(A) "Real estate broker" includes any person, partnership, | 14 |
association, limited liability company, limited liability | 15 |
partnership, or corporation, foreign or domestic, who for
another, | 16 |
whether pursuant to a power of attorney or otherwise,
and who for | 17 |
a fee, commission, or other valuable consideration,
or with the | 18 |
intention, or in the expectation, or upon the promise
of receiving | 19 |
or collecting a fee, commission, or other valuable
consideration | 20 |
does any of the following: | 21 |
(8) Is engaged in the business of charging an advance fee
or | 43 |
contracting for collection of a fee in connection with any | 44 |
contract whereby the broker undertakes primarily to promote
the | 45 |
sale,
exchange, purchase, rental, or leasing of real estate | 46 |
through its
listing in a publication issued primarily for such | 47 |
purpose, or
for referral of information concerning such real | 48 |
estate to
brokers, or both, except that this division does not | 49 |
apply to a
publisher of listings or compilations of sales of real | 50 |
estate by
their owners; | 51 |
(F) "Foreign real estate dealer" includes any person, | 78 |
partnership, association, limited liability company, limited | 79 |
liability
partnership, or corporation, foreign or domestic,
who | 80 |
for another, whether pursuant to a power of attorney or
otherwise, | 81 |
and who for a fee, commission, or other valuable
consideration, or | 82 |
with the intention, or in the expectation, or
upon the promise of | 83 |
receiving or collecting a fee, commission, or
other valuable | 84 |
consideration, does or deals in any act or
transaction specified | 85 |
or comprehended in division (A) of this
section with respect to | 86 |
foreign real estate. | 87 |
(H) Any person, partnership, association, limited liability | 93 |
company,
limited liability partnership, or corporation,
who, for | 94 |
another, in consideration of compensation, by fee,
commission, | 95 |
salary, or otherwise, or with the intention, in the
expectation, | 96 |
or upon the promise of receiving or collecting a
fee, does, or | 97 |
offers, attempts, or agrees to engage in, any
single act or | 98 |
transaction contained in the definition of a real
estate broker, | 99 |
whether an act is an
incidental part of a transaction, or the | 100 |
entire transaction,
shall be constituted a real estate broker or | 101 |
real estate
salesperson under this chapter. | 102 |
(I) The terms "real estate broker," "real estate | 103 |
salesperson," "foreign real estate dealer," and
"foreign real | 104 |
estate salesperson" do not include a
person, partnership, | 105 |
association, limited liability company, limited
liability | 106 |
partnership, or
corporation, or the regular employees thereof, who | 107 |
perform any
of the acts or transactions specified or comprehended | 108 |
in division
(A) of this section, whether or not for, or with the | 109 |
intention,
in expectation, or upon the promise of receiving or | 110 |
collecting a
fee, commission, or other valuable consideration: | 111 |
(1) With reference to real estate situated in this state
or | 112 |
any interest in it owned by such person, partnership,
association, | 113 |
limited liability company, limited liability
partnership, or | 114 |
corporation, or acquired on its own account in
the regular course | 115 |
of, or as an incident to the management of the
property and the | 116 |
investment in it; | 117 |
(2) As receiver or trustee in bankruptcy, as guardian, | 118 |
executor, administrator, trustee, assignee, commissioner, or any | 119 |
person doing the things mentioned in this section, under
authority | 120 |
or appointment of, or incident to a proceeding in, any
court, or | 121 |
as a public officer, or as executor, trustee, or other
bona fide | 122 |
fiduciary under any trust agreement, deed of trust,
will, or other | 123 |
instrument creating a like bona fide fiduciary
obligation; | 124 |
(L) "Superintendent"
or "superintendent of real estate" | 149 |
means the superintendent of
the division of real estate and | 150 |
professional licensing of this
state. Whenever the division or | 151 |
superintendent of real estate
is referred to or designated in any | 152 |
statute, rule, contract, or
other document, the reference or | 153 |
designation shall be deemed to
refer to the division or | 154 |
superintendent of real estate and
professional licensing, as the | 155 |
case may be. | 156 |
(R) "Commercial real estate" means any parcel of
real estate | 175 |
in this state other than real estate
containing one to four | 176 |
residential units. "Commercial real
estate" does not include | 177 |
single-family residential units such as
condominiums, townhouses, | 178 |
manufactured homes, or homes in a
subdivision when sold, leased, | 179 |
or otherwise conveyed on a
unit-by-unit basis, even when those | 180 |
units are a part of a larger
building or parcel of real estate | 181 |
containing more than four
residential units. | 182 |
Sec. 4735.02. NoExcept as provided in section 4735.022 of | 191 |
the Revised Code, no person, partnership, association, limited | 192 |
liability
company, limited liability partnership, or
corporation | 193 |
shall act as a real estate broker or real estate
salesperson, or | 194 |
advertise or assume to act as such, without first
being licensed | 195 |
as provided in this chapter.
No person, partnership, association, | 196 |
limited liability company,
limited liability partnership, or | 197 |
corporation shall provide services
that require a license under | 198 |
this chapter if the licensee's license is
inactive, suspended, or | 199 |
a broker's license on deposit, or if the
license has been revoked.
| 200 |
Nothing contained in this chapter
shall be construed as | 201 |
authorizing a real estate
broker or salesperson to perform any | 202 |
service
constituting the practice of law. | 203 |
No partnership, association, limited liability company, | 204 |
limited liability
partnership, or corporation holding a real | 205 |
estate license shall employ as an officer, director, manager, or | 206 |
principal employee any person previously holding a license as a | 207 |
real estate broker, real estate salesperson,
foreign real estate | 208 |
dealer, or foreign real estate
salesperson, whose license has been | 209 |
placed in inactive status, suspended, or
revoked and
who has not | 210 |
thereafter reactivated the license or received a new
license. | 211 |
Sec. 4735.022. (A) An out of state commercial broker, for a | 212 |
fee, commission, or other valuable consideration, or in the | 213 |
expectation, or upon the promise of receiving or collecting a fee, | 214 |
commission, or other valuable consideration, may perform those | 215 |
acts that require a license under this chapter, with respect to | 216 |
commercial real estate, provided that the out of state commercial | 217 |
broker does all of the following: | 218 |
(C) By filing a consent-to-jurisdiction document as | 268 |
described under
division (A)(4) of section 4735.022 of the Revised | 269 |
Code, the
person giving the consent makes and constitutes the | 270 |
secretary of
state as an agent for service of process in this | 271 |
state including
summonses and subpoenas. Service of process upon | 272 |
any such person
may be initiated by leaving with the secretary of | 273 |
state or an
assistant secretary of state four copies of the | 274 |
process, together
with an affidavit stating the address of the | 275 |
person given on the
consent-to-jurisdiction document and a fee of | 276 |
five dollars. Upon
receipt of the process, affidavit, and fee, | 277 |
the secretary of state
immediately shall give notice to the person | 278 |
at the address given
in the affidavit and forward to that address | 279 |
by certified mail,
return receipt requested, a copy of the | 280 |
process. Service is
considered to be complete upon the mailing of | 281 |
the
notice and copy of
process in accordance with this division. | 282 |
(D) A person, partnership, association, limited liability | 283 |
company, limited liability partnership, or corporation licensed in | 284 |
a jurisdiction where there is no legal distinction between a real | 285 |
estate broker license and a real estate salesperson license must | 286 |
meet the requirements of division (A) of this section before | 287 |
engaging in any activity that requires a real estate broker | 288 |
license in this state.
| 289 |
(c) Standards for the approval of courses of study
required | 308 |
for licenses, or offered in preparation for license
examinations, | 309 |
or required as continuing education for licenses. The rules
shall | 310 |
specify that no standard for the approval of
a course of study | 311 |
required as continuing education for licensees shall require
that | 312 |
licensees pass an examination as a condition for the successful | 313 |
completion of a continuing education requirement. A person | 314 |
providing a
continuing education course may administer | 315 |
examinations for the purpose of
evaluating the effectiveness of | 316 |
the course. | 317 |
(C) The commission or superintendent may hear testimony in | 368 |
matters relating to the duties imposed upon them, and the | 369 |
president of the commission and superintendent may administer | 370 |
oaths. The commission or superintendent may require other proof | 371 |
of the honesty, truthfulness, and good reputation of any person | 372 |
named in an application for a real estate broker's or real
estate | 373 |
salesperson's license before admitting the applicant to the | 374 |
examination or
issuing a license. | 375 |
The commission, in accordance with rules adopted under | 384 |
division
(A)(2)(f)(g) of section 4735.10 of the Revised Code, | 385 |
shall
impose a special
assessment not to exceed ten dollars | 386 |
annually on
each licensee filing a
notice of renewal
under section | 387 |
4735.14 of
the Revised Code if the amount
available in the fund is | 388 |
less than
one million dollars on the first day of July preceding | 389 |
that
filing.
The commission may impose a special assessment not | 390 |
to
exceed five dollars
annually if the amount available in the | 391 |
fund
is greater than one million dollars, but less than two | 392 |
million
dollars on
the first day of July preceding that filing. | 393 |
The
commission shall
not impose a special assessment if the amount | 394 |
available in the fund exceeds
two million dollars on the first day | 395 |
of July preceding that
filing. | 396 |
(B)(1) Any person who obtains a final judgment in any court | 397 |
of competent
jurisdiction against any broker or salesperson | 398 |
licensed under this chapter, on
the grounds of conduct that is in | 399 |
violation of this chapter or
the rules adopted under it, and that | 400 |
is associated with an act or transaction that only a licensed real | 401 |
estate
broker or licensed real
estate salesperson is authorized to | 402 |
perform as specified in division (A) or
(C)
of section 4735.01 of | 403 |
the Revised Code, may file a
verified application, as described in | 404 |
division (B)(3)
of this section, in any court
of common pleas for | 405 |
an order directing payment out of the real
estate recovery fund of | 406 |
the portion of the judgment that remains
unpaid and that | 407 |
represents the actual and direct loss sustained
by the applicant. | 408 |
(2) Punitive damages, attorney's fees, and interest on a | 409 |
judgment
are not recoverable from the fund. In the discretion of | 410 |
the
superintendent of real estate, court costs
may be recovered | 411 |
from the fund, and, if the superintendent authorizes
the recovery | 412 |
of court costs, the order of
the court of common pleas then may | 413 |
direct their payment from the
fund. | 414 |
(3) The application shall specify the nature of the act or | 415 |
transaction upon which the underlying judgment was based, the | 416 |
activities of the applicant in pursuit of remedies available
under | 417 |
law for the collection of judgments, and the actual and
direct | 418 |
losses, attorney's fees, and the court costs sustained
or incurred | 419 |
by the applicant. The applicant shall attach to the
application a | 420 |
copy of each pleading and order in the underlying
court action. | 421 |
(C) A person who applies to a court of common pleas for an | 451 |
order directing payment out of the fund shall file notice of the | 452 |
application with the superintendent. The superintendent may | 453 |
defend any such action on behalf of the fund and shall have | 454 |
recourse to all appropriate means of defense and review,
including | 455 |
examination of witnesses, verification of actual and
direct | 456 |
losses, and challenges to the underlying judgment required in | 457 |
division (B)(4)(a) of this section to determine
whether the | 458 |
underlying judgment is based on activity only a licensed broker or | 459 |
licensed salesperson is permitted to perform. The superintendent | 460 |
may move
the court at any time to dismiss the application when it | 461 |
appears
there are no triable issues and the application is without | 462 |
merit.
The motion may be supported by affidavit of any person | 463 |
having
knowledge of the facts and may be made on the basis that | 464 |
the
application, including the judgment referred to in it, does | 465 |
not
form the basis for a meritorious recovery claim; provided, | 466 |
that
the superintendent shall give written notice to the applicant | 467 |
at
least ten days before such motion. The superintendent may, | 468 |
subject to court approval, compromise a claim based upon the | 469 |
application of an aggrieved party. The superintendent shall
not | 470 |
be bound by any prior compromise or stipulation of the judgment | 471 |
debtor. | 472 |
(D) Notwithstanding any other provision of this section,
the | 473 |
liability of the fund shall not exceed forty thousand dollars
for | 474 |
any one licensee. If a licensee's license is
reactivated as | 475 |
provided in
division (E) of this section, the liability of the | 476 |
fund for the
licensee under this section shall again be forty | 477 |
thousand dollars, but
only for transactions that occur subsequent | 478 |
to the time of
reactivation. | 479 |
If the forty-thousand-dollar liability of the fund is | 480 |
insufficient to pay in full the valid claims of all aggrieved | 481 |
persons by whom claims have been filed against any one licensee, | 482 |
the forty thousand dollars shall be distributed among them in
the | 483 |
ratio that their respective claims bear to the aggregate of
valid | 484 |
claims or in such other manner as the court finds
equitable. | 485 |
Distribution of moneys shall be among the
persons entitled to | 486 |
share in it, without regard to the order of
priority in which | 487 |
their respective judgments may have been
obtained or their claims | 488 |
have been filed. Upon petition of the
superintendent, the court | 489 |
may require all claimants and
prospective claimants against one | 490 |
licensee to be joined in one
action, to the end that the | 491 |
respective rights of all such
claimants to the fund may be | 492 |
equitably adjudicated and settled. | 493 |
(E) If the superintendent pays from the fund any amount in | 494 |
settlement of a claim or toward satisfaction of a judgment
against | 495 |
a licensed broker or salesperson, the license
of the broker or | 496 |
salesperson shall be automatically suspended upon the date of | 497 |
payment from the fund. The
superintendent shall not reactivate | 498 |
the suspended license of that
broker or salesperson until the | 499 |
broker or salesperson has repaid in full,
plus
interest per annum | 500 |
at the rate specified in division (A) of section
1343.03 of the | 501 |
Revised Code, the amount paid from the fund on
the broker's or | 502 |
salesperson's account. A discharge in bankruptcy does
not relieve | 503 |
a person from the suspension and requirements for
reactivation | 504 |
provided in this section unless the underlying judgment has been | 505 |
included
in the discharge and has not been reaffirmed by the | 506 |
debtor. | 507 |
(F) If, at any time, the money deposited in the fund is | 508 |
insufficient to satisfy any duly authorized claim or portion of a | 509 |
claim, the superintendent shall, when sufficient money has been | 510 |
deposited in the fund, satisfy such unpaid claims or portions, in | 511 |
the order that such claims or portions were originally filed,
plus | 512 |
accumulated interest per annum at the rate specified in
division | 513 |
(A) of section 1343.03 of the Revised Code. | 514 |
(G) When, upon the order of the court, the superintendent | 515 |
has paid from the fund any sum to the judgment creditor, the | 516 |
superintendent shall be subrogated to all of the rights of the | 517 |
judgment creditor to the extent of the amount so paid, and the | 518 |
judgment
creditor shall assign all the judgment creditor's right, | 519 |
title, and interest
in the judgment to the superintendent to the | 520 |
extent of the amount
so paid. Any amount and interest so | 521 |
recovered by the
superintendent on the judgment shall be deposited | 522 |
in the fund. | 523 |
(B) Each licensed broker, brokerage, or salesperson shall | 539 |
file, on or
before
the date the Ohio real estate commission has | 540 |
adopted by rule for that licensee
in accordance with division | 541 |
(A)(2)(e)(f) of section 4735.10 of the Revised Code,
a notice of | 542 |
renewal on a
form prescribed by the
superintendent of real estate. | 543 |
The licensee shall indicate on the form
whether the licensee | 544 |
wishes to maintain the licensee's license in an active or
inactive | 545 |
status. The
notice of renewal shall
be mailed by the | 546 |
superintendent
to the most current personal residence address of | 547 |
each
broker or salesperson as filed with the superintendent by the | 548 |
licensee
and the place of business address of the brokerage two | 549 |
months prior to the filing deadline. | 550 |
(C) The license of any real estate broker,
brokerage, or | 551 |
salesperson that fails
to file a notice of renewal on or
before | 552 |
the filing deadline of each
ensuing year shall be
suspended | 553 |
automatically without the taking of any action by
the | 554 |
superintendent. A suspended license
may be reactivated within | 555 |
twelve months of
the date of suspension, provided that the renewal | 556 |
fee plus a penalty fee of fifty per
cent of the renewal fee is | 557 |
paid to the superintendent. Failure to reactivate
the license as | 558 |
provided in this division shall result in automatic
revocation of | 559 |
the
license without the taking of any action by the | 560 |
superintendent. No
person, partnership, association, corporation, | 561 |
limited liability
company, or limited partnership shall engage in | 562 |
any act or acts for which a
real estate license is required while | 563 |
that entity's license is
placed in an inactive status, suspended, | 564 |
or revoked. The
commission shall adopt rules in accordance with | 565 |
Chapter 119. of
the Revised Code to
provide to licensees notice of | 566 |
suspension or revocation or both. | 567 |
Sec. 4735.18. (A) Subject to section 4735.32 of the
Revised | 576 |
Code, the superintendent of real estate, upon the superintendent's | 577 |
own
motion, may investigate the conduct of any licensee. Subject | 578 |
to
section 4735.32 of the Revised Code, the Ohio real estate | 579 |
commission shall,
pursuant to section 4735.051 of the Revised | 580 |
Code, impose disciplinary
sanctions upon any licensee who, whether | 581 |
or not acting in the licensee's
capacity as a real estate broker | 582 |
or salesperson, or in handling the licensee's
own property, is | 583 |
found to have been convicted of
a felony or a crime of moral | 584 |
turpitude, and shall, pursuant to
section 4735.051 of the Revised | 585 |
Code, impose disciplinary sanctions upon any
licensee who, in the | 586 |
licensee's capacity as a real
estate broker or salesperson, or in | 587 |
handling the licensee's own property, is
found guilty of: | 588 |
(7)(a) By final adjudication by a court, a violation of
any | 603 |
municipal or federal civil rights law relevant to the
protection | 604 |
of purchasers or sellers of real estate or, by final
adjudication | 605 |
by a court, any unlawful discriminatory practice
pertaining to the | 606 |
purchase or sale of real estate prohibited by
Chapter 4112. of the | 607 |
Revised Code, provided that such violation
arose out of a | 608 |
situation wherein parties were engaged in bona
fide efforts to | 609 |
purchase, sell, or lease real estate, in the licensee's
practice | 610 |
as a licensed real estate broker or salesperson; | 611 |
(b) A second or subsequent violation of any unlawful | 612 |
discriminatory practice pertaining to the purchase or sale of
real | 613 |
estate prohibited by Chapter 4112. of the Revised Code or
any | 614 |
second or subsequent violation of municipal or federal civil | 615 |
rights laws relevant to purchasing or selling real estate whether | 616 |
or not there has been a final adjudication by a court, provided | 617 |
that such violation arose out of a situation wherein parties were | 618 |
engaged in bona fide efforts to purchase, sell, or lease real | 619 |
estate. For any second offense under this division, the | 620 |
commission shall suspend for a minimum of two months or revoke
the | 621 |
license of the broker or salesperson. For any subsequent
offense, | 622 |
the commission shall revoke the license of the broker or | 623 |
salesperson. | 624 |
(10) As a real estate broker, having demanded, without | 631 |
reasonable cause,
other
than
from a broker licensed under this | 632 |
chapter, a commission to which
the licensee is not entitled, or, | 633 |
as a real estate
salesperson, having demanded,
without
reasonable | 634 |
cause, a commission to which the licensee is not entitled; | 635 |
(19) Having negotiated the sale, exchange, or lease of any | 664 |
real property directly with an owner, purchaser, lessor, or tenant | 665 |
knowing
that such owner, purchaser, lessor, or tenant had a | 666 |
written outstanding
contract granting exclusive agency in | 667 |
connection with such property to another
real estate broker; | 668 |
(21) Having published advertising, whether printed, radio, | 673 |
display, or of any other nature, which was misleading or | 674 |
inaccurate in any material particular, or in any way having | 675 |
misrepresented any properties, terms, values, policies, or | 676 |
services of the business conducted; | 677 |
(24) Having failed to keep complete and accurate records
of | 685 |
all transactions for a period of three years from the date of
the | 686 |
transaction, such records to include copies of listing forms, | 687 |
earnest money receipts, offers to purchase and acceptances of | 688 |
them, and records of receipts and disbursements of all funds | 689 |
received by the licensee as broker and incident to the licensee's | 690 |
transactions
as
such, and any other instruments or papers related | 691 |
to the
performance of any of the acts set forth in the definition | 692 |
of a
real estate broker; | 693 |
(26) Failure to maintain at all times a special or trust | 698 |
bank account in a depository located in this state. The account | 699 |
shall be noninterest-bearing, separate and distinct from any | 700 |
personal or other account of the broker, and, except as
provided | 701 |
in division (A)(27) of this section, shall be used for the deposit | 702 |
and maintenance of all escrow funds, security deposits, and other | 703 |
moneys
received by the broker in a fiduciary capacity. The name, | 704 |
account number, if
any, and location of the depository wherein | 705 |
such special or trust
account is maintained shall be submitted in | 706 |
writing to the
superintendent. Checks drawn on such special or | 707 |
trust bank accounts are
deemed to meet the conditions imposed by | 708 |
section 1349.21 of the Revised Code. | 709 |
(27) Failure to maintain at all times a special or trust | 710 |
bank account in a
depository in this state, to be used exclusively | 711 |
for the deposit and
maintenance of all rents, security deposits, | 712 |
escrow funds, and other moneys
received by the broker in a | 713 |
fiduciary capacity in the course of managing real
property. This | 714 |
account shall be separate and distinct from any other account | 715 |
maintained by the broker. The name, account number, and location | 716 |
of the
depository shall be submitted in writing to the | 717 |
superintendent. This account
may earn interest, which shall be | 718 |
paid to the property owners on a pro rata
basis. | 719 |
(C) The commission shall, pursuant to section 4735.051 of | 764 |
the Revised Code,
impose disciplinary sanctions upon any foreign | 765 |
real estate dealer or
salesperson who, in that capacity or in | 766 |
handling the dealer's or salesperson's
own property, is found | 767 |
guilty of any of the acts or omissions specified or
comprehended | 768 |
in division (A) of this section insofar as the acts or omissions | 769 |
pertain to foreign real estate. If the commission imposes such | 770 |
sanctions upon
a foreign real estate salesperson for a violation | 771 |
of this
section, the commission also may suspend or revoke the | 772 |
license of
the foreign real estate dealer with whom the | 773 |
salesperson is affiliated if the commission finds that the dealer | 774 |
had
knowledge of the salesperson's actions that violated this | 775 |
section. | 776 |