning the rentals or leases.

Source: SL 1992, ch 273, § 10.

36-21A-11 "Real estate" and "realty" defined.
     36-21A-11.   "Real estate" and "realty" defined. For the purposes of this chapter, real estate or realty is any interest or estate in real property or the property's improvements or fixtures whether corporeal, incorporeal, freehold or nonfreehold, and whether the real property is situated in this state or elsewhere, and includes leaseholds, condominiums, air rights and mineral rights.

Source: SL 1992, ch 273, § 11.

36-21A-12 "Real estate salesperson" defined.
     36-21A-12.   "Real estate salesperson" defined. For the purposes of this chapter, a real estate salesperson is any person who for compensation or consideration is associated with a real estate broker, to sell or offer to sell, or to buy or offer to buy, or to negotiate the purchase, sale, lease, rental, or exchange of real property, or of the property's improvements, or any business opportunity or business, or its goodwill, inventory, or fixtures, or any interest therein, or to sell or offer to sell, or to buy or offer to buy, or to negotiate the purchase, sale, lease, rental, or exchange of a mobile or manufactured home which has been registered under the provisions of chapters 32-3 to 32-5B, inclusive. A salesperson may give opinions of value for purposes of purchase, sale, lease, rental, or exchange of real property.

Source: SL 1992, ch 273, § 12; SL 1998, ch 231, § 1.

36-21A-12.1 "Residential rental agent" defined--Promulgation of rules for licensing requirem...
     36-21A-12.1.   "Residential rental agent" defined--Promulgation of rules for licensing requirements. For the purposes of this chapter, a residential rental agent is any person who for compensation or consideration is associated with a real estate broker or property manager to negotiate or attempt to negotiate the rental or leasing of residential property, or collect rents or attempt to collect rents. The Real Estate Commission may promulgate rules pursuant to chapter 1-26 to establish requirements for licensing a residential rental agent.

Source: SL 2000, ch 197, § 1.

36-21A-13 Real estate commission created--Composition.
     36-21A-13.   Real estate commission created--Composition. There is created a South Dakota Real Estate Commission. The commission consists of five members appointed by the Governor. The members may not all be of the same political party. Three members shall be active real estate brokers; two shall be members of the public.

Source: SL 1992, ch 273, § 13.

36-21A-14 Terms of commission members--Vacancies.
     36-21A-14.   Terms of commission members--Vacancies. Each member of the commission shall be appointed for a term of three years. Any member appointed to the commission prior to July 1, 2005, shall serve the four-year term to which the member was originally appointed. Any member appointed to the commission after July 1, 2005, shall serve a three-year term. No member may serve more than three consecutive full terms. Any member appointed to fill a vacancy arising during a commissioner's term shall serve for the unexpired portion of the term. The appointment to an unexpired term is not considered a full term.

Source: SL 1992, ch 273, § 14; SL 2005, ch 199, § 55.

36-21A-15 Quorum of commission.
     36-21A-15.   Quorum of commission. A majority of the commission, in meetings duly assembled, may perform and exercise all of the duties and powers of the commission. Actions of the commission shall be taken upon a majority vote of those members present.

Source: SL 1992, ch 273, § 15.

36-21A-16 Commission continued within Department of Labor and Regulation--Records and reports.
     36-21A-16.   Commission continued within Department of Labor and Regulation--Records and reports. The commission shall be an adjunct of the Department of Labor and Regulation, and shall retain all its prescribed functions, including administrative functions. The commission shall submit such records, information and reports in the form and at such times as required by the secretary of labor and regulation. However, the commission shall report at least annually.

Source: SL 1992, ch 273, § 16; SL 2003, ch 272 (Ex. Ord. 03-1), § 55; SL 2011, ch 1 (Ex. Ord. 11-1), § 162, eff. Apr. 12, 2011.

36-21A-17 Seal of commission.
     36-21A-17.   Seal of commission. The commission shall adopt a seal with South Dakota Real Estate Commission engraved thereon, by which it shall authenticate its proceedings.

Source: SL 1992, ch 273, § 17.

36-21A-18 Employment of executive director--Bonds--Duties.
     36-21A-18.   Employment of executive director--Bonds--Duties. The commission shall employ an executive director who shall furnish bond as required by the commission and who shall keep a record of all proceedings, transactions, communications and official acts of the commission. The executive director shall be custodian of all moneys received and shall deposit all moneys in depositories designated by the commission. He shall be custodian of all records of the commission and perform such other duties as the commission may require.

Source: SL 1992, ch 273, § 18.

36-21A-19 Salary of executive director--Employment of other personnel--Expenditures.
     36-21A-19.   Salary of executive director--Employment of other personnel--Expenditures. The commission may fix the salary of the executive director in accordance with chapter 3-6A, employ other employees as may be necessary to carry out the provisions of this chapter, fix salaries and prescribe the duties of its employees and make other expenditures necessary to carry out the provisions of this chapter.

Source: SL 1992, ch 273, § 19.

36-21A-20 Office of executive director--Records and property maintained.
     36-21A-20.   Office of executive director--Records and property maintained. The location of the office of the executive director shall be at such places within the state as the commission may designate. The commission shall maintain all of its files, records, and property at the office of the executive director.

Source: SL 1992, ch 273, § 20.

36-21A-21 Meetings of commission.
     36-21A-21.   Meetings of commission. The commission shall meet annually and at other times upon call by the executive director, chairman or upon a written request of three or more members of the commission. The place of meeting of the commission shall be at the office of the executive director or other places within South Dakota as designated by the commission.

Source: SL 1992, ch 273, § 21.

36-21A-22 Filing or notice to the commission--Date of filing or notice.
     36-21A-22.   Filing or notice to the commission--Date of filing or notice. Whenever any filing or notice to the commission is provided for, the filing or notice shall be delivered in person or mailed to the commission at its principal place of business. The date of the filing or notice is the date upon which the document is received at the principal place of business of the commission.

Source: SL 1992, ch 273, § 22.

36-21A-23 Compensation and expenses of commission members.
     36-21A-23.   Compensation and expenses of commission members. The compensation and reimbursement of expenses provided by law for members of the commission shall be paid from the funds of the commission.

Source: SL 1992, ch 273, § 23.

36-21A-24 Real estate courses and institutes conducted by commission.
     36-21A-24.   Real estate courses and institutes conducted by commission. The commission may conduct, hold or assist in conducting or holding real estate courses or institutes, and incur and pay the necessary expenses in connection therewith, which courses or institutes shall be open to the licensees. The commission may charge a reasonable fee for such courses and institutes.

Source: SL 1992, ch 273, § 24.

36-21A-25 Assistance provided to libraries, licensees, institutes and foundations.
     36-21A-25.   Assistance provided to libraries, licensees, institutes and foundations. The commission may assist libraries, licensees, institutes and foundations, with financial aid or otherwise, in providing texts, sponsoring studies, surveys and programs for the benefit of the real estate business and the elevation of the real estate business.

Source: SL 1992, ch 273, § 25.

36-21A-26 Publication of list of licensees--Other information included.
     36-21A-26.   Publication of list of licensees--Other information included. The executive director of the commission shall, at least annually, publish a list of the names and addresses of all persons licensed by the commission under the provisions of this chapter, together with such other information relative to the enforcement of the provisions of this chapter as the commission determines to be of interest to the public. The commission may charge a reasonable fee to persons who request the list.

Source: SL 1992, ch 273, § 26.

36-21A-27 Person acting as broker deemed to be broker within meaning of this chapter.
     36-21A-27.   Person acting as broker deemed to be broker within meaning of this chapter. A person, unless exempted under this chapter, who, directly or indirectly, for another, with the intention or upon the promise of receiving compensation or consideration, offers, attempts or agrees to perform or performs any single act that may be performed by a broker as described in § 36-21A-6, whether as a part of a transaction or as an entire transaction, is deemed a broker or salesman within the meaning of this chapter. No person licensed under this chapter comes within the exceptions set forth in this chapter including any transaction in which he has a personal interest.

Source: SL 1992, ch 273, § 27.

36-21A-28 Acting as a licensee without license as a misdemeanor.
     36-21A-28.   Acting as a licensee without license as a misdemeanor. No person may act as a licensee under this chapter, assume to act as a licensee or advertise as a licensee without a license issued by the commission. No person may collect compensation as a licensee under this chapter without having first complied with the provisions of this chapter. A violation of this section is a Class 1 misdemeanor.

Source: SL 1992, ch 273, § 28.

36-21A-29 Persons and entities exempted from this chapter.
     36-21A-29.   Persons and entities exempted from this chapter. This chapter does not apply to the following:
             (1)      Any person who as a bona fide owner or lessor, performs any of the acts described in §§ 36-21A-6 and 36-21A-12 with reference to property owned, or leased by the person, or to any regular employees thereof, if such acts are performed in the regular course of, or as an incident to the management of such property or investment in such property;
             (2)      Any public officer while performing the officer's duties;
             (3)      Any person owning and operating a cemetery and selling lots solely for use as burial plots;
             (4)      Any person acting as a receiver, trustee, personal representative, guardian or under court order, or while acting under authority of a deed, trust, or will;
             (5)      Any custodian, janitor, or employee of the owner or manager of a residential building who exhibits a residential unit therein to prospective tenants, accepts applications for leases and furnishes prospective tenants with information relative to the rental of the unit, terms and conditions of leases required by the owner or manager and similar information;
             (6)      Any owner, manager, or employee of a business holding a lodging license while engaging in the lodging business;
             (7)      Any attorney at law, admitted to practice in South Dakota, unless the attorney holds himself or herself out to be in the real estate business or solicits real estate business, in which event the attorney may obtain a real estate license without examination, but the attorney is otherwise subject to the provisions of this chapter;
             (8)      Any bank, bank holding company or subsidiary thereof, trust company, savings and loan association, public utility or any land mortgage or farm loan association organized under the laws of this state or the United States, if engaged in the transaction of business within the scope of its corporate powers as provided by law;
             (9)      Any person holding, in good faith, a duly executed power of attorney from the owner, authorizing the final consummation and execution for the sale, purchase, leasing, or exchange of real property if such acts are not of a recurrent nature and done with the intention of evading this chapter; and
             (10)      Any employee of any person enumerated in this section whose principal duties are other than those duties described in §§ 36-21A-6 and 36-21A-12, if engaged in the specific performance of the employee's duties.

Source: SL 1992, ch 273, § 29; SL 1998, ch 232, § 1.

36-21A-30 Reputation, age, competence, and citizenship required for license--Prior rejection or revo...
     36-21A-30.   Reputation, age, competence, and citizenship required for license--Prior rejection or revocation of license. A license shall be granted only to persons of reputable character who have attained the age of eighteen years; who are competent to transact the business of a licensee in a manner as to safeguard the interest of the public; and whose application for a license has not been rejected, except for the reason that the applicant failed any examination required by this chapter, in this or any other state within one year prior to the date of application; or whose license has not been revoked in this or any other state within five years prior to date of application. No one except a citizen of the United States of America, or resident of South Dakota, is eligible to secure a license as a broker, except as otherwise provided by this chapter.

Source: SL 1992, ch 273, § 30.

36-21A-30.1 Education requirement for broker associate license applicants.
     36-21A-30.1.   Education requirement for broker associate license applicants. An applicant for a broker associate license must have completed one hundred sixteen class hours of education in a course of study approved by the commission given by instructors approved by the commission or in an independent study or distance education course approved by the commission. The commission may adopt rules, pursuant to chapter 1-26, to specify requirements for the course, qualifications of an instructor, and criteria for an independent study or distance education course.

Source: SL 1996, ch 235, § 1; SL 2002, ch 180, § 3; SL 2009, ch 186, § 1.

36-21A-30.2 Post-licensing education requirement for broker associates.
     36-21A-30.2.   Post-licensing education requirement for broker associates. Any broker associate receiving initial licensure as a broker associate after June 30, 2009, shall complete sixty class hours of education in a course of study approved by the commission given by instructors approved by the commission or in an independent study or distance education course approved by the commission. The broker associate shall complete the sixty class hours in prescribed subject matter by the second renewal deadline with thirty class hours completed during the initial licensing period and thirty class hours completed during the second licensing period. The thirty class hours completed during the initial licensing period and second licensing period apply towards the continuing education requirements for license renewal. The commission shall adopt rules, pursuant to chapter 1-26, to specify requirements for the course, qualifications of an instructor, and criteria for an independent study or distance education course.

Source: SL 2009, ch 187, § 1.

36-21A-31 Experience and education required of applicant for responsible broker's license.
     36-21A-31.   Experience and education required of applicant for responsible broker's license. An applicant for a responsible broker's license shall have served actively for two years as a licensed salesperson or broker associate, or a combination thereof, and shall furnish evidence of completion of fifteen additional class hours beyond the broker associate level in a course approved by the commission given by instructors approved by the commission or in an independent study or distance education course approved by the commission. If the applicant for a responsible broker's license meets all requirements except the fifteen-additional-class-hours requirement, the commission or executive director may approve the applicant for a responsible broker's license if the applicant certifies in writing to furnish the commission with evidence of completion of the fifteen-additional-class-hours requirement within six months of the date of the approval. The commission may adopt rules, pursuant to chapter 1-26, to specify requirements for the course of study. Any person licensed as a broker associate under § 36-21A-34.1 shall, in addition to the education requirements of this section, complete the broker examination requirements to qualify as a responsible broker. Any broker licensed prior to July 1, 1996, is exempt from these requirements.

Source: SL 1992, ch 273, § 31; SL 1996, ch 235, § 2; SL 2002, ch 180, § 4; SL 2009, ch 181, § 1.

36-21A-32 Waiver of experience requirement on responsible broker applicant's refusal to associate--R...
     36-21A-32.   Waiver of experience requirement on responsible broker applicant's refusal to associate--Relocation or acceptance of unfair contract not required. If otherwise qualified, the requirement of two years serving as a salesperson or broker associate may be waived if the applicant for a responsible broker's license certifies that the applicant has been refused association as a salesperson or broker associate by at least three licensed responsible brokers within sixty days before the application. The responsible brokers named in the application as having refused to associate shall be contacted by the commission to determine whether the attempt by the salesperson or broker associate to associate was in good faith. If the commission determines that there were not three good faith applications to associate by the salesperson or broker associate with a responsible broker or that the applicant has refused association with a responsible broker, the two-year period may not be waived. No applicant may be forced to relocate in order to associate with a responsible broker. If the applicant's reason for refusing to associate are the terms of the contract with the responsible broker, the applicant's refusal to associate with the responsible broker does not count as a refusal if the commission decides the contract is unfair to the salesperson or broker associate.

Source: SL 1992, ch 273, § 32; SL 1996, ch 235, § 3.

36-21A-33 Denial of application.
     36-21A-33.   Denial of application. An application may be denied for any one of the following reasons:
             (1)      The applicant has written insufficient funds checks within the calendar year before application or has written an insufficient funds check for the application;
             (2)      The applicant has been convicted of a felony or of a misdemeanor involving moral turpitude. If the applicant is a firm, a license may be denied if any partner, associate, director, stockholder, officer or responsible broker has been convicted of a felony or of a misdemeanor involving moral turpitude;
             (3)      The applicant has been disciplined by a regulatory agency in relation to activities as a real estate salesperson or broker, broker associate, firm, appraiser, mortgage broker, auctioneer or any other regulated licensee, including insurance, securities, law and commodities trading;
             (4)      The applicant has failed to satisfy the requirements as provided by this chapter;
             (5)      The applicant has failed the prelicense school examination;
             (6)      The applicant has not met education requirements;
             (7)      The applicant made deliberate misstatements, deliberate omissions, misrepresentations or untruths in the application; or
             (8)      The applicant has a current and unpaid judgment filed against the applicant.

Source: SL 1992, ch 273, § 33; SL 1993, ch 290; SL 2011, ch 180, § 2.

36-21A-34
     36-21A-34.   Repealed by SL 2002, ch 180, § 5.

36-21A-34.1 Continuing education required of salesperson--Promulgation of rules specifying requirement...
     36-21A-34.1.   Continuing education required of salesperson--Promulgation of rules specifying requirements--Exemption. Any person licensed as a real estate salesperson pursuant to this chapter shall, within two years of January 1, 2003, complete forty hours of prescribed education in a course approved by the commission. Any real estate salesperson whose license is inactive shall complete the prescribed education and course examination requirements before activating that license. The commission shall promulgate rules, pursuant to chapter 1-26, to specify requirements for the course and examination. This section does not apply to residents of another licensing jurisdiction who are licensed in South Dakota under the provisions of a reciprocal agreement with that jurisdiction.

Source: SL 2002, ch 180, § 1.

36-21A-34.2 Certain salespersons to apply for broker associate license.
     36-21A-34.2.   Certain salespersons to apply for broker associate license. Any salesperson who has completed the requirements of § 36-21A-34.1 shall file an application for a broker associate license before the end of the current license term.

Source: SL 2002, ch 180, § 2.

36-21A-35 Application for license--Contents--Oath or affirmation.
     36-21A-35.   Application for license--Contents--Oath or affirmation. An application for a license shall be in writing upon forms furnished by the commission and shall contain such data and information as the commission may require and shall be verified on oath or affirmation under penalty of perjury.

Source: SL 1992, ch 273, § 35.

36-21A-36 Written examination--Time and place--Contents.
     36-21A-36.   Written examination--Time and place--Contents. An applicant for a license shall submit to a written examination to be conducted by the commission at such times and places as it may direct. The commission shall determine the contents of the examination.

Source: SL 1992, ch 273, § 36.

36-21A-36.1 Application for license--Time limit.
     36-21A-36.1.   Application for license--Time limit. Upon notification in writing that the person has passed the examination, the person shall file the appropriate application for license with all the required documents to the Real Estate Commission within sixty days of the notice date. If the person fails to file an application and proof of required education within the sixty-day period, the person's registration and all rights deriving from a passing score are canceled.

Source: SL 1998, ch 233, § 3.

36-21A-37 License required for real estate firm.
     36-21A-37.   License required for real estate firm. No partnership, association, limited liability company, or corporation may perform the services of a real estate broker as described in § 36-21A-6, nor may a licensee associate or work for any partnership, association, limited liability company, or corporation performing any services described in § 36-21A-6, until such time as the partnership, association, limited liability company, or corporation is licensed by the commission.

Source: SL 1992, ch 273, § 37; SL 1996, ch 236, § 2.

36-21A-38 Responsible broker to represent corporation, limited liability company, partnership or ass...
     36-21A-38.   Responsible broker to represent corporation, limited liability company, partnership or association and sign application--Termination of affiliation--Fee. No license may be granted to a corporation, limited liability company, partnership or association, unless the corporation, limited liability company, partnership, or association designates a responsible broker who will represent the corporation, limited liability company, partnership, or association. A nonlicensed individual may have an ownership interest in any corporation, limited liability company, partnership, or association through which a responsible broker engages in professional real estate activity. However, no nonlicensed individual may control or supervise the professional real estate activity of any real estate licensee associated with the firm. No nonlicensed individual may have any ownership interest in a sole proprietorship that engages in professional real estate activity. The responsible broker shall sign the application for the license. Upon the termination of a responsible broker's affiliation with the firm, the firm shall name a new responsible broker and notify the commission in writing. The application fee for a firm license shall be set out by rule, promulgated by the commission pursuant to chapter 1-26, and may not exceed one hundred dollars.

Source: SL 1992, ch 273, § 38; SL 1994, ch 351, § 80A; SL 2008, ch 191, § 44; SL 2011, ch 180, § 3.

36-21A-39 Dissolution of corporation, partnership, limited liability company, or association--Return...
     36-21A-39.   Dissolution of corporation, partnership, limited liability company, or association--Return of license. Upon dissolution of a corporation, partnership, limited liability company, or association, the responsible broker shall immediately return the firm license to the commission.

Source: SL 1992, ch 273, § 39; SL 1996, ch 236, § 3; SL 2011, ch 180, § 4.

36-21A-40
     36-21A-40.   Repealed by SL 2011, ch 180, § 5.

36-21A-41 Qualification by examination required.
     36-21A-41.   Qualification by examination required. No person may be licensed until qualified by examination, except as otherwise provided by this chapter.

Source: SL 1992, ch 273, § 41; SL 1998, ch 233, § 1.

36-21A-42
     36-21A-42.   Repealed by SL 2001, ch 208, § 1.

36-21A-43 Examination reciprocity with other states.
     36-21A-43.   Examination reciprocity with other states. An applicant currently licensed in another state who has successfully passed the real estate licensing examination given in another state need only take the state portion of the examination in South Dakota.

Source: SL 1992, ch 273, § 43; SL 1998, ch 233, § 4.

36-21A-44 Issuance of license to successful applicant--Association with broker--Authority to conduct...
     36-21A-44.   Issuance of license to successful applicant--Association with broker--Authority to conduct business. Upon passing the examination and completion of the other requirements, a license shall be issued to the successful applicant. Upon receiving the license and associating with a broker, he may conduct the business authorized by the license.

Source: SL 1992, ch 273, § 44.

36-21A-45 Suspension of license on disassociation from broker or firm.
     36-21A-45.   Suspension of license on disassociation from broker or firm. A real estate salesperson's or broker associate's license is inactive if the real estate salesperson or broker associate ceases to be associated with a real estate broker or a licensed firm.

Source: SL 1992, ch 273, § 45; SL 1998, ch 234, § 1.

36-21A-46
     36-21A-46.   Repealed by SL 2011, ch 180, § 6.

36-21A-46.1 Broker, salesperson, or broker associate permitted to form certain business entities--Cond...
     36-21A-46.1.   Broker, salesperson, or broker associate permitted to form certain business entities--Conditions. A broker may, or a real estate salesperson or broker associate employed by or otherwise associated with a broker may, form a business corporation or limited liability company under the following conditions:
             (1)      The business corporation or limited liability company does not engage in real estate transactions as a third-party agent or in any other capacity requiring a license under this chapter;
             (2)      The business corporation or limited liability company does not advertise or otherwise hold itself out as a real estate brokerage company;
             (3)      The employing or associating broker is not relieved of any obligation to supervise the employed or associated licensee or any other requirement of this chapter or the rules adopted pursuant to this chapter;
             (4)      The employed or associated licensee is not relieved of any personal liability for any licensed activities by interposing the corporate or limited liability form;
             (5)      The business corporation or limited liability company is owned solely by a broker, an individual real estate salesperson, or broker associate, or by that licensee and that licensee's spouse, or by that licensee and other licensees within the same firm as that licensee; and
             (6)      The business corporation or limited liability company is approved by and registered with the commission. The registration fee for an approved business corporation or limited liability company shall be established by rule promulgated pursuant to chapter 1-26. The fee may not exceed one hundred dollars.

Source: SL 2001, ch 205, § 1; SL 2006, ch 199, § 1; SL 2009, ch 188, § 1.

36-21A-47 Restricted broker's license--Termination and prosecution if licensee exceeds authority.
     36-21A-47.   Restricted broker's license--Termination and prosecution if licensee exceeds authority. The commission may promulgate rules pursuant to chapter 1-26 to provide for the issuance of a restricted broker's license to auctioneers, property managers, mortgage brokers or such other categories as the commission determines. The licensee may perform only those duties specified by the license. If the licensee exceeds the authority granted, his license may be terminated and criminal proceedings brought against him.

Source: SL 1992, ch 273, § 47.

36-21A-48 Exemption from property manager's license for operators of state and federal housing units...
     36-21A-48.   Exemption from property manager's license for operators of state and federal housing units. A person who has contracted with the South Dakota Housing Development Authority or the United States to operate housing units or has contracted with the United States in a subsidy program on behalf of the tenants is exempt from obtaining a property manager's license to manage those properties.

Source: SL 1992, ch 273, § 48.

36-21A-49 Application fee for real estate salesperson's, broker associate's, broker's, or restricted...
     36-21A-49.   Application fee for real estate salesperson's, broker associate's, broker's, or restricted license. The commission shall set, by rule promulgated pursuant to chapter 1-26, an application fee not to exceed four hundred dollars. This fee shall accompany an application for a real estate salesperson's, broker associate's, or broker's license including restricted licenses.

Source: SL 1992, ch 273, § 49; SL 1998, ch 233, § 5; SL 2002, ch 181, § 1.

36-21A-50 Conditions for issuing of license or reinstatement after revocation or suspension.
     36-21A-50.   Conditions for issuing of license or reinstatement after revocation or suspension. The commission may require a person whose license was revoked or suspended to meet and perform certain conditions before issuing or reinstating a license to that person. Such conditions may include the following:
             (1)      Restitution of moneys;
             (2)      Restitution of property;
             (3)      Periodic reports to the commission;
             (4)      Fines, costs, and monetary penalties.

Source: SL 1992, ch 273, § 50.

36-21A-51 Broker's place of business--Licenses displayed--Property manager license exception.
     36-21A-51.   Broker's place of business--Licenses displayed--Property manager license exception. Every person licensed as a real estate broker shall have and maintain a fixed place of business within this state for the transaction of the real estate business. The license of broker and the license of each licensee associated with the broker shall be prominently displayed in the office. This section does not apply to the holder of a property manager license if provisions are made with the commission for auditing the licensee's records.

Source: SL 1992, ch 273, § 51.

36-21A-52 Registration of place of business--Business restricted to designated place--New license or...
     36-21A-52.   Registration of place of business--Business restricted to designated place--New license or inactive status on change of location. The licensee shall register his place of business with the commission, and no licensee may transact business at any other address. In case of removal from the registered address, the licensee shall apply, on forms furnished by the commission, to the commission, before the removal or within ten days after removal. The licensee shall designate the new location of the office or request inactive status, whereupon the commission shall immediately register the new location for the unexpired period, if the new location is satisfactory, or place the licensee on inactive status.

Source: SL 1992, ch 273, § 52.

36-21A-53 Branch office name.
     36-21A-53.   Branch office name. A branch office shall operate under the same name as the parent office.

Source: SL 1992, ch 273, § 53.

36-21A-54 Reciprocal privileges extended to nonresident licensees--Licensees from states not grantin...
     36-21A-54.   Reciprocal privileges extended to nonresident licensees--Licensees from states not granting full reciprocity. No nonresident licensee regularly engaged in the real estate business as a vocation, who maintains a definite place of business and is licensed by a state which offers the same privileges to licensees of this state, may be required to maintain a place of business within this state. The commission shall recognize the license issued by another state as qualification for a license in South Dakota. A licensee from a state that does not grant full reciprocity to licensees from South Dakota shall, in order to be licensed in South Dakota, meet the same requirements that the licensees' state requires of South Dakota licensees. The commission may adopt rules pursuant to chapter 1-26 to implement this section.

Source: SL 1992, ch 273, § 54; SL 2002, ch 181, § 2.

36-21A-55 Transaction of business subjects nonresidents to personal jurisdiction--Service of process...
     36-21A-55.   Transaction of business subjects nonresidents to personal jurisdiction--Service of process--Delivery of copy of process or pleading to executive director. The holding of a license issued under the provisions of this chapter or participating in a transaction for which a license is required by this chapter is the transaction of business within the state, and a nonresident licensee or unlicensed person so defined is subject to the personal jurisdiction of the courts of this state as provided by § 15-7-2.
     Service of process shall be made upon corporate licensees as provided by §§ 47-1A-504 and 47-1A-1510 and otherwise as provided by chapter 15-6.
     Any person licensed under this chapter shall deliver a copy of any process or pleading to which that licensee is a party to the executive director of the commission within ten days of its being served by or upon him. Failure to file with the executive director is not jurisdictional in any action to which a licensee under this chapter may be a party.

Source: SL 1992, ch 273, § 55; SL 2005, ch 202, § 1.

36-21A-56 Written notice of change of association--Statement of registration--Salesman placed on ina...
     36-21A-56.   Written notice of change of association--Statement of registration--Salesman placed on inactive status. A licensee shall give written notice to the commission of a change of association and of the name of the licensed broker or firm with whom he is about to associate. The broker or firm with whom the licensee was associated and the broker and firm with whom the licensee is about to be associated shall also give written notice to the commission. The commission shall issue a statement of registration to the licensee. The commission shall place a salesman on inactive status until he is registered as being associated with another broker or firm.

Source: SL 1992, ch 273, § 56.

36-21A-57 Cancellation of salesperson's or broker associate's license upon unreported change of asso...
     36-21A-57.   Cancellation of salesperson's or broker associate's license upon unreported change of association. The change of association by an active real estate salesperson or broker associate without notice to the commission may cause cancellation of the license by the commission.

Source: SL 1992, ch 273, § 57; SL 1998, ch 234, § 3.

36-21A-58 Renewal of license by salesperson or broker associate not associated with responsible brok...
     36-21A-58.   Renewal of license by salesperson or broker associate not associated with responsible broker--Restrictions on inactive salesperson or broker associate. A salesperson or broker associate who is not associated with a responsible broker may renew the license by submitting the renewal fee, together with the completed renewal application on which the licensee has noted inactive status. An inactive salesperson or broker associate whose license has been renewed may not engage in the real estate business until the licensee secures a new responsible broker.

Source: SL 1992, ch 273, § 58; SL 1998, ch 234, § 4; SL 2011, ch 180, § 7.

36-21A-59 Disassociated salesperson or broker associate performing acts contemplated by this chapter...
     36-21A-59.   Disassociated salesperson or broker associate performing acts contemplated by this chapter as misdemeanor. No real estate salesperson or broker associate may perform any of the acts contemplated by this chapter, either directly or indirectly after the licensee's association has been terminated and before becoming associated with another broker and has been notified of the registration by the commission. A violation of this section is a Class 1 misdemeanor.

Source: SL 1992, ch 273, § 59; SL 1998, ch 234, § 5.

36-21A-60 Additional fees.
     36-21A-60.   Additional fees. Fees include the following:
             (1)      Certificate of licensee, a fee not to exceed fifteen dollars;
             (2)      For each additional office or place of business, a biennial fee not to exceed thirty dollars;
             (3)      For each change of office or place of business, a fee not to exceed fifteen dollars;
             (4)      For each statement of registration of change of association, a fee not to exceed fifteen dollars; and
             (5)      For each duplicate license, if the original license is lost or destroyed and affidavit made thereof, a fee not to exceed fifteen dollars.
     Fees shall be set by the commission by rules promulgated pursuant to chapter 1-26.

Source: SL 1992, ch 273, § 60; SL 2008, ch 191, § 45.

36-21A-61 Biennial registration--Fee--Cancellation upon failure to register--Reinstatement.
     36-21A-61.   Biennial registration--Fee--Cancellation upon failure to register--Reinstatement. A person or firm licensed either actively or inactively under this chapter shall register every two years with the commission and pay a fee set by rule promulgated by the commission pursuant to chapter 1-26 not to exceed two hundred dollars. The application for renewal of a license shall be made to the commission by November thirtieth of the year the current license expires. Failure of a person to register results in cancellation of the license on December thirty-first. The license may be reinstated by filing a new application and requalifying as provided by this chapter.

Source: SL 1992, ch 273, § 61; SL 1994, ch 306, § 1; SL 2002, ch 181, § 3; SL 2008, ch 191, § 46.

36-21A-62 Biennial proof by licensees of continuing education--Persons exempt.
     36-21A-62.   Biennial proof by licensees of continuing education--Persons exempt. A person licensed under this chapter shall provide to the Real Estate Commission proof of participation in not less than twenty-four hours of approved continuing education in the preceding two-year period. This section does not apply to attorneys licensed in South Dakota, persons licensed to sell time-share estates as defined by chapter 43-15B, or mortgage brokers.

Source: SL 1992, ch 273, § 62.

36-21A-63 Approved courses for continuing education--List maintained--Standards.
     36-21A-63.   Approved courses for continuing education--List maintained--Standards. The commission may accept attendance at approved lectures, seminars or courses as continuing education. The commission shall maintain a current list of approved sessions or courses of instruction. The commission shall, by rule promulgate pursuant to chapter 1-26, set standards and fees for the approval of seminars or courses as continuing education.

Source: SL 1992, ch 273, § 63.

36-21A-64 License renewal withheld until proof of continuing education presented.
     36-21A-64.   License renewal withheld until proof of continuing education presented. The commission shall withhold the license renewal of a person who does not provide proof of continuing education with the registration application until proof of such continuing education has been presented.

Source: SL 1992, ch 273, § 64.

36-21A-65 Exceptions to continuing education requirements.
     36-21A-65.   Exceptions to continuing education requirements. The commission may make exception from continuing education requirements for licensees not engaged in public practice, or for reasons of health, military service or other good cause. However, if such licensee returns to public practice, he shall meet such continuing education requirements as the commission may determine.

Source: SL 1992, ch 273, § 65.

36-21A-66 Late renewal application--Fee.
     36-21A-66.   Late renewal application--Fee. A licensee who fails to file an application and fee for biennial registration may suspend the cancellation of the license by filing a late registration application and a fee in an amount not to exceed twenty dollars for each month or fraction of a month that has passed since November thirtieth. The fee shall be set by the commission by rule promulgated pursuant to chapter 1-26. However, no late application may be accepted by the commission after June thirtieth.

Source: SL 1992, ch 273, § 66; SL 1994, ch 306, § 2; SL 2008, ch 191, § 47.

36-21A-67 Licensees entering United States armed forces--Application for reinstatement--Timing and r...
     36-21A-67.   Licensees entering United States armed forces--Application for reinstatement--Timing and requirements--Waiver of continuing education. Any person licensed under this chapter, entering the United States armed forces and whose registration under § 36-21A-61 lapses during his service, may be reinstated to his license, without examination, upon his separation from the armed forces other than by dishonorable discharge. The application for reinstatement shall be made within six months of the separation and shall be accompanied by a copy of a discharge or papers of separation. Continuing education hours that accrue during the time that a licensee was in the armed forces may be waived. The commission may adopt rules pursuant to chapter 1-26 to provide for certification of eligibility, waiver of continuing education and administration.

Source: SL 1992, ch 273, § 67.

36-21A-68 Grounds for revocation of license--Criminal prosecution--Setting minimum fees not impaired...
     36-21A-68.   Grounds for revocation of license--Criminal prosecution--Setting minimum fees not impaired--Suspension, reprimand, and monetary penalties. A license issued under this chapter may be revoked by the commission upon proof of unprofessional conduct on the part of the licensee. For the purposes of this chapter, the term unprofessional conduct does not impair the right of a licensee to set minimum fees chargeable for his services. Unprofessional conduct is not the basis for criminal prosecution unless otherwise declared unlawful. The commission may also impose a suspension, reprimand, or a monetary penalty not to exceed two thousand five hundred dollars, or a combination of revocation, suspension, reprimand or monetary penalty. Any moneys collected from the monetary penalty shall be deposited into the fund of the commission.

Source: SL 1992, ch 273, § 68.

36-21A-69 Surrender of license to commission after suspension or revocation.
     36-21A-69.   Surrender of license to commission after suspension or revocation. When surrendering his license or when an order of suspension or revocation of his license becomes final, a licensee shall forward the license and identification card at once to the commission.

Source: SL 1992, ch 273, § 69.

36-21A-69.1 Responsible broker to surrender associate licenses.
     36-21A-69.1.   Responsible broker to surrender associate licenses. If the commission suspends or revokes the license of a responsible broker, the responsible broker shall return the licenses of any associate licensee to the commission at the time the order suspending or revoking the broker's license becomes final.

Source: SL 2002, ch 182, § 1.

36-21A-70 Revocation or suspension of firm license following discipline of responsible broker.
     36-21A-70.   Revocation or suspension of firm license following discipline of responsible broker. If the commission suspends, revokes, or takes any other action against a responsible broker, the action may apply to the responsible broker's firm and the firm license may be revoked, suspended, or otherwise disciplined. Each licensee shall terminate the licensee's relationship with the disciplined firm if the firm's license has been revoked or suspended.

Source: SL 1992, ch 273, § 70; SL 2011, ch 180, § 8.

36-21A-71 Acts constituting unprofessional conduct.
     36-21A-71.   Acts constituting unprofessional conduct. Unprofessional conduct includes the following:
             (1)      Violating any provisions of this chapter or any rule promulgated by the commission;
             (2)      Making a material false statement in the licensee's application for a license or in any information furnished to the commission;
             (3)      Making any substantial and willful misrepresentation with reference to a transaction which is injurious to any party;
             (4)      Making any false promise or advertisement of a character such as to influence, persuade or induce a party to a transaction to the party's injury or damage;
             (5)      Failure to account for or to remit, within a reasonable time, any moneys coming into the licensee's possession belonging to others, commingling funds of others with the licensee's own, failing to keep the funds of others in an escrow or trust account with a bank or other recognized depository in this state, or failing to keep records relative to the deposit, which shall contain any information as may be prescribed by this chapter or the rules promulgated by the commission pursuant to chapter 1-26 relative thereto;
             (6)      Being convicted, or pleading guilty or nolo contendere before a court of competent jurisdiction in this or any other state, or before any federal court, of a misdemeanor involving moral turpitude or a felony arising under the laws of this state or under the laws of the United States or any other state that would be a misdemeanor involving moral turpitude or a felony under the laws of this state;
             (7)      Claiming or taking any secret or undisclosed amount of compensation or the failure of a licensee to reveal to the licensee's principal or employer the full amount of compensation in connection with any acts for which a license is required under this chapter;
             (8)      Failing or refusing upon demand to produce any document, book, or record in the licensee's possession or under the licensee's control, concerning a transaction under investigation by the commission;
             (9)      Offering real property for sale or lease without the knowledge and prior written consent of the owner or the owner's authorized agent or on any terms other than those authorized by the owner or the owner's authorized agent;
             (10)      Any violation of federal or state fair housing requirements;
             (11)      Failing or refusing upon demand to furnish copies including reproductions of any document pertaining to any transaction dealing with real estate to a person whose signature is affixed thereto;
             (12)      Paying compensation or commission in connection with a transaction to any person who is not licensed under this chapter;
             (13)      Failing to disclose to an owner in writing the licensee's intention or true position if the licensee directly or indirectly through a third party purchases for himself or herself or acquires or intends to acquire any interest in or any option to purchase property which has been listed with the licensee's office for sale or lease;
             (14)      Failure by a broker to deliver to the seller in every real estate transaction, at the time the transaction is consummated, a complete, detailed closing statement, showing all of the receipts and disbursements for the seller; also failure to deliver to the buyer a complete statement showing all money received in the transaction from the buyer and how and for what the same was disbursed, and to retain true copies of the statements in the broker's files; also failure to date and sign the closing statement;
             (15)      Any other conduct which constitutes dishonesty or fraudulent conduct, whether arising within or without the pursuit of the licensee's license privilege;
             (16)      Accepting employment or compensation for appraising real estate contingent upon reporting a predetermined value or issuing an appraisal report on real estate in which the licensee has an undisclosed interest;
             (17)      The revocation or suspension of any other license held by a person licensed under this chapter. Any other license includes being licensed as an attorney; real estate salesman, broker or appraiser; insurance licensee; securities licensee; and other similar regulated occupation, trade or profession;
             (18)      Using, proposing the use, agreeing to the use or knowingly permitting the use of two or more contracts of sale, earnest money agreements or loan applications, one of which is not made known to the prospective lender or the loan guarantor, to enable the purchaser to obtain a larger loan than the true sales price would allow or to enable the purchaser to qualify for a loan which the purchaser otherwise could not obtain;
             (19)      Failing to promptly give a copy of an offer to purchase to the purchaser;
             (20)      Failing to promptly give the seller every written offer to purchase obtained;
             (21)      Upon obtaining an acceptance of the offer signed by the seller, failing to promptly give a copy of it to both purchaser and seller;
             (22)      Failing to make certain that all of the terms and conditions of the transaction are included in the offer to purchase;
             (23)      Giving a title opinion upon the merchantability of the title to property in any transaction in which the licensee participated;
             (24)      Preparing any legal document, giving any legal advice, or otherwise engaging in the practice of law. Preparation of the following documents is exempt from this provision:
             (a)      Listing agreements or extensions;
             (b)      Offers to purchase;
             (c)      Offers to lease;
             (d)      Acceptances; and
             (e)      Closing statements;
             (25)      Permitting the use of a broker's license to enable licensed salesmen to establish and carry on a real estate brokerage business if the broker has only insignificant control of the affairs of the business conducted;
             (26)      Taking a net listing whereby a licensee agrees to take as compensation the proceeds of a sale over and above the selling price agreed in the listing contract;
             (27)      Failing to put in writing all guarantees of sale and other guarantees made by a licensee to the person listing the property for sale;
             (28)      Failing to put in writing any agreement to furnish or sell a warranty;
             (29)      Attempting to solicit or attempting to secure listings without first advising the owner that the licensee is a licensee and is engaged in real estate brokerage;
             (30)      Failing to protect and promote the interests of the client whom the licensee has undertaken to represent to the best of the licensee's ability;
             (31)      Failing to deal fairly with all parties to a transaction;
             (32)      Committing any act constituting or demonstrating bad faith, incompetency or fraudulent dealings;
             (33)      Using the licensee's position to gain undue influence over a prospective buyer, seller, landlord, or tenant, using the licensee's position to coerce a buyer, seller, landlord, or tenant, or using duress on a buyer, seller, landlord, or tenant;
             (34)      Issuing an insufficient funds check;
             (35)      In a business enterprise that requires licensing by the commission, associating in any manner with another person who has had a license suspended or revoked by action of the commission while the suspension or revocation is in effect. This prohibition includes a corporation, a partnership, an association, a single proprietorship, and an employer-employee relationship. A licensee may act as an agent in a real estate transaction for a person who has had a license suspended or revoked by the commission if the transaction is one that would occur in the ordinary course of the licensee's business;
             (36)      Buying, selling, leasing, or exchanging real property under the auspices of a partnership or corporation of which the licensee owns an interest if it is indicated that the purchase or sale is being made by a private party not licensed by the real estate commission;
             (37)      Making a listing contract or any other contract with the licensee's principal which allows the licensee to purchase or lease the listed property and charge a commission thereon without obtaining the written consent of the principal to such provision. This written consent shall be in addition to the signing of any listing contract;
             (38)      Accepting a note or other nonnegotiable instrument or anything of value not readily negotiable as earnest money on a contract or offer to purchase without the written permission of the licensee's principal;
             (39)      Selling, buying, exchanging or leasing real property in a manner indicating that the licensee is not licensed under this chapter; or
             (40)      Improperly influencing or attempting to influence the development, reporting, result, or review of a real estate appraisal by coercion, extortion, or bribery; withholding or threatened withholding of payment of an appraisal fee; conditioning the payment of an appraisal fee upon the opinion, conclusion, or valuation to be reached; requesting the appraiser report a predetermined opinion, conclusion, or valuation or the desired valuation of any person; or any other act or practice that impairs or attempts to impair an appraiser's independence, objectivity, and impartiality. This subdivision does not apply to the following acts:
             (a)      Requesting an appraiser to consider additional, appropriate property information;
             (b)      Providing further detail, substantiation, or explanation of the appraiser's value conclusion;
             (c)      Correcting errors in the appraisal report;
             (d)      Withholding payment of an appraisal fee based upon a bona fide dispute regarding the appraiser's compliance with the appraisal standards adopted by the Department of Labor and Regulation;
             (e)      Retaining a real estate appraiser from panels or lists on a rotating basis; or
             (f)      Supplying the appraiser with information the appraiser is required to analyze under the appraisal standards adopted by the Department of Labor and Regulation such as agreements of sale, options, or listings of the property to be valued.

Source: SL 1992, ch 273, § 71; SL 1998, ch 235, § 1; SL 2006, ch 200, § 1; SL 2009, ch 189, § 1; SL 2011, ch 1 (Ex. Ord. 11-1), § 162, eff. Apr. 12, 2011.

36-21A-72 Restrictions on licensee advertising.
     36-21A-72.   Restrictions on licensee advertising. A licensee who advertises shall comply with the following:
             (1)      Each advertisement shall clearly state the name of the firm with which an individual licensee is associated;
             (2)      Each advertisement in which a licensee attempts to secure real estate listings or offers to purchase, sell or lease property, or perform any other act for which a license is required under this chapter, shall clearly disclose that the advertised acts or services are being offered by a licensee;
             (3)      No licensee may make any announcement in any media regarding the sale of property which gives any impression that the property sold for a price other than the actual selling price.
     Notwithstanding subdivisions (1) to (3), inclusive, of this section, a licensee may advertise in the licensee's individual name an offer to sell or lease property of which the licensee is the owner. The advertisement shall disclose that the owner of the property being sold or leased is a licensee.

Source: SL 1992, ch 273, § 72; SL 1996, ch 236, § 4; SL 1998, ch 236, § 1.

36-21A-73
     36-21A-73.   Repealed by SL 1998, ch 229, § 28.

36-21A-74 Preservation of records.
     36-21A-74.   Preservation of records. A licensee shall preserve for four years all listings, offers to purchase, closing statements and other records relating to any real estate transaction.

Source: SL 1992, ch 273, § 74.

36-21A-75 Closing statements to be furnished by brokers.
     36-21A-75.   Closing statements to be furnished by brokers. The listing broker shall furnish a closing statement to the seller. The selling broker shall furnish a closing statement to the buyer.

Source: SL 1992, ch 273, § 75; SL 1998, ch 237, § 1.

36-21A-76 Cobrokerage transaction--Money held in broker's trust account.
     36-21A-76.   Cobrokerage transaction--Money held in broker's trust account. Any earnest money paid in a cooperative or cobrokerage transaction shall be held in a broker's trust account unless otherwise agreed to by the buyer and seller.

Source: SL 1992, ch 273, § 76; SL 2012, ch 195, § 1.

36-21A-77 Purchaser deposits in unconsummated transactions.
     36-21A-77.   Purchaser deposits in unconsummated transactions. If for any reason the seller fails, refuses, neglects or is unable to consummate the transaction as provided in the purchase contract, and through no fault or neglect of the purchaser, the real estate transaction cannot be completed, the broker has no right to any portion of the deposit money which was deposited by the purchaser, even though the commission is earned. This deposit shall be returned to the purchaser at once.

Source: SL 1992, ch 273, § 77.

36-21A-78 Substantiation of information in listing agreement--Latent defects.
     36-21A-78.   Substantiation of information in listing agreement--Latent defects. On taking a listing, a licensee shall substantiate that the information taken in the listing agreement is accurate. As far as latent defects are concerned, it is not a violation of this section if the licensee disclosed to the buyer that the listing information or parts of the listing information are solely the representations of the seller.

Source: SL 1992, ch 273, § 78.

36-21A-79 Broker's responsibility for real estate activities of salesman and broker associates.
     36-21A-79.   Broker's responsibility for real estate activities of salesman and broker associates. A real estate broker is responsible for the real estate activities conducted by his salesmen and broker associates, whether as employees or independent contractors.

Source: SL 1992, ch 273, § 79.

36-21A-80 Handling of money received by broker for principal.
     36-21A-80.   Handling of money received by broker for principal. A real estate broker shall remit immediately to the broker's principal all money received by the broker belonging to the principal unless, by the terms of a written employment contract, the broker is authorized to retain possession of the money until the final settlement and consummation of the transaction. In that event the broker shall deposit the money in a federally insured financial institution in a special trust account on the first legal banking day after the acceptance of the contract. The account shall be reconciled at least monthly. The money may not be used by the real estate broker except in connection with the transaction as authorized by the principal.

Source: SL 1992, ch 273, § 80; SL 1996, ch 236, § 6.

36-21A-81 Disbursement pursuant to written agreement of trust funds where purchase agreement does no...
     36-21A-81.   Disbursement pursuant to written agreement of trust funds where purchase agreement does not close. If an accepted offer and agreement to purchase does not close, a broker may not disburse any funds held in trust, relative to such real estate transaction, except pursuant to a written instruction of all parties to the transaction or pursuant to a court order.

Source: SL 1992, ch 273, § 81; SL 1996, ch 236, § 7.

36-21A-82 Deposit slip and ledger sheet for special trust account--Records maintained--Notice to com...
     36-21A-82.   Deposit slip and ledger sheet for special trust account--Records maintained--Notice to commission as to financial institution and name of account. The broker shall at the time of making the deposit make a deposit slip clearly stating the name of the principal for whom it is deposited. In addition, the broker shall maintain in his office an individual ledger sheet for his principal showing the amount deposited in trust and any expenditures therefrom. The ledger sheet, deposit slip and any other record shall be made available for inspection by the commission upon request. The deposit slip and ledger sheet shall be kept as a part of the records of the broker at least four years from the closing of the transaction. A broker shall notify the commission of the name of the financial institution in which the trust account is maintained and also the name of the account on forms provided by the commission.

Source: SL 1992, ch 273, § 82.

36-21A-83 Documents kept by broker remitting immediately to principal.
     36-21A-83.   Documents kept by broker remitting immediately to principal. A real estate broker who remits immediately to his principal all money received by him belonging to the principal without using a trust account shall maintain for at least four years the records that completely disclose all financial dealings between the principal and the broker.

Source: SL 1992, ch 273, § 83.

36-21A-84 Completed transaction required for compensation of broker--Promulgation of rules for excep...
     36-21A-84.   Completed transaction required for compensation of broker--Promulgation of rules for exceptions. No licensee is entitled to any part of the money paid to him in any transaction as part of his compensation until the transaction has been consummated or terminated. The commission may promulgate rules, pursuant to chapter 1-26, to make reasonable exceptions to this section.

Source: SL 1992, ch 273, § 84.

36-21A-85
     36-21A-85.   Repealed by SL 1998, ch 229, § 29.

36-21A-86 Procedure on revocation of license--Appeal.
     36-21A-86.   Procedure on revocation of license--Appeal. No license may be revoked except in compliance with chapter 1-26. An appeal from the decision of the commission may be taken as provided by chapter 1-26.

Source: SL 1992, ch 273, § 86.

36-21A-87 Violation of chapter as misdemeanor.
     36-21A-87.   Violation of chapter as misdemeanor. Unless punishable under Title 22, a person violating any of the provisions of this chapter is guilty of a Class 1 misdemeanor.

Source: SL 1992, ch 273, § 87.

36-21A-88 Action for compensation of unlicensed persons prohibited.
     36-21A-88.   Action for compensation of unlicensed persons prohibited. No action or suit may be instituted, nor recovery be had, in any court of this state by a person for compensation for an act done or service rendered, the doing or rendering of which is prohibited under the provisions of this chapter, to other than persons licensed under this chapter, unless such person was licensed under this chapter at the time of offering to perform the act or service or procuring a promise to contract for the payment of compensation for the contemplated act or service.

Source: SL 1992, ch 273, § 88; SL 1996, ch 236, § 8.

36-21A-89 Promulgation of rules for administration and enforcement of this chapter.
     36-21A-89.   Promulgation of rules for administration and enforcement of this chapter. The commission may promulgate rules pursuant to chapter 1-26 relating to the administration and enforcement of the provisions of this chapter in the following areas:
             (1)      Procedures for conducting the commission's business;
             (2)      Procedures and qualifications for application, minimum requirements for examination, procedures for the examination and the administration of the examination, the required score for passing the examination, and procedures for replacement of a license;
             (3)      Requirements for dividing a commission with a broker in another state, requirements for application for licensure by reciprocity and the practice of a nonresident licensee in the state;
             (4)      Procedures for application to provide classroom instruction or correspondence work for prelicensing education, qualifications of the instructors and facilities, and procedures for approving classroom instruction and correspondence work and for withdrawing the approval;
             (5)      Procedures for disciplinary proceedings, including requirements for filing a complaint, dismissal of a complaint, informal and formal resolution of a complaint, formal complaint and answer requirements, final action and review, disqualification of a commission member from a hearing and authorization for per diem and mileage;
             (6)      Procedures for declaratory rulings, petitions for rules and contested cases;
             (7)      Requirements for a real estate auction and the requirements, duties and responsibilities of an auctioneer;
             (8)      Requirements for mortgage brokers, including areas such as trust accounts, record-keeping, written contracts, full disclosure and restrictions on chargeable costs and expenses;
             (9)      Requirements for continuing education including procedures for granting a certificate of accreditation; notification of a material change in an approved course offering; suspension, revocation and denial of course approval; notice to students regarding the course and opportunity for comment; auditing; certificates of attendance; preregistration and limits on correspondence courses; and
             (10)      Requirements for property managers, including areas such as trust accounts, auditing, contracts, disclosure, disciplinary matters, financial obligations and records, and property management accounting.

Source: SL 1992, ch 273, § 89; SL 1993, ch 292; SL 2012, ch 252, § 1.

36-21A-89.1
     36-21A-89.1.   Repealed by SL 2005, ch 230, § 3.

36-21A-90 Promulgation of rules establishing uniform standards of professional appraisal practice.
     36-21A-90.   Promulgation of rules establishing uniform standards of professional appraisal practice. The commission may promulgate rules pursuant to chapter 1-26 establishing uniform standards of professional appraisal practice.

Source: SL 1992, ch 273, § 90.

36-21A-91 Actions for injunction--Attorney fees and costs.
     36-21A-91.   Actions for injunction--Attorney fees and costs. The commission may commence actions for injunction for unprofessional conduct or, as an alternate to criminal proceedings, for violation of this chapter, chapters 43-15A and 43-15B or rules promulgated pursuant thereto. The commencement of one proceeding by the commission constitutes an election. The commission may also commence actions for injunctions against any person or entity that engages in the practice of real estate pursuant to this chapter without a license issued by the commission. In any action where an injunction is granted, the court shall award the commission attorney fees and costs of the investigation and proceedings.

Source: SL 1992, ch 273, § 91; SL 2011, ch 181, § 1.

36-21A-92 Definition of terms for §§ 36-21A-92 to 36-21A-100.
     36-21A-92.   Definition of terms for §§ 36-21A-92 to 36-21A-100. Terms used in §§ 36-21A-92 to 36-21A-100, inclusive, mean:
             (1)      "Commission," the South Dakota Real Estate Commission;
             (2)      "Person," an individual, corporation, limited liability company, partnership, limited partnership, association, joint venture or any other entity, foreign or domestic;
             (3)      "Subdivider," a person who causes land to be subdivided into a subdivision for that person or others, or who undertakes to develop a subdivision. However, this does not include a public agency or officer authorized by law to create subdivisions;
             (4)      "Subdivision," or "subdivided land," any real estate offered for sale and which has been registered under the Interstate Land Sales Full Disclosure Act, 82 Stat. 590 and following, 15 U.S.C. 1701 and following, as such Act existed on January 1, 1980, or real estate located out of this state which is divided or proposed to be divided into fifty or more lots, parcels or units.

Source: SL 1992, ch 273, § 92; SL 1994, ch 351, § 81.

36-21A-93 Application for subdivision certificate--Fee--Contents--Additional information.
     36-21A-93.   Application for subdivision certificate--Fee--Contents--Additional information. Before subdivided land is offered for sale the subdivider shall apply in writing for a subdivision certificate to the commission on a form furnished by the commission and approved by the attorney general. The application shall be accompanied by a filing fee of one hundred dollars plus twenty-five dollars for each one hundred lots or fraction thereof to be offered for sale. The application shall contain the following information and supporting documents:
             (1)      The name, address and business status of the applicant;
             (2)      If the applicant is a partnership, the names and addresses of the partners;
             (3)      If the applicant is a corporation, the place of incorporation and the names and addresses of its officers and members of its board of directors;
             (4)      The legal description and area of the real estate to be offered for sale, including maps and recorded plats showing the area involved;
             (5)      The name and address of the legal owner of the real estate to be offered for sale;
             (6)      A certified, audited financial statement fully disclosing the current financial condition of the developer;
             (7)      A statement of the condition of the title of the subdivided lands, including encumbrances as of a specified date within thirty days of the application;
             (8)      Copies of the instruments by which the interest in the subdivided lands was acquired and a statement of any lien or encumbrances, if any, with dates as to recording, along with the documentary evidence that any mortgagee or trustee of a deed of trust has subordinated his interest in the real estate to the interest of a purchaser of the real estate;
             (9)      A true statement of the terms and conditions on which it is intended to dispose of the real estate, together with copies of any contracts intended to be used. The contracts shall contain a provision entitling the purchaser, if he has not seen the land, to an unconditional right to rescind the contract and the unconditional right of refund of all payments made under the contract after inspecting the land if inspection is made within a time provided in the contract which may not be less than four months from the date of the contract and if the demand for refund or rescission of the contract is made within twenty days of the inspection. Any payment made by the purchaser shall be held in trust in a bank located in this state for four months or twenty days after inspection, whichever occurs first, and no portion of the payment may be expended for any purpose before the expiration of the trust period. The rescission period may be waived by the purchaser;
             (10)      A statement of the zoning and other governmental regulations affecting the use of the land to be sold or offered for sale disclosing whether or not such regulations have been satisfied;
             (11)      A copy of an offering statement which sets forth the material facts with respect to the land to be offered or sold.
     After receiving the application, the commission may require such additional information concerning the real estate as it considers necessary.

Source: SL 1992, ch 273, § 93.

36-21A-94 Proof by subdivider of ability to provide promised public improvements--Security.
     36-21A-94.   Proof by subdivider of ability to provide promised public improvements--Security. No application may be approved by the commission unless the subdivider offers satisfactory proof of his ability to provide promised public improvements including water, sewer, gas and streets. Satisfactory proof shall be in the form of performance bonds or other security.

Source: SL 1992, ch 273, § 94.

36-21A-95 Investigation of application and inspection of out-of-state real estate--Expenses borne by...
     36-21A-95.   Investigation of application and inspection of out-of-state real estate--Expenses borne by applicant. The commission shall thoroughly investigate all matters relating to the application and may require a personal inspection of the real estate by a person or persons designated by it. All expenses incurred by the commission in investigating the real estate and its proposed sale in this state shall be borne by the applicant and the commission shall require a deposit sufficient to cover such expenses before the investigation.

Source: SL 1992, ch 273, § 95.

36-21A-96 Designation of executive director of commission as agent for service of process.
     36-21A-96.   Designation of executive director of commission as agent for service of process. Before the approval of an application, the applicant shall file with the commission a designation in writing that appoints the executive director of the commission to act as the applicant's agent, upon whom all judicial and other process or legal notices directed to the applicant may be served. Service upon the designated agent is personal service upon the applicant. Copies of the appointment, certified by the executive director of the commission, are sufficient evidence thereof and shall be admitted into evidence with the same force and effect as the original. In the written designation, the applicant shall agree that any lawful process against the applicant, which is served upon the agent, shall be of the same legal force and validity as if served upon the applicant and that the authority shall continue in force so long as any liability remains outstanding in this state.

Source: SL 1992, ch 273, § 96.

36-21A-97 Issuance of certificate--Annual fee--Cancellation or renewal of certificate--Investigation...
     36-21A-97.   Issuance of certificate--Annual fee--Cancellation or renewal of certificate--Investigation. If the application is approved, the commission shall issue a certificate of registration to the applicant. After issuance of a certificate, an annual fee of fifty dollars plus ten dollars for each one hundred lots or fraction thereof computed on the number of lots in the original application shall be due and payable on or before January first of each year. Failure to remit annual fees when due shall automatically cancel the certificate. The certificate may remain valid if the commission determines from satisfactory investigation that the certificate should be renewed. Before issuing the renewal certificate each year, the certificate holder shall furnish to the commission information as may be requested by the commission. If an investigation is required, the cost of making the investigation shall be paid by the certificate holder in advance.

Source: SL 1992, ch 273, § 97.

36-21A-98 Recording of instrument conveying interest in subdivision.
     36-21A-98.   Recording of instrument conveying interest in subdivision. An instrument conveying an interest in the subdivided real estate shall be in recordable form and the subdivider or buyer may record such instrument in the county where the real estate is located and in the office where deeds are recorded.

Source: SL 1992, ch 273, § 98.

36-21A-99 Cease and desist orders to prevent subdivision sales provisions violations.
     36-21A-99.   Cease and desist orders to prevent subdivision sales provisions violations. The executive director, with the consent of the commission, may issue a cease and desist order upon determination that the provisions of §§ 36-21A-93 to 36-21A-98, inclusive, have been or are about to be violated.

Source: SL 1992, ch 273, § 99.

36-21A-100 Contracts violating subdivision sale provisions void and unenforceable--Recovery of money ...
     36-21A-100.   Contracts violating subdivision sale provisions void and unenforceable--Recovery of money paid plus interest. Failure to comply with the provisions of §§ 36-21A-93 to 36-21A-98, inclusive, make any contract entered into in this state void and unenforceable. Money paid under that contract to the certificate holder, together with interest at the Category A rate of interest as established in § 54-3-16 from date of the payment, may be recovered in a civil action.

Source: SL 1992, ch 273, § 100.

36-21A-101 Establishment of real estate recovery fund--Purpose.
     36-21A-101.   Establishment of real estate recovery fund--Purpose. The commission shall establish and maintain a real estate recovery fund, which shall be used to provide a source for payment of unsatisfied judgments obtained by persons aggrieved by the acts of a person licensed under this chapter. The commission shall maintain one hundred thousand dollars in the fund to be used strictly for the purpose of recovery of unsatisfied judgments against licensees. The moneys deposited in the fund shall be invested by the commission by establishing an account with the state investment council pursuant to chapter 4-5, and all interest and profits derived from such investment, if the fund exceeds one hundred thousand dollars, shall be transferred to the commission's general fund. The interest and profits shall be retained in the fund until its total reaches one hundred thousand dollars.

Source: SL 1992, ch 273, § 101.

36-21A-102 Minimum balance in recovery fund--Separate fee payable to restore minimum balance.
     36-21A-102.   Minimum balance in recovery fund--Separate fee payable to restore minimum balance. If at the end of any calendar year the amount remaining in the real estate recovery fund is less than one hundred thousand dollars, every person registering pursuant to this chapter shall pay, in addition to the biennial registration fee, a separate fee in an amount declared sufficient by the commission to restore the balance in the fund to at least one hundred thousand dollars.

Source: SL 1992, ch 273, § 102.

36-21A-103 Notice to commission of claims against recovery fund--Intervention by commission.
     36-21A-103.   Notice to commission of claims against recovery fund--Intervention by commission. A person commencing an action that may result in the filing of a claim against the real estate recovery fund shall serve a copy of the summons and complaint upon the commission within ten days of service upon the defendant. The commission may intervene in the action pursuant to § 15-6-24(a).

Source: SL 1992, ch 273, § 103.

36-21A-104 Application by unsatisfied judgment creditor for payment of loss from recovery fund--Maxim...
     36-21A-104.   Application by unsatisfied judgment creditor for payment of loss from recovery fund--Maximum payment--Service on commission and judgment debtor--Hearing on application for payment--Continuances. If any person obtains a final judgment in any court of competent jurisdiction against a person licensed under this chapter, on grounds of fraudulent, deceptive or dishonest practices, or conversion of trust funds arising directly out of any transaction when the judgment debtor was licensed and performed acts for which a license is required under this chapter, and which cause of action accrued on or after July 1, 1977, the aggrieved person may, upon the judgment becoming final, and upon termination of all proceedings, including reviews, appeals and execution and levy, file a verified application in the circuit court, sixth circuit, Hughes county, for an order directing payment out of the real estate recovery fund of the amount of actual and direct loss in the transaction up to the sum of fifteen thousand dollars of the amount remaining unpaid upon the judgment. Nothing in this chapter may obligate the fund for more than fifteen thousand dollars for each person. A copy of the verified application shall be served upon the commission and upon the judgment debtor, and a certificate or affidavit of such service filed with the court. The court shall conduct a hearing upon the application thirty days after service of the application upon the commission. Upon petition of the commission, the court shall continue the hearing up to an additional sixty days, and upon a showing of good cause may continue the hearing for such further period as the court considers appropriate.

Source: SL 1992, ch 273, § 104.

36-21A-105 Facts to be shown at hearing by applicant for payment from recovery fund.
     36-21A-105.   Facts to be shown at hearing by applicant for payment from recovery fund. At the hearing the applicant shall show the following:
             (1)      He is not a spouse of the judgment debtor, or the personal representative of such spouse;
             (2)      If he is licensed under this chapter, he was not acting as a principal or agent in a real estate transaction;
             (3)      He has complied with all the requirements of §§ 36-21A-101 to 36-21A-115, inclusive;
             (4)      He has obtained a judgment stating the amount thereof and the amount owing thereon at the date of the application;
             (5)      He has made all reasonable searches and inquiries to ascertain whether the judgment debtor possesses real or personal property or other assets, liable to be sold or applied in satisfaction of the judgment;
             (6)      If he has discovered property or other assets owned by the judgment debtor and liable to be applied in satisfaction of the debt he shall further show that he has taken all necessary action and proceedings for the realization thereof, and that the amount thereby realized was insufficient to satisfy the judgment, stating the amount so realized and the balance remaining due on the judgment after application of the amount realized;
             (7)      Any amount recovered from the judgment debtor or debtors and any amount recovered in out-of-court settlements as to particular defendants, if any, have been applied to the actual and compensatory damages awarded by the court;
             (8)      He has diligently pursued his remedies against all the judgment debtors and all other persons liable to him in the transaction for which he seeks recovery from the real estate recovery fund; and
             (9)      He is making the application within one year after the judgment becomes final, or within one year after the termination of any review or appeal of the judgment.

Source: SL 1992, ch 273, § 105.

36-21A-106 False statement in proceedings against recovery fund as perjury.
     36-21A-106.   False statement in proceedings against recovery fund as perjury. Any person who knowingly files with the commission any notice, statement or other document required under §§ 36-21A-101 to 36-21A-115, inclusive, which is false or untrue or contains any material misstatement of fact is guilty of perjury.

Source: SL 1992, ch 273, § 106.

36-21A-107 Burden of proof as to fraud or conversion--Presumption when original action was contested ...
     36-21A-107.   Burden of proof as to fraud or conversion--Presumption when original action was contested by debtor. If an applicant's judgment is by default, stipulation or consent, or if the action against the licensee was defended by a trustee in bankruptcy, the applicant has the burden of proving his cause of action for fraudulent, deceptive or dishonest practices or conversion of trust funds. Otherwise, the judgment creates a rebuttable presumption of the alleged fraudulent, deceptive or dishonest practices or alleged conversion of trust funds.

Source: SL 1992, ch 273, § 107.

36-21A-108 Defense by commission of action against recovery fund--Motion for dismissal--Compromise.
     36-21A-108.   Defense by commission of action against recovery fund--Motion for dismissal--Compromise. The commission may defend any action on behalf of the fund and shall have recourse to all appropriate means of defense and review including examination of witnesses. The commission may move the court at any time to dismiss the application if it appears there are no triable issues and the petition is without merit. The motion may be supported by affidavit of any person having knowledge of the facts and may be made on the basis that the petition, and the judgment referred to therein, does not form the basis for a meritorious recovery claim within the purview of §§ 36-21A-101 to 36-21A-115, inclusive. The commission shall give written notice to the applicant and judgment debtor ten days before the date set for hearing such motion. The commission may, subject to court approval, compromise a claim based upon the application of an aggrieved party. It is not bound by any prior compromise or stipulation of the judgment debtor.

Source: SL 1992, ch 273, § 108.

36-21A-109 Defense by judgment debtor in action against recovery fund.
     36-21A-109.   Defense by judgment debtor in action against recovery fund. The judgment debtor may defend any such action on his own behalf and shall have recourse to all appropriate means of defense and review including examination of witnesses.

Source: SL 1992, ch 273, § 109.

36-21A-110 Payment from recovery fund ordered only on valid cause of action--Prior judgment only prim...
     36-21A-110.   Payment from recovery fund ordered only on valid cause of action--Prior judgment only prima facie evidence. If the court proceeds upon an application, it shall order payment out of the real estate recovery fund only upon a determination that the applicant has a valid cause of action, and has complied with the provisions of §§ 36-21A-101 to 36-21A-115, inclusive. The judgment shall be only prima facie evidence of such cause of action and is not conclusive.

Source: SL 1992, ch 273, § 110.

36-21A-111 Order for payment from recovery fund.
     36-21A-111.   Order for payment from recovery fund. If the court finds after the hearing that the claim should be levied against the portion of the fund allocated for the purpose of recovery of unsatisfied judgments, the court shall enter an order directed to the commission requiring payment from the fund in the amount payable upon the claim.

Source: SL 1992, ch 273, § 111.

36-21A-112 Maximum liability of fund for acts of one licensee.
     36-21A-112.   Maximum liability of fund for acts of one licensee. The liability of the fund for the acts of a licensee, when acting as such and occurring before the date of the court order entered pursuant to §§ 36-21A-101 to 36-21A-115, inclusive, is terminated whenever such order authorizes payments from the fund for judgments or unsatisfied portions thereof, in an aggregate amount of fifteen thousand dollars on behalf of such licensee.

Source: SL 1992, ch 273, § 112.

36-21A-113 Deferred payment of authorized claim--Interest.
     36-21A-113.   Deferred payment of authorized claim--Interest. If, at any time, the money deposited in the fund is insufficient to satisfy any duly authorized claim or portion thereof, the commission shall, when sufficient money has been deposited in the real estate recovery fund, satisfy those unpaid claims or portions thereof, in the order that the claims or portions thereof were originally filed, plus accumulated interest at the Category A rate of interest as established in § 54-3-16.

Source: SL 1992, ch 273, § 113.

36-21A-114 Suspension of license when payment from fund authorized--Repayment to fund required for re...
     36-21A-114.   Suspension of license when payment from fund authorized--Repayment to fund required for reinstatement. If the commission pays from the fund any amount in settlement of a claim or toward satisfaction of a judgment against a licensee, the license shall automatically be suspended upon the effective date of an order by the court authorizing payment from the fund. No licensee may be reinstated or issued a license until he has repaid in full the amount paid from the fund on his account plus interest thereon at the Category A rate of interest as established in § 54-3-16. A discharge in bankruptcy does not relieve a person from the penalties and disabilities provided in this section.

Source: SL 1992, ch 273, § 114.

36-21A-115 Subrogation of fund to rights under judgment paid--Assignment.
     36-21A-115.   Subrogation of fund to rights under judgment paid--Assignment. If, upon the order of the court, the commission has paid from the fund any sum to the judgment creditor, the commission shall be subrogated to all of the rights of the judgment creditor to the extent of the amount so paid. The judgment creditor shall assign all his right, title and interest in the judgment to the extent of the amount so paid to the commission and any amount and interest so recovered by the commission on the judgment shall be deposited to the fund.

Source: SL 1992, ch 273, § 115.

36-21A-116 Other disciplinary powers unimpaired--Effect of repayment to fund.
     36-21A-116.   Other disciplinary powers unimpaired--Effect of repayment to fund. Nothing contained in §§ 36-21A-101 to 36-21A-115, inclusive, limits the authority of the commission to take disciplinary action against any licensee under other provisions of this chapter. The repayment in full of all obligations to the fund by a licensee does not nullify or modify the effect of any other disciplinary proceeding brought pursuant to the provisions of §§ 36-21A-101 to 36-21A-115, inclusive.

Source: SL 1992, ch 273, § 116.

36-21A-117
     36-21A-117, 36-21A-118.   Transferred to §§ 36-21B-3, 36-21B-7.

36-21A-119 Errors and omissions insurance required of salesmen and brokers.
     36-21A-119.   Errors and omissions insurance required of salesmen and brokers. The real estate commission shall adopt rules, pursuant to chapter 1-26, requiring as a condition of licensure that all real estate salesman and brokers, except those who hold inactive licenses, carry errors and omissions insurance covering all activities contemplated under this chapter.

Source: SL 1993, ch 288, § 1.

36-21A-120 Group insurance coverage authorized--Independent errors and omissions coverage.
     36-21A-120.   Group insurance coverage authorized--Independent errors and omissions coverage. The Real Estate Commission may negotiate by bid with an insurance provider for a group policy under which coverage is available to all licensees with no right on the part of the insurer to cancel any licensee. Any licensee may obtain errors and omissions insurance independently if the coverage complies with the minimum requirements established by the commission.

Source: SL 1993, ch 288, § 2.

36-21A-121 Commission to determine conditions of errors and omissions coverage.
     36-21A-121.   Commission to determine conditions of errors and omissions coverage. The Real Estate Commission shall determine the terms and conditions of coverage required by § 36-21A-119, including the minimum limits of coverage, the permissible deductible and the permissible exceptions.

Source: SL 1993, ch 288, § 3.

36-21A-122 Notice of terms and conditions of errors and omissions--Certificate of coverage.
     36-21A-122.   Notice of terms and conditions of errors and omissions--Certificate of coverage. Each licensee shall be notified of the required terms and conditions of coverage at least thirty days before the biennial license renewal date. A certificate of coverage, showing compliance with the required terms and conditions of coverage, shall be filed annually with the real estate commission by each licensee who elects not to participate in the group insurance program administered by the Real Estate Commission.

Source: SL 1993, ch 288, § 4.

36-21A-123
     36-21A-123.   Repealed by SL 2001, ch 209, § 1.

36-21A-124 Employment status--Independent contractor.
     36-21A-124.   Employment status--Independent contractor. For purposes of determining employment status, any broker, broker associate, and salesperson who is a natural person and licensed under this chapter is engaged in an independently established profession. Any such licensee is an independent contractor if:
             (1)      The licensed broker with whom the licensee is affiliated does not specify by other than general policy the time, method, and location of the licensee's services; and
             (2)      The licensed broker with whom the licensee is affiliated compensates the licensee on the basis of work performed without withholding and remitting federal income and social security taxes; and
             (3)      The licensed broker with whom the licensee is affiliated provides only incidental supplies, equipment, and facilities, while the licensee assumes responsibility for vehicular, educational, and other significant professionally related expenses; and
             (4)      Either party to the relationship may terminate it at will and without liability.

Source: SL 1995, ch 222.

36-21A-125 "Adverse material fact" defined.
     36-21A-125.   "Adverse material fact" defined. For the purposes of this chapter, an adverse material fact is information that negatively affects the value of the property or a party's ability to perform its obligations in a real estate transaction. Adverse material facts include:
             (1)      Any environmental hazards affecting the property which are required by law to be disclosed;
             (2)      Any material defects in the property;
             (3)      Any material defects in the title to the property which are anticipated to survive the closing; and
             (4)      Any material limitation on the client's ability to perform under the terms of the contract.

Source: SL 1998, ch 229, § 2.

36-21A-126 "Brokerage" defined.
     36-21A-126.   "Brokerage" defined. For the purposes of this chapter, a brokerage is the business or occupation of a real estate broker. The term includes licensees associated with the broker who have been assigned management duties.

Source: SL 1998, ch 229, § 3.

36-21A-127 "Confidential information" defined.
     36-21A-127.   "Confidential information" defined. For the purposes of this chapter, confidential information is any information given to the licensee in confidence, or any information obtained by the licensee that the licensee knows a reasonable individual would want to keep confidential, unless disclosure of the information is authorized in writing by the client or disclosure of this information is required by law or the information becomes public knowledge. The term, confidential information, does not include material facts about the physical condition of the property.

Source: SL 1998, ch 229, § 4.

36-21A-128 Informative acts that do not constitute representation.
     36-21A-128.   Informative acts that do not constitute representation. For the purposes of this chapter, initial acts that a licensee may perform for a consumer that are informative in nature and do not rise to the level of representation on behalf of a consumer include the following:
             (1)      Responding to phone inquiries by consumers as to the availability and pricing of real estate services;
             (2)      Responding to phone inquiries from a consumer concerning the price or location of real property;
             (3)      Attending an open house and responding to questions about the property from a consumer;
             (4)      Setting an appointment to view property;
             (5)      Responding to questions of consumers walking into a licensee's office concerning real estate services offered on particular properties;
             (6)      Describing a property or the property's condition in response to a consumer's inquiry;
             (7)      Accompanying an appraiser, inspector, contractor, or similar third party on a visit to a property;
             (8)      Referring a person to another broker or service provider; or
             (9)      Providing a one-time showing of one property only to a potential buyer or lessee.

Source: SL 1998, ch 229, § 5.

36-21A-129 "Substantive contact" defined.
     36-21A-129.   "Substantive contact" defined. For the purposes of this chapter, substantive contact is any performance beyond initial acts described in § 36-21A-128 and includes discussion of:
             (1)      Any specific financial qualifications of the buyer; or
             (2)      The selling or buying motives or objectives of the seller or buyer, in which the consumer may divulge any confidential personal or financial information, which if disclosed to the other party, could harm that party's bargaining position.

Source: SL 1998, ch 229, § 6.

36-21A-130 Agency agreements--Requirements.
     36-21A-130.   Agency agreements--Requirements. Any agency agreement in which a broker represents a seller or lessor shall be in writing and shall contain the proper legal description, the price and terms, the date of authorization, the expiration date, the type of agency relationship established, compensation to be paid, authorization to cooperate with or compensate other brokers, and the signatures of all parties. The licensee who obtains the agreement shall give the person signing a copy of the agreement.
     Any agency agreement in which a broker represents a buyer or tenant shall be in writing and shall contain a description of the type and geographical area of property sought by the client, the type of agency relationship established, the compensation to be paid, the date of authorization, the date of expiration, and the signatures of all parties. The licensee who obtains the agreement shall give the person signing a copy of the agreement.
     An agency agreement between a broker and a buyer, seller, or lessee may not include a provision for automatic renewal of the agreement at expiration. A property management agreement may include a provision for automatic renewal at expiration if it contains a provision for written cancellation on terms agreeable to all parties to the agreement.
     When entering into an agency agreement, a broker shall provide a clear and complete explanation of the broker's representation of the interests of the seller/landlord or buyer/tenant. If the broker represents more than one party in a transaction, the agreement shall state how the representation may be altered. The agreement shall require authorization of all parties to the transaction before the broker initiates any transaction in which the broker would represent all parties.
     An agency agreement shall be signed by the responsible broker. However, the responsible broker may authorize a salesperson or broker associate to sign agreements on behalf of the responsible broker.
     The commission may promulgate rules pursuant to chapter 1-26 to provide for uniform provisions in any agency agreement under this section.

Source: SL 1998, ch 229, § 7.

36-21A-131 Licensee--Limited relationships.
     36-21A-131.   Licensee--Limited relationships. Any licensee performing services authorized by §§ 36-21A-119 to 36-21A-150, inclusive, is limited to the following relationships:
             (1)      Single agent:
             (a)      Seller/landlord agent;
             (b)      Buyer/tenant agent;
             (2)      Limited agent;
             (3)      Subagent; and
             (4)      Transaction broker.

Source: SL 1998, ch 229, § 8.

36-21A-132 Duties and obligations of licensee representing seller or landlord.
     36-21A-132.   Duties and obligations of licensee representing seller or landlord. Any licensee representing a seller or landlord has the following duties and obligations:
             (1)      To perform the terms of the written agreement made with the client;
             (2)      To exercise reasonable skill and care for the client;
             (3)      To promote the interest of the client with the utmost good faith, loyalty, and fidelity, including:
             (a)      Seeking a price and terms which are acceptable to the client. However, the licensee is not obligated to seek additional offers to purchase the property while the property is subject to a contract for sale or to seek additional offers to lease the property while the property is subject to a lease or letter of intent to lease;
             (b)      Presenting all written offers to and from the client in a timely manner regardless of whether the property is subject to a contract for sale or lease or a letter of intent to lease;
             (c)      Disclosing to the client all adverse material facts actually known by the licensee; and
             (d)      Advising the client to obtain expert advice as to material matters about which the licensee knows but the specifics of which are beyond the expertise of the licensee;
             (4)      To account in a timely manner for all money and property received; and
             (5)      To comply with any applicable federal, state, and local laws, rules, regulations, and ordinances, including fair housing and civil rights statutes, or regulations.

Source: SL 1998, ch 229, § 9.

36-21A-133 Seller's or landlord's agent not to disclose certain information without express authority...
     36-21A-133.   Seller's or landlord's agent not to disclose certain information without express authority--Exceptions. Without the express authority of the seller or landlord, no licensee acting as a seller's or landlord's agent may disclose any confidential information about the client unless disclosure is required by statute or rule or failure to disclose the information would constitute misrepresentation. No cause of action for any person may arise against a seller's agent for making any required or permitted disclosure.
     A seller's agent does not terminate the seller's agency relationship by making any required or permitted disclosures.

Source: SL 1998, ch 229, § 10.

36-21A-134 Seller's agent has no fiduciary duty to customer.
     36-21A-134.   Seller's agent has no fiduciary duty to customer. No licensee acting as a seller's or landlord's agent owes any fiduciary duty or obligation to a customer. A licensee shall provide disclosure of all adverse material facts known by the licensee to any customer.
     No seller's or landlord's agent owes any duty to conduct an independent inspection of the property.

Source: SL 1998, ch 229, § 11.

36-21A-134.1 No duty to disclose sex offender information.
     36-21A-134.1.   No duty to disclose sex offender information. No licensee representing a seller or landlord has a duty to investigate, volunteer, or disclose information regarding a registered sex offender residing on or near the property.

Source: SL 2000, ch 196, § 1.

36-21A-135 Seller's agent may show other properties.
     36-21A-135.   Seller's agent may show other properties. A seller's or landlord's agent may show alternative properties not owned by the client to prospective buyers and may list competing properties for sale or lease without breaching any duty or obligation to the client.

Source: SL 1998, ch 229, § 12.

36-21A-136 Duties and obligations of licensee representing buyer or tenant.
     36-21A-136.   Duties and obligations of licensee representing buyer or tenant. Any licensee representing a buyer or tenant has the following duties and obligations:
             (1)      To perform the terms of any written agreement made with the client;
             (2)      To exercise reasonable skill and care for the client;
             (3)      To promote the interest of the client with the utmost good faith, loyalty, and fidelity, including:
             (a)      Seeking a price and terms which are acceptable to the client. However, the licensee is not obligated to seek other properties while the client is a party to a contract to purchase property or to a lease or letter of intent to lease;
             (b)      Presenting all written offers to and from the client in a timely manner regardless of whether the client is already a party to a contract to purchase property or is already a party to a contract or a letter of intent to lease;
             (c)      Disclosing to the client adverse material facts known by the licensee; and
             (d)      Advising the client to obtain expert advice as to material matters about which the licensee knows but the specifics of which are beyond the expertise of the licensee;
             (4)      To account in a timely manner for all money and property received; and
             (5)      To comply with any applicable federal, state, and local laws, rules, regulations, and ordinances, including fair housing and civil rights statutes or regulations.

Source: SL 1998, ch 229, § 13.

36-21A-137 Buyer's or tenant's agent not to disclose certain information without written authority--E...
     36-21A-137.   Buyer's or tenant's agent not to disclose certain information without written authority--Exceptions. Without the express written authority of the buyer or tenant, no licensee acting as a buyer's or tenant's agent may disclose any confidential information about the client unless disclosure is required by statute or rule or failure to disclose the information would constitute misrepresentation. No cause of action for any person may arise against a licensee acting as a buyer's or tenant's agent for making any required or permitted disclosure.
     A buyer's agent does not terminate the buyer's agency relationship by making any required or permitted disclosures.

Source: SL 1998, ch 229, § 14.

36-21A-138 Buyer's agent has no fiduciary duty to customer.
     36-21A-138.   Buyer's agent has no fiduciary duty to customer. No licensee acting as a buyer's or tenant's agent owes any fiduciary duty or obligation to a customer. A licensee shall provide disclosure of all adverse material facts known by the licensee to any customer.
     No buyer's or tenant's agent owes any duty to conduct an independent investigation of the client's financial condition.

Source: SL 1998, ch 229, § 15.

36-21A-138.1 No duty to volunteer sex offender information--Actual knowledge must be disclosed upon inq...
     36-21A-138.1.   No duty to volunteer sex offender information--Actual knowledge must be disclosed upon inquiry. No licensee representing a buyer or tenant has a duty to investigate or volunteer information regarding a registered sex offender residing on or near the property. However, upon inquiry by the licensee's client, the licensee representing a buyer or tenant shall disclose to the client any actual knowledge that the licensee may have regarding a registered sex offender residing on or near the property.

Source: SL 2000, ch 196, § 2.

36-21A-139 Buyer's agent may show property to competing clients.
     36-21A-139.   Buyer's agent may show property to competing clients. A buyer's or tenant's agent may show properties in which the client is interested to other prospective buyers or tenants without breaching any duty or obligation to the client. This section does not prohibit a buyer's or tenant's agent from showing competing clients the same property and from assisting competing clients in attempting to purchase or lease a particular property.

Source: SL 1998, ch 229, § 16.

36-21A-140 Licensee as limited agent--Written consent of all parties required--Duties and obligations...
     36-21A-140.   Licensee as limited agent--Written consent of all parties required--Duties and obligations. A licensee may act as a limited agent only with the informed written consent of all parties to the transaction. A limited agent is an agent for both the seller and the buyer and has the following duties and obligations:
             (1)      To perform the terms of any written agreement made with the client;
             (2)      To exercise reasonable skill and care for the client;
             (3)      To present all written offers to and from the client in a timely manner regardless of whether the client is already a party to a contract to purchase property or is already a party to a contract or a letter of intent to lease;
             (4)      To disclose to the client adverse material facts known by the licensee;
             (5)      To advise the client to obtain expert advice as to material matters about which the licensee knows but the specifics of which are beyond the expertise of the licensee;
             (6)      To account in a timely manner for all money and property received; and
             (7)      To comply with any applicable federal, state, and local laws, rules, regulations, and ordinances, including fair housing and civil rights statutes or regulations.

Source: SL 1998, ch 229, § 17.

36-21A-141 Certain information not to be disclosed by limited agent without written consent.
     36-21A-141.   Certain information not to be disclosed by limited agent without written consent. The following information may not be disclosed by a limited agent without the informed written consent of the client to whom the information pertains:
             (1)      That a buyer is willing to pay more than the asking price or lease rate offered for the property;
             (2)      That a seller is willing to accept less than the asking price or lease rate for the property;
             (3)      What the motivating factors are for any client, buying, selling, or leasing the property; and
             (4)      That a client will agree to financing terms other than those offered.

Source: SL 1998, ch 229, § 18.

36-21A-141.1 Appointment of licensee to act as appointed agent of client to exclusion of other licensee...
     36-21A-141.1.   Appointment of licensee to act as appointed agent of client to exclusion of other licensees--Limited agent--Information--Rules. A real estate brokerage entering into an agency agreement may, through the responsible broker, appoint to the client those licensees affiliated with the brokerage who will act as appointed agents of that client to the exclusion of all other licensees affiliated with the brokerage. The appointment shall be in writing. A responsible broker is not a limited agent solely because the broker makes an appointment pursuant to this section. However, any licensee who personally represents both the seller and buyer or both the landlord and tenant in a particular transaction is a limited agent and shall comply with the provisions governing limited agents.
     When an agent is appointed pursuant to this section, each client, the real estate brokerage, and any appointed licensee is considered to possess only actual knowledge and information. There is no imputation of knowledge or information by operation of law among or between the client, the real estate brokerage, and the appointed agent.
     The commission shall promulgate rules pursuant to chapter 1-26 to establish appointed agent procedures regarding disclosure and confidentiality.

Source: SL 2005, ch 203, § 1.

36-21A-142 Limited agent not to disclose certain information about one client to another without writ...
     36-21A-142.   Limited agent not to disclose certain information about one client to another without written authority--Exceptions. Without the express written authority of a client, no limited agent may disclose to one client any confidential information about the other client unless the disclosure is required by statute or rule or failure to disclose the information would constitute misrepresentation. No cause of action for any person may arise against a limited agent for making any required or permitted disclosure.
     A limited agent does not terminate the limited agency relationship by making any required or permitted disclosures.

Source: SL 1998, ch 229, § 19.

36-21A-143 "Subagency" defined.
     36-21A-143.   "Subagency" defined. For the purposes of this chapter, a subagency is any situation in which a responsible broker or licensees associated with the broker act for another broker's client with written permission of the client. The subagent owes the same obligations and responsibilities to the client as does the client's broker.

Source: SL 1998, ch 229, § 20.

36-21A-144 Transaction broker--Duties and obligations.
     36-21A-144.   Transaction broker--Duties and obligations. Any licensee acting as a transaction broker has the following duties and obligations:
             (1)      To perform the terms of any written agreement made with the customer;
             (2)      To exercise reasonable skill and care for the customer;
             (3)      To present all offers in a timely manner;
             (4)      To account in a timely manner for all money and property received;
             (5)      To comply with any applicable federal, state, and local laws, rules, regulations, and ordinances including fair housing and civil rights statutes or regulations; and
             (6)      To disclose to the customer all adverse material facts known by the licensee.
     No licensee acting as a transaction broker may advise any party to a transaction to the detriment of another party.

Source: SL 1998, ch 229, § 21.

36-21A-145 Transaction broker not responsible for--Independent inspections--Statements by seller--Fin...
     36-21A-145.   Transaction broker not responsible for--Independent inspections--Statements by seller--Finances. No licensee acting as a transaction broker has any duty to:
             (1)      Conduct an independent inspection of the property for the benefit of any party to the transaction;
             (2)      Independently verify the accuracy or completeness of statements made by the seller, landlord, buyer, tenant, or qualified third-party inspector; or
             (3)      Conduct an independent investigation of the buyer's or tenant's financial condition.

Source: SL 1998, ch 229, § 22.

36-21A-146 Certain information not to be disclosed by transaction broker without written consent.
     36-21A-146.   Certain information not to be disclosed by transaction broker without written consent. The following information may not be disclosed by the transaction broker without the informed written consent of the customer:
             (1)      That a buyer is willing to pay more than the asking price or lease rate offered for the property;
             (2)      That a seller is willing to accept less than the asking price or lease rate for the property;
             (3)      What the motivating factors are for any customer, buying, selling, or leasing the property;
             (4)      That a customer will agree to financing terms other than those offered; and
             (5)      Any confidential information about a party to the transaction to the other party unless the disclosure is required by statute or rule or failure to disclose the information would constitute misrepresentation.

Source: SL 1998, ch 229, § 23.

36-21A-147 Office policies--Relationships--Written disclosure.
     36-21A-147.   Office policies--Relationships--Written disclosure. Every responsible broker shall develop and maintain a written office policy that specifically sets forth agency and brokerage relationships that the broker may establish. At the first substantive contact with a seller or buyer who has not entered into a written agreement with a broker, the licensee shall:
             (1)      Disclose in writing to that person the types of agency and brokerage relationships the broker is offering to that person; and
             (2)      Provide that person with a written copy of a disclosure on a form prescribed by the commission.
     The written disclosure shall contain a signature block for the client or customer to acknowledge receipt of the disclosure. The customer's acknowledgment of disclosure does not constitute a contract with the licensee. If the customer fails or refuses to sign the disclosure, the licensee shall note that fact on a copy of the disclosure and retain the copy.
     After a seller and buyer have entered into a written agency or brokerage agreement with a broker, no other licensee is required to make the disclosures required by this section.
     The commission may prescribe the disclosure form by rules promulgated pursuant to chapter 1-26.

Source: SL 1998, ch 229, § 24.

36-21A-148 Client, licensee not liable for misrepresentation made by the other--Exception.
     36-21A-148.   Client, licensee not liable for misrepresentation made by the other--Exception. No client or customer is liable for any misrepresentation made by the licensee arising out of their agency or brokerage agreement unless the client or customer knew of the misrepresentation.
     No licensee is liable for a misrepresentation of the licensee's client arising out of the agency agreement unless the licensee knew of the misrepresentation.
     In any agency or brokerage relationship, the licensees, each client or customer, and the real estate brokerage are required to possess only actual knowledge and information. There is no imputation of knowledge or information by operation of law among or between the clients or customers, the real estate brokerage, and its licensees.

Source: SL 1998, ch 229, § 25.

36-21A-149 Duties under common law.
     36-21A-149.   Duties under common law. This section supersedes only the duties of the parties under the common law, including fiduciary duties of an agent to a principal, to the extent inconsistent with this chapter. The common law continues to apply to the parties in all other respects. This chapter does not affect the duties of any licensee while engaging in the authorized or unauthorized practice of law as determined by the courts of this state.

Source: SL 1998, ch 229, § 26.

36-21A-150 Duties of broker or licensee after transaction finished.
     36-21A-150.   Duties of broker or licensee after transaction finished. Unless otherwise provided in the agreement or by law, no broker and licensee associated with that broker engaged as a seller's/landlord's or buyer's/tenant's agent, subagent, limited agent, or transaction broker owes any further duty or obligation to a client or customer after termination, expiration, completion, or performance of the agency or brokerage agreement, except for the following duties:
             (1)      Accounting for all moneys and property related to and received during the engagement; and
             (2)      Keeping confidential all information received during the course of the engagement.

Source: SL 1998, ch 229, § 27.

36-21A-151 Applicants for licensure and registration and licensees under disciplinary investigation t...
     36-21A-151.   Applicants for licensure and registration and licensees under disciplinary investigation to submit to criminal background check. Each applicant for licensure and registration under this chapter in this state shall submit to a state and federal criminal background investigation by means of fingerprint checks by the Division of Criminal Investigation and the Federal Bureau of Investigation. Upon application, the commission shall submit completed fingerprint cards to the Division of Criminal Investigation. Upon completion of the criminal background check, the Division of Criminal Investigation shall forward to the commission all information obtained as a result of the criminal background check. This information shall be obtained prior to licensure of the applicant. The commission may require a state and federal criminal background check for any licensee who is the subject of a disciplinary investigation by the commission. Failure to submit or cooperate with the criminal background investigation is grounds for denial of an application or may result in revocation of a license. The applicant shall pay for any fees charged for the cost of fingerprinting or the criminal background investigation.

Source: SL 2009, ch 190, § 1.

Title 36