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Sub. S. B. No. 106As Passed by the SenateAs Passed by the Senate
125th General Assembly | Regular Session | 2003-2004 |
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SENATORS Carey, Mumper, Stivers, Harris, Prentiss, Spada, Hottinger, Padgett, Schuler
A BILL
To amend sections 4735.03, 4735.04, 4735.05, 4735.051, 4735.06, 4735.09, 4735.13, 4735.14, 4735.141, 4735.15, 4735.53, 4735.58, 4735.70, 4735.71, and 4735.72, to enact new sections 4735.56 and 4735.57 and sections 4735.181 and 4735.182, and to repeal sections 4735.56, 4735.57, and 4735.73 of the Revised Code to modify agency relationships between real estate licensees and customers, including disclosures made to customers, to establish a penalty for noncompliance with disclosure requirements, and to make other changes to the Real Estate Broker Law.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 4735.03, 4735.04, 4735.05, 4735.051, 4735.06, 4735.09, 4735.13, 4735.14, 4735.141, 4735.15, 4735.53, 4735.58, 4735.70, 4735.71, and 4735.72 be amended and new sections 4735.56 and 4735.57 and sections 4735.181 and 4735.182 of the Revised Code be enacted to read as follows:
Sec. 4735.03. There is hereby created the Ohio real estate
commission, consisting of five members who shall be appointed by
the governor, with the advice and consent of the senate. Four
members shall have been engaged in the real estate business as
licensed real estate brokers in the state for a period of ten
years immediately preceding the appointment. One member shall
represent the public. Terms of office shall be for five years,
commencing on the first day of July and ending on the thirtieth
day of June. Each member shall hold office from the date of
appointment until the end of the term for which appointed. No
more than three members shall be members of any one political
party and no member of the commission concurrently may be a
member of the commission and the real estate appraiser board
created pursuant to section 4763.02 of the Revised Code. Each
member, before entering upon the duties of office, shall
subscribe to and file with the secretary of state the
constitutional oath of office. All vacancies which occur shall
be filled in the manner prescribed for the regular appointments
to the commission. Any member appointed to fill a vacancy
occurring prior to the expiration of the term for which the
member's predecessor was appointed shall hold office for the remainder of
such term. Any member shall continue in office subsequent to the
expiration date of the member's term until the
member's successor takes office, or
until a period of sixty days has elapsed, whichever occurs first. Annually,
upon the qualification of the member appointed in such
year, the commission shall organize by selecting from its members
a president and vice-president, and shall do all things necessary and
proper to
carry out and enforce this chapter. A majority of the members of
the commission shall constitute a quorum, but a lesser number may
adjourn from time to time. Each member of the commission shall
receive an amount fixed pursuant to section 124.14 of the Revised
Code for each day employed in the discharge of official
duties, and the member's actual and necessary expenses
incurred in the discharge of those duties. The commission or the superintendent of real estate may
investigate complaints concerning the violation of section
4735.02 or 4735.25 of the Revised Code and may subpoena witnesses
in connection with such investigations as provided in section
4735.04 of the Revised Code. The commission or the
superintendent may make application to the appropriate court for
an order enjoining the violation of section 4735.02 or 4735.25 of
the Revised Code, and upon a showing by the commission or the
superintendent that any person, firm, partnership, association, limited
liability company, limited liability partnership,
or corporation has violated or is about to violate section
4735.02 or 4735.25 of the Revised Code, an injunction,
restraining order, or such other order as may be appropriate
shall be granted by such court. (A) Adopt canons of ethics for the real estate industry; (B) Upon appeal by any party affected, or may upon its own
motion, review any order or application determination of the
superintendent, and may reverse,
vacate, or modify any order of the superintendent; (C) Administer the real estate education and research fund
and hear appeals from orders of the superintendent regarding
claims against that fund or against the real estate recovery
fund; (D) Direct the superintendent on the content, scheduling,
instruction, and offerings of real estate courses for
salesperson and broker educational requirements; (E) Disseminate to licensees and the public, information
relative to commission activities and decisions; (F) Notify licensees of changes in state and federal civil
rights laws pertaining to discrimination in the purchase or sale
of real estate and relevant case law, and inform licensees that
they are subject to disciplinary action if they do not comply
with the changes; (G) Publish and furnish to public libraries and to brokers
booklets on housing and remedies available to dissatisfied
clients under this chapter and Chapter 4112. of the Revised Code; (H) Provide training to commission members and employees of the division of real estate and professional licensing on issues relative to the real estate industry, which may include but not be limited to investigative techniques, real estate law, and real estate practices and procedures.
Sec. 4735.04. The Ohio real estate commission or the
superintendent of real estate may compel, by order or subpoena,
the attendance of witnesses to testify in relation to any matter
over which the commission or superintendent has jurisdiction and
which is the subject of inquiry and investigation by the
commission or superintendent, and require the production of any
book, paper, or document pertaining to such matter. For such
purpose, the commission or superintendent shall have the same
power as judges of county courts to administer oaths, compel the
attendance of witnesses, and punish them for refusal to testify.
Sheriffs and constables are required to serve and return such
process and shall receive the same fees for doing so as are
allowed for like services Service of the subpoena may be made by sheriffs or constables, or by certified mail, return receipt requested, and the subpoena shall be deemed served on the date delivery is made or the date the person refused to accept delivery. Witnesses shall receive, after their
appearance before the commission or superintendent, the fees and
mileage allowed in civil actions in courts of common pleas. If
two or more witnesses travel together in the same vehicle, the
mileage fee shall be paid to only one of those witnesses, but the
witnesses may agree to divide the fee among themselves in any
manner. In addition to the powers granted to the commission and
superintendent under this section, in case any person fails to
file any statement or report, obey any subpoena, give testimony,
answer questions, or produce any books, records, or papers as
required by the commission or superintendent under this chapter,
the court of common pleas of any county in the state, upon
application made to it by the commission or superintendent
setting forth such failure, may make an order awarding process of
subpoena or subpoena duces tecum for the person to appear and
testify before the commission or superintendent, and may order
any person to give testimony and answer questions, and to produce
books, records, or papers, as required by the commission or
superintendent. Upon the filing of such order in the office of
the clerk of the court of common pleas, the clerk, under the seal
of the court, shall issue process of subpoena for the person to
appear before the commission or superintendent at a time and
place named in the subpoena, and each day thereafter until the
examination of such person is completed. The subpoena may
contain a direction that the witness bring with him the witness
to the examination any books, records, or papers mentioned in the
subpoena. The clerk shall also issue, under the seal of the
court, such other orders, in reference to the examination,
appearance, and production of books, records, or papers, as the
court directs. If any person so summoned by subpoena fails to
obey the subpoena, to give testimony, to answer questions as
required, or to obey an order of the court, the court, on motion
supported by proof, may order an attachment for contempt to be
issued against the person charged with disobedience of any order
or injunction issued by the court under this chapter. If the
person is brought before the court by virtue of the attachment,
and if upon a hearing the disobedience appears, the court may
order the offender to be committed and kept in close custody.
Sec. 4735.05. (A) The Ohio real estate commission is a
part
of the department of commerce for administrative purposes.
The
director of commerce is ex officio the executive officer of
the
commission, or the director may designate any employee of the
department as superintendent of real estate and professional
licensing
to act as executive officer of the commission. The commission and the real estate appraiser board created
pursuant to section 4763.02 of the Revised Code shall each submit
to the director a list of three persons whom the commission and
the board consider qualified to be superintendent within sixty
days after the office of superintendent becomes vacant. The
director shall appoint a superintendent from the lists submitted
by the commission and the board, and the superintendent shall
serve at the pleasure of the director.
(B) The superintendent, except as otherwise provided,
shall
do all of the following in regard to this chapter: (1) Administer this chapter; (2) Issue all orders necessary to implement this chapter; (3) Investigate complaints concerning the violation of
this
chapter or the conduct of any licensee; (4) Establish and maintain an investigation and audit
section to investigate complaints and conduct inspections,
audits,
and other inquiries as in the judgment of the
superintendent are
appropriate to enforce this chapter. The
investigators or
auditors have the right to review and audit the
business records
of licensees and continuing education course providers
during
normal business hours. (5) Appoint a hearing examiner for any proceeding
involving
disciplinary action
under section 3123.47 or 4735.18 of
the
Revised Code; (6) Administer the real estate recovery fund. (C) The superintendent may do all of the following: (1) In connection with investigations and audits under
division (B) of this section, subpoena witnesses as provided in
section 4735.04 of the Revised Code; (2) Apply to the appropriate court to enjoin any violation
of this chapter. Upon a showing by the superintendent that any
person has violated or is about to violate any provision of this
chapter, the court shall grant an injunction, restraining order,
or other appropriate order. (3) Upon the death of a licensed broker or the revocation
or
suspension of the broker's license, if there is no other
licensed
broker within the business entity of the broker, appoint upon
application by any interested party, or, in the case of a
deceased
broker, subject to the approval by the appropriate
probate court,
recommend the appointment of, an ancillary trustee
who is
qualified as determined by the superintendent to conclude
the
business transactions of the deceased, revoked, or suspended
broker; (4) In conjunction with the enforcement of this chapter, when the superintendent of real estate has reasonable cause to believe that an applicant or licensee has committed a criminal offense, the superintendent of real estate may request the superintendent of the bureau of criminal identification and investigation to conduct a criminal records check of the applicant or licensee. The superintendent of the bureau of criminal identification and investigation shall obtain information from the federal bureau of investigation as part of the criminal records check of the applicant or licensee. The superintendent of real estate may assess the applicant or licensee a fee equal to the fee assessed for the criminal records check. (D) All information that is obtained by investigators and
auditors performing investigations or conducting inspections,
audits, and other inquiries pursuant to division (B)(4) of this
section, from licensees, complainants, or other persons, and all
reports, documents, and other work products that arise from that
information and that are prepared by the investigators, auditors,
or other personnel of the department, shall be held in confidence
by the superintendent, the investigators and auditors, and other
personnel of the department. Notwithstanding division (D) of section 2317.023 of the Revised Code, all information obtained by investigators or auditors from an informal mediation meeting held pursuant to section 4735.051 of the Revised Code, including but not limited to the agreement to mediate and the accommodation agreement, shall be held in confidence by the superintendent, investigators, auditors, and other personnel of the department.
Sec. 4735.051. (A) Within five business days after a
person files a signed written complaint against a licensed real
estate broker or licensed real estate salesperson with
the division of real estate, the superintendent of real estate
shall acknowledge receipt of the complaint and send a notice to
the licensee describing the acts complained of. The
acknowledgment to the complainant and the notice to the licensee
shall state that an informal mediation meeting will be held with the
complainant, the licensee, and an investigator from the
investigation and audit section of the division if the
complainant and licensee both file a request for such a meeting
within ten business days thereafter on a form provided by the
superintendent. (B) If the complainant and licensee both file with the
division requests for an informal mediation meeting, the superintendent
shall notify the complainant and licensee of the date of the
meeting, which shall be within twenty business days thereafter,
except that any party may request an extension of up to fifteen
business days for good cause shown. If the complainant and
licensee reach an
accommodation at an informal mediation meeting, the investigator shall so
report to the superintendent, the
complainant, and licensee and the complaint
file shall be closed, unless, based upon the investigator's
report, the superintendent finds evidence that the licensee has
violated section 4735.18 of the Revised Code. (C) If the complainant and licensee fail to agree to an
informal mediation meeting or
fail to reach an accommodation, or if the
superintendent finds evidence of a violation of section 4735.18
of the Revised Code, the superintendent shall, within five business
days of such
determination, so notify the complainant and licensee
and shall investigate the
conduct of the licensee against whom the complaint is filed. (D) Within sixty business days after receipt of the
complaint, or, if an informal meeting is held, within sixty days
of such meeting, the investigator shall file a written report of
the results of the investigator's investigation with the
superintendent. Within
fourteen business days thereafter, the superintendent shall
review the
report and determine whether there exists reasonable and
substantial evidence of a violation of section 4735.18 of the
Revised Code by the licensee. If the superintendent finds such
evidence exists, within seven business days of the
determination,
the superintendent shall notify the complainant and
licensee of the date
of a
hearing to be held by a hearing examiner pursuant to Chapter 119.
of the Revised Code within fifteen days but not prior to seven
days thereafter, except that either the superintendent or
the licensee may request an extension
of up to thirty business days for good cause shown. If the
superintendent finds that such evidence does not exist, within
five business days thereafter, the superintendent shall so notify
the complainant and licensee of the superintendent's
determination and the basis for
the determination. Within fifteen business days after the
superintendent notifies the complainant and licensee
that such evidence does not
exist, the complainant may file with the division a request that
the commissioners review the determination. If the complainant
files such request, the commissioners shall review the
determination at the next regularly scheduled meeting held at
least fifteen business days after the request is filed. The
commission shall hear the testimony of either the complainant
or the licensee at the
meeting upon the request of the complainant or licensee.
If the commissioners
affirm the determination of the superintendent, the
superintendent shall so notify the complainant and the licensee
within five business days thereafter. If the commissioners
reverse the determination of the superintendent, a hearing shall
be held and the complainant and licensee notified as
provided in this division.
After the date of a hearing to be held by a hearing examiner has been scheduled pursuant to division (D) of this section, but before the issuance of the report of findings of fact and conclusions of law pursuant to division (E) of this section, the superintendent upon receipt of additional evidence, may withdraw the notice of hearing. Withdrawal by the superintendent does not constitute evidence that the original notice of hearing was not substantially justified. Upon withdrawal of the notice of hearing, the superintendent shall notify the complainant and licensee of the superintendent's determination and basis for the determination. Within fifteen business days after the superintendent notifies the complainant and licensee, the complainant may file with the superintendent a request that the Ohio real estate commission review the determination. The commission shall review the request as provided in division (D) of this section. (E) Within twenty-five business days after the conclusion
of formal hearings, the hearing examiner shall file a report of
findings of fact and conclusions of law with the superintendent,
the commission, and the complainant and licensee. (F) The commissioners shall review the hearing examiner's
report at the next regularly scheduled
commission meeting held at least fifteen business days after
receipt of the hearing examiner's report. The commission shall
hear the testimony of the complainant or the licensee
upon request. If the complainant
is the Ohio civil rights commission, the complaint shall be
reviewed by the commissioners directly upon request. (G) The commission shall decide whether to impose disciplinary sanctions
upon a licensee for a violation of section 4735.18 of the Revised Code. The
commission shall decide within sixty days of the
filing of the hearing examiner's report or within sixty days of
the filing of an Ohio civil rights commission complaint. The
commission shall maintain a transcript of the proceedings and
issue a written opinion to the complainant and
licensee, citing its findings
and grounds for any action taken. The commission shall notify
the complainant and any other person who may have suffered
financial loss because of the licensee's violations, that the
complainant or other person may
sue for recovery under section 4735.12 of the Revised Code. (H) An investigation under this section is subject to
section 4735.32 of the Revised Code. (I) The commission may impose the following sanctions upon
a licensee for a violation of section 4735.18 of the Revised
Code: (1) Revoke a license issued under Chapter 4735. of the
Revised Code; (2) Suspend a license for a term set by the commission; (3) Impose a fine, not exceeding two thousand five hundred dollars per
violation; (4) Issue a public reprimand; (5) Require the completion of additional continuing education
course work. Any continuing education course work imposed pursuant
to this section shall not count toward the continuing education
requirements set forth in section 4735.14 of the Revised Code. All fines imposed pursuant to division (I)(3) of this section
shall be credited to the real estate recovery fund,
which is created in the
state treasury under section 4735.12 of the Revised
Code.
(J) All notices, written reports, and determinations issued pursuant to this section shall be mailed via certified mail, return receipt requested. If the certified notice is returned because of failure of delivery, or was refused or unclaimed, the notice, written reports, or determinations are deemed served if the superintendent sends the notice, written report, or determination via regular mail and obtains a certificate of mailing of the notice, written reports, or determination.
Sec. 4735.06. (A) Application for a license as a real
estate broker shall be made to the superintendent of
real estate
on forms furnished by the superintendent and
filed
with the
superintendent and shall be signed by the
applicant or
its members
or officers. Each application shall state the name
of the person
applying and the location of the place of business
for which the
license is desired, and give such other information
as the
superintendent requires in the form of application
prescribed by
the superintendent. If the applicant is a partnership, limited liability company,
limited
liability partnership, or association, the names
of all
the members also shall be stated, and, if the applicant is
a
corporation, the names of its president and of each of its
officers also shall be stated. The superintendent has the right
to reject the application of any partnership, association,
limited
liability company, limited liability partnership,
or
corporation
if the name proposed to be used by such partnership,
association,
limited liability company, limited liability partnership,
or
corporation is likely to mislead the public or if
the name is not
such as to distinguish it from the name of any
existing
partnership, association,
limited liability company, limited
liability partnership,
or corporation licensed under
this chapter,
unless there is filed with the application
the
written consent of
such existing partnership, association,
limited liability company,
limited liability partnership,
or
corporation, executed by a duly
authorized representative of it,
permitting the use of the name of
such existing partnership,
association,
limited liability company,
limited liability partnership,
or corporation. (B) A fee of sixty-nine dollars shall
accompany the
application for a real estate broker's license, which fee
includes the fee for the initial year of the licensing
period, if
a license
is issued. The application fee shall
be retained by
the superintendent if the applicant is admitted to
the examination
for the license or the examination requirement is
waived, but, if
an applicant is not so admitted and a waiver is
not involved,
one-half of the fee shall be retained by the
superintendent to
cover the expenses of processing the
application
and the other
one-half shall be returned to the
applicant. A fee
of sixty-nine
dollars shall
be charged by the
superintendent for
each successive
application made by an
applicant.
In the case of
issuance of a
three-year license, upon passing the examination, or
upon waiver
of the examination requirement, if the superintendent determines it is necessary, the applicant shall
submit an
additional fee of ninety-eight dollars, which fee
includes the fee
for the second and third year of the licensing
period, except that
the superintendent shall prorate that
additional fee determined by the superintendent based upon
the number of years remaining in a real
estate salesperson's
licensing period. (C) Four dollars of each
application fee for a real estate
broker's
license shall be credited to the real estate education
and
research fund, which is hereby created in the state treasury.
The Ohio real estate commission may use the fund in discharging
the duties prescribed in divisions (E), (F), and (G), and (H) of section
4735.03 of the Revised Code and shall use it in the advancement
of
education and research in real estate at any institution of
higher
education in the state, or in contracting with any such
institution or a trade organization for a particular research or educational project in
the field of real estate, or in advancing loans, not exceeding
eight hundred dollars, to applicants for salesperson
licenses, to
defray the costs of satisfying the educational requirements of
division (F) of section 4735.09 of the Revised Code. Such loans
shall be made according to rules established by the commission
under the procedures of Chapter 119. of the Revised Code, and
they
shall be repaid to the fund within three years of the time
they
are made. No more than ten thousand dollars shall be lent
from
the fund in any one year. The governor may appoint a representative from the
executive
branch to be a member ex officio of the commission for
the purpose
of advising on research requests or educational
projects. The
commission shall report to the general assembly on
the third
Tuesday after the third Monday in January of each year
setting
forth the total amount contained in the fund and the
amount of
each research grant that it has authorized and the
amount of each
research grant requested. A copy of all research
reports shall be
submitted to the state library of Ohio and the
library of the
legislative service commission. (D) If the superintendent, with the consent of the
commission, enters into an agreement with a national testing
service to administer the real estate broker's examination,
pursuant to division (A) of section 4735.07 of the Revised Code,
the superintendent may require an applicant to pay the testing
service's
examination fee directly to the testing service. If the
superintendent requires the payment of the examination fee
directly to the testing service, each applicant shall submit to
the
superintendent a processing fee in an amount determined by the
Ohio
real estate commission pursuant to division (A)(2) of
section
4735.10
of the Revised Code.
Sec. 4735.09. (A) Application for a license as a real
estate salesperson shall be made to the
superintendent of real
estate on forms furnished by the
superintendent and
signed
by the
applicant. The application shall be in the
form prescribed by the
superintendent and shall contain such
information as is required
by this chapter and the rules of the
Ohio real estate commission.
The application shall be
accompanied by the
recommendation of the
real estate broker with whom the
applicant is associated or with
whom the applicant
intends to be associated, certifying
that the
applicant is honest, truthful, and of good reputation,
has not
been convicted of a felony or a crime involving moral
turpitude,
and has not been finally adjudged by a court to have
violated any
municipal, state, or federal civil rights laws
relevant to the
protection of purchasers or sellers of real
estate, which
conviction or adjudication the applicant has not
disclosed to the
superintendent, and recommending that the
applicant be admitted to
the real estate salesperson examination. (B) A fee of forty-nine dollars shall
accompany the
application, which fee
includes the fee for the
initial year of
the licensing period, if a license
is
issued.
The application
fee shall be retained by the
superintendent if
the applicant is
admitted to the examination for
the license or
the examination
requirement is waived, but, if an
applicant is
not so admitted and
a waiver is not involved,
one-half of the fee
shall be retained by
the superintendent to
cover the expenses of
processing the
application and the other
one-half shall be
returned to the
applicant. A fee of
forty-nine
dollars shall be
charged by the
superintendent for each successive
application
made by the
applicant.
In the case of issuance of a
three-year license, upon
passing the examination, or upon waiver
of the examination
requirement, the applicant shall submit an
additional fee of
seventy-eight dollars, which fee includes the
fee for the second
and third year of the licensing period. Four
dollars of each
application fee shall
be credited
to the real
estate education and
research fund. (C) There shall be no limit placed on the number of times
an
applicant may retake the examination. (D) The superintendent, with the consent of the
commission,
may enter into an agreement with a recognized
national testing
service to administer the real estate
salesperson's examination
under the superintendent's
supervision and control, consistent
with
the requirements of this chapter as to the contents of the
examination. If the superintendent, with the consent of the commission,
enters into an agreement with a national testing service to
administer the real estate salesperson's examination,
the
superintendent may require an applicant to pay the testing
service's examination
fee directly to the testing service. If the
superintendent
requires the payment of the examination fee
directly to the
testing service, each applicant shall submit
to
the superintendent a processing fee in an amount determined by the
Ohio real estate commission pursuant to division (A)(1) of
section
4735.10 of the Revised Code. (E) The superintendent shall issue a real estate
salesperson's license when satisfied that the
applicant has
received
a passing score on
each portion of the
salesperson's
examination as determined by rule by the real estate
commission,
except that the superintendent may waive one or more of
the
requirements of this
section in the case of an applicant who is a
licensed
real estate salesperson in another state
pursuant to a
reciprocity agreement with the licensing authority of
the
state
from which the applicant holds a valid real estate salesperson's
license. (F) No applicant for a salesperson's license shall take
the
salesperson's
examination who has not established to the
satisfaction of the superintendent
that the applicant: (1) Is honest, truthful, and of good reputation; (2)(a) Has not been convicted of a felony or crime of
moral
turpitude or, if the applicant has been so convicted,
the
superintendent has disregarded the conviction because the
applicant has proven to the superintendent, by a preponderance of
the evidence, that the applicant's activities and employment
record since the
conviction show that the applicant is honest,
truthful, and
of good
reputation, and there is no basis in fact
for believing that the
applicant again will violate the laws
involved; (b) Has not been finally adjudged by a court to have
violated any municipal, state, or federal civil rights laws
relevant to the protection of purchasers or sellers of real
estate
or, if the applicant has been so adjudged, at least
two years have
passed since the court decision and the superintendent has
disregarded the adjudication because the applicant has proven, by
a preponderance of the evidence, that the applicant is
honest,
truthful, and of good reputation, and there is no basis in fact
for
believing
that the applicant again will violate the laws
involved. (3) Has not, during any period in which the applicant was
licensed under this chapter, violated any provision of, or any
rule
adopted pursuant to this chapter, or, if the applicant has
violated such provision or rule, has established to the
satisfaction of the
superintendent that the applicant will not
again violate such
provision or rule; (4) Is at least eighteen years of age; (5) If born after the year 1950, has a high school diploma
or its equivalent as recognized by the state department of
education; (6)(a) If beginning instruction
prior to August 1, 2001, has
successfully completed at an institution of
higher education all
of the following: (i) Thirty hours of classroom instruction in real estate
practice; (ii) Thirty hours of classroom instruction that includes
the
subjects of Ohio real estate law, municipal, state, and
federal
civil rights law, new case law on housing discrimination,
desegregation issues, and methods of eliminating the effects of
prior discrimination. If feasible, the classroom instruction in
Ohio real estate law shall be taught by a member of the faculty
of
an accredited law school. If feasible, the classroom
instruction
in municipal, state, and federal civil rights law,
new case law on
housing discrimination, desegregation issues, and
methods of
eliminating the effects of prior discrimination shall
be taught by
a staff member of the Ohio civil rights commission
who is
knowledgeable with respect to those subjects. The
requirements of
this division do not apply to an applicant who is
admitted to
practice before the supreme court. (iii) Thirty hours of classroom instruction in real estate
appraisal; (iv) Thirty hours of classroom instruction in real estate
finance. (b) Any person who has not been licensed as a real estate
salesperson or broker within a four-year period
immediately
preceding the person's current application for
the salesperson's
examination shall have successfully
completed the classroom
instruction
required by division (F)(6)(a) of this section within
a ten-year
period immediately preceding the person's current
application for the salesperson's examination. (7) If beginning instruction, as determined by the
superintendent,
on or after August 1, 2001, has successfully
completed at an institution of higher education all of the
following: (a) Forty hours of classroom instruction in real estate
practice; (b) Forty hours of classroom instruction that includes the
subjects of Ohio real estate law, municipal, state, and federal
civil rights law, new case law on housing discrimination,
desegregation
issues, and methods of
eliminating the effects of
prior discrimination. If feasible, the
classroom instruction in
Ohio real estate law shall be
taught by a member of the faculty of
an accredited law school. If
feasible, the classroom instruction
in municipal, state, and
federal civil rights law, new case law on
housing discrimination,
desegregation issues, and methods of
eliminating the effects of
prior discrimination shall be taught by
a staff member of the Ohio
civil rights commission who is
knowledgeable with respect to those subjects.
The requirements of
this division do not apply to an applicant who is admitted to
practice
before the supreme court. (c) Twenty hours of classroom instruction in real estate
appraisal; (d) Twenty hours of classroom instruction in real estate
finance. (G) No later than twelve months after the date of issue of a
real estate salesperson license to a licensee, the licensee shall
submit
proof satisfactory to the superintendent, on forms made
available by the
superintendent, of completion, at
an
institution
of higher education or any other institution approved
by the
commission, of ten hours of classroom instruction in real
estate
courses that cover current issues regarding consumers,
real estate
practice, ethics, and real estate law.
If proof of completion of the required
instruction is not
submitted within twelve months of the date a license is
issued
under this
section, the licensee's license is suspended
automatically without the
taking of any action by the
superintendent. The
superintendent
immediately shall notify the
broker with whom such
salesperson is associated of the suspension
of the
salesperson's license. A salesperson whose license
has
been suspended under this division shall have twelve
months after
the date of
the suspension of the salesperson's license to submit
proof of
successful completion of the
instruction required under
this division. No such license shall be reactivated
by the
superintendent until it is established, to the satisfaction of
the
superintendent, that the requirements of this division have
been
met and that the licensee is in compliance with this chapter. A
licensee's license is revoked automatically without the taking of
any action
by the superintendent when the licensee fails to submit
the required proof of
completion of the education
requirements
under division (G) of this section within twelve months
of the
date the license is suspended. (H) Examinations shall be administered with reasonable
accommodations in
accordance with
the requirements of the
"Americans with Disabilities
Act of 1990," 104 Stat. 327, 42
U.S.C. 12101. The contents of an
examination shall be
consistent
with the classroom instructional requirements of
division (F)(6)
or (7) of this section. An applicant who
has
completed the
classroom instructional requirements of division
(F)(6) or (7) of
this section at the time of
application shall
be
examined no later
than
twelve months after the
applicant is notified of the
applicant's admission to
the examination.
Sec. 4735.13. (A) The license of a real estate broker
shall
be prominently displayed in the office or place of business
of the
broker, and no license shall authorize the licensee to do
business
except from the location specified in it.
If the broker maintains
more than one place of business within the
state, the broker shall
apply for and procure a duplicate license for
each branch office
maintained by the broker. Each branch office shall be
in the
charge of a licensed broker or salesperson. The branch office
license shall be prominently displayed at the branch office
location. (B) The license of each real estate salesperson shall
be
mailed to and remain in the possession of the licensed broker
with
whom the salesperson is or is to be associated until
the licensee
places the license on inactive status or
until the salesperson
leaves the
brokerage or is terminated. The broker shall
keep each
salesperson's license in a way that it can, and shall
on request,
be
made immediately available for public inspection at the office
or
place of business of the broker. Except as provided in
division divisions
(G) and (H) of this section, immediately upon the salesperson's
leaving the
association or termination of the
association of a
real estate salesperson with the
broker, the broker shall return
the salesperson's
license to the superintendent of real estate. The failure of a broker to return the license of a real
estate salesperson or broker
who leaves or who is terminated, via certified mail return receipt requested, within three
business days of the receipt of a
written request from the
salesperson superintendent for the return of the license,
when a copy of the
request also is forwarded to the superintendent, is
prima-facie
evidence of misconduct under division
(A)(6) of
section 4735.18 of
the Revised Code. (C) Any licensee who is convicted of a felony or a crime
involving moral turpitude or of violating any federal, state, or
municipal civil rights law pertaining to discrimination in
housing, or any court that issues a finding of an unlawful
discriminatory practice pertaining to housing accommodations
described in division (H) of section 4112.02 of the Revised Code
or that convicts a licensee of a violation of any municipal civil
rights law pertaining to housing discrimination, shall notify the
superintendent of the conviction or finding within fifteen days.
If a licensee fails to notify the superintendent within the
required time, the superintendent immediately may revoke the
license of the licensee. Any court that convicts a licensee of a violation of any
municipal civil rights law pertaining to housing discrimination
also shall notify the Ohio civil rights commission within fifteen
days of the conviction. (D) In case of any change of business location, a broker
shall give notice in writing to the superintendent, whereupon
the
superintendent shall issue new licenses for the unexpired
period
without charge. If a broker changes a
business location
without
giving the required notice and without receiving new
licenses that
action is prima-facie evidence
of misconduct under division (A)(6)
of section
4735.18 of the Revised Code. (E) If a real estate broker desires to associate
with
another real estate broker in the capacity of a real estate
salesperson, the broker shall apply to
the superintendent to
deposit the broker's real estate
broker's license with the
superintendent and for the
issuance of a real estate salesperson's
license. The
application shall be made on a form prescribed by
the superintendent and
shall be accompanied by the recommendation
of the real estate
broker with whom the applicant intends to
become associated and a
fee of twenty-five dollars for the real
estate
salesperson's license. Four dollars of
the fee
shall be
credited to the real estate
education and research fund. If the
superintendent is satisfied
that the applicant is honest,
truthful, and of good reputation,
has not been convicted of a
felony or a crime involving moral
turpitude, and has not been
finally adjudged by a court to have
violated any municipal, state,
or federal civil rights laws
relevant to the protection of
purchasers or sellers of real
estate, and that the association of
the real estate broker and
the applicant will be in the public
interest, the superintendent
shall grant the application and issue
a real estate
salesperson's license to the applicant. Any license
so deposited with the superintendent
shall be subject to this
chapter. A broker who intends to deposit
the
broker's license
with the superintendent, as provided in this section,
shall give
written notice of this fact in a format prescribed by the
superintendent to all
salespersons associated with the broker when
applying to place the broker's license on deposit. (F) If a real estate broker desires to become a member or
officer of a partnership, association, limited liability company,
limited
liability partnership, or corporation that is or
intends
to become a licensed real estate broker, the broker
shall notify
the superintendent of the broker's intentions.
The notice of
intention shall be on a form prescribed by the superintendent
and
shall be
accompanied by a fee of twenty-five dollars. Four
dollars of the
fee shall be credited to the real estate education
and research
fund. No real estate broker who is a member or officer of a
partnership, association, limited liability company, limited
liability
partnership, or corporation that is a licensed real
estate broker shall perform any acts as a real estate broker
other
than as the agent of the partnership, association, limited
liability
company, limited liability partnership, or
corporation,
and such broker shall not have any real estate
salespersons
associated with the
broker. (G) If a real estate broker or salesperson enters the
armed
forces, the broker or salesperson may place
the broker's or
salesperson's license on deposit with the Ohio real
estate
commission. The licensee shall not be required to renew the
license
until the renewal
date that follows the date of
discharge
from the armed forces. Any
license deposited with the
commission
shall be
subject to this chapter. Any licensee whose
license is
on
deposit under this division and who fails to meet
the
continuing
education requirements of section 4735.141 of the
Revised Code
because the licensee is in the armed forces shall
satisfy the
commission that the licensee has complied with the
continuing
education requirements
within twelve months of the
licensee's discharge. The
commission shall
notify the licensee of
the licensee's obligations under
section 4735.141 of the Revised
Code at the time the licensee
applies for reactivation of the
licensee's license.
(H) If a licensed real estate salesperson submits an application to the superintendent to leave the association of one broker to associate with a different broker, the broker possessing the licensee's license need not return the salesperson's license to the superintendent. The superintendent may process the application regardless of whether the licensee's license is returned to the superintendent.
Sec. 4735.14. (A) Each license issued under this chapter,
shall be valid without further recommendation or examination
until
placed in an inactive status, revoked, suspended,
or such license
expires by operation of law. (B) Each licensed broker, brokerage, or salesperson shall
file, on or
before
the date the Ohio real estate commission has
adopted by rule for that licensee
in accordance with division
(A)(2)(f) of section 4735.10 of the Revised Code,
a notice of
renewal on a
form prescribed by the
superintendent of real estate.
The licensee shall indicate on the form
whether the licensee
wishes to maintain the licensee's license in an active or
inactive
status. The
notice of renewal shall
be mailed by the
superintendent
to the most current personal residence address of
each
broker or salesperson as filed with the superintendent by the
licensee
and the place of business address of the brokerage two
months prior to the filing deadline. (C) The license of any real estate broker,
brokerage, or
salesperson that fails
to file a notice of renewal on or
before
the filing deadline of each
ensuing year shall be
suspended
automatically without the taking of any action by
the
superintendent. A suspended license
may be reactivated within
twelve months of
the date of suspension, provided that the renewal
fee plus a penalty fee of fifty per
cent of the renewal fee is
paid to the superintendent. Failure to reactivate
the license as
provided in this division shall result in automatic
revocation of
the
license without the taking of any action by the
superintendent. No
person, partnership, association, corporation,
limited liability
company, or limited partnership shall engage in
any act or acts for which a
real estate license is required while
that entity's license is
placed in an inactive status, suspended,
or revoked. The
commission shall adopt rules in accordance with
Chapter 119. of
the Revised Code to
provide to licensees notice of
suspension or revocation or both. (D) Each licensee shall notify the commission of a change in
personal residence address. A licensee's failure to notify the
commission of
a change in personal residence address does not
negate the requirement to file the license renewal by the required
deadline established by the commission by rule under division
(A)(2)(f) of section 4735.10 of
the Revised Code. (E) The superintendent shall not renew a license if the
licensee
is not in
compliance with this chapter.
Sec. 4735.141. (A) Except as otherwise provided in this
division, each person licensed under section 4735.07 or 4735.09 of
the Revised
Code shall submit proof satisfactory to the
superintendent of real estate that
the licensee has satisfactorily
completed thirty hours of
continuing education, as prescribed by
the Ohio real estate commission
pursuant to section 4735.10 of the
Revised Code, on or before the licensee's
birthday occurring three
years after the licensee's date of initial licensure,
and on or
before the licensee's birthday every three years thereafter. Persons licensed
as real estate salespersons who subsequently
become licensed real
estate brokers shall continue to submit proof
of continuing
education in accordance with the time period
established in this section. The requirements of this section
shall not apply to
any
physically handicapped licensee as provided in division (E) of
this
section. Each licensee who is seventy years of age or older on
June
14, 1999, within a continuing education reporting period, shall submit, on or
before the licensee's
birthday
occurring three years after June 30, 1999,
and
on or before the
licensee's birthday every three years thereafter,
proof
satisfactory to the superintendent of real estate
that the
licensee has satisfactorily
completed a total of nine
classroom
hours of continuing education, including instruction in
Ohio real
estate law; recently enacted state
and federal laws affecting the
real estate industry; municipal,
state, and
federal civil rights
law; and canons of ethics for the real estate industry as
adopted
by the commission. The required proof of completion shall be submitted on or before the licensee's birthday that falls in the third year of that continuing education reporting period. A licensee who is seventy years of age or
older whose license is in an inactive status is exempt from the
continuing
education requirements specified in this section. The
commission
shall adopt
reasonable rules in
accordance with Chapter
119. of the Revised Code
to carry out the purposes of this
paragraph. A person providing any course of continuing education may
administer examinations to licensees for the purpose of
evaluating
the effectiveness of the course, but passage of an
examination by
a licensee shall not be a condition for successful
completion of
the continuing education requirements of this
section. (B) The continuing education requirements of this section
shall be completed in schools, seminars, and educational
institutions approved by the commission. Such approval shall be
given according to rules established by the commission under the
procedures of Chapter 119. of the Revised Code, and shall not be
limited to institutions providing two-year or four-year degrees.
Each school, seminar, or educational institution approved under
this division shall be open to all licensees on an equal basis. (C) If the requirements of this section are not met by a
licensee within the period specified, the licensee's license shall
be suspended automatically without the taking of any action by the
superintendent. The superintendent shall notify the licensee of
the license suspension. Any license so suspended shall
remain
suspended until it is reactivated by the
superintendent.
No such
license shall be reactivated until it is
established, to
the
satisfaction of the superintendent, that the requirements of
this
section have been met. If the requirements of this section
are
not met within twelve months from the date the
license
was
suspended, the license shall be revoked automatically without the
taking of any action by the superintendent. (D) If the license of a real estate broker is suspended
pursuant to division (C) of this section, the license of a
real
estate salesperson associated with that broker
correspondingly is
suspended pursuant to division
(H) of section 4735.20 of the
Revised Code. However, the suspended license of the associated
real estate salesperson shall be reactivated and no
fee
shall be
charged or collected for that reactivation if all
of
the
following
occur: (1) That broker subsequently submits proof to the
superintendent that the broker has complied with the requirements
of
this section and requests that the broker's license as a real
estate
broker be reactivated. (2) The superintendent then reactivates the broker's
license
as a
real estate broker. (3) The associated real estate salesperson intends to
continue to be associated with that broker, has complied with the
requirements of this section, and otherwise is in compliance with
this chapter. Any person whose license is reactivated pursuant to this
division
shall submit proof satisfactory to the superintendent
that the
person has completed thirty hours of continuing
education, as
prescribed by the Ohio real estate commission, on or
before the
third year following the licensee's birthday occurring
immediately after
reactivation. (E) Any licensee who is a physically handicapped licensee
at
any time during the last three months of the third year of the
licensee's
continuing education reporting period may receive an
extension of
time to submit proof to the superintendent that the
licensee has
satisfactorily completed the required thirty hours of
continuing
education. To receive an extension of time, the
licensee shall
submit a request to the division of real estate for
the extension
and proof satisfactory to the commission that the
licensee was a physically
handicapped licensee at some time during
the last three months of
the three-year reporting period. The
proof shall include, but is
not limited to, a signed statement by
the licensee's attending
physician describing the physical
disability, certifying that the
licensee's disability is of such a
nature as to prevent the licensee from
attending any instruction
lasting at least three hours
in duration, and stating the expected
duration of the physical
disability. The licensee shall request
the extension and provide
the physician's statement to the
division no later than one month
prior to the end of the
licensee's three-year continuing
education reporting period,
unless the physical disability did
not arise until the last month
of the three-year reporting
period, in which event the licensee
shall request the extension
and provide the physician's statement
as soon as practical after
the occurrence of the physical
disability. A licensee granted an
extension pursuant to this
division who is no longer a physically
handicapped licensee and
who submits proof of completion of the
continuing education during
the extension period, shall submit,
for future continuing
education reporting periods, proof of
completion of the continuing
education requirements according to
the schedule established in
division (A) of this section.
Sec. 4735.15.
(A) The fees for
reactivation or transfer of
a
license shall be as follows: (1) Reactivation or transfer of a broker's license
into
or
out of a
partnership, association,
limited liability company,
limited liability partnership,
or corporation or from one
partnership,
association,
limited liability company, limited
liability partnership,
or corporation to another partnership,
association,
limited liability company, limited liability
partnership,
or corporation, twenty-five dollars. An
application
for such
transfer shall be made to the superintendent of real
estate on
forms provided by the superintendent. (2) Reactivation or transfer of a license by a real
estate
salesperson,
twenty dollars. (B) The Except as may otherwise be specified pursuant to division (F) of this section, the fees for a branch office license, license renewal,
late filing, and foreign real estate dealer and salesperson
license are as follows per year for each year of a licensing
period: (1) Branch office license, eight dollars; (2) Renewal of a real
estate broker's license, forty-nine
dollars. If the
licensee is a
partnership, association,
limited
liability company, limited liability partnership,
or corporation,
the full broker's
renewal fee shall be required for each member of
such
partnership, association,
limited liability company, limited
liability partnership,
or corporation that is a real estate
broker. If the real estate
broker has not less than eleven nor
more than twenty real estate
salespersons associated with the
broker, an additional fee
of sixty-four dollars shall be assessed
to the
brokerage. For every additional ten real
estate
salespersons or fraction of that number, the
brokerage assessment
fee shall
be increased in
the amount of thirty-seven
dollars. (3) Renewal of
a real estate
salesperson's license,
thirty-nine dollars; (4) Renewal of a real
estate broker's or
salesperson's
license filed within twelve months after the
licensee's renewal
date, an
additional late filing penalty
of
fifty per cent of the
required fee; (5) Foreign real estate dealer's license and each
renewal
of the license, thirty dollars per salesperson
employed by
the
dealer, but not less than one hundred fifty dollars; (6) Foreign real estate salesperson's license and
each
renewal of the license, fifty dollars. (C) All fees collected under this section shall be paid to the
treasurer of state. Four dollars of each such fee
shall be
credited to the real estate education and research fund, except
that for fees that are assessed only once every three years,
twelve dollars of each triennial fee shall be credited to the real
estate education and research fund. (D) In all cases, the fee and any penalty shall accompany the
application for the license, license
transfer, or license
reactivation or shall accompany the filing
of the
renewal. (E) The commission may establish by rule reasonable fees for
services not otherwise established by this chapter.
(F) The commission may adopt rules that provide for a reduction in the fees established in divisions (B)(2) and (3) of this section.
Sec. 4735.181. (A) No real estate broker or salesperson licensed pursuant to this chapter shall fail to comply with sections 4735.55, 4735.56, and 4735.58 of the Revised Code or any rules adopted under those sections. (B) When the superintendent determines that a licensee has violated division (A) of this section, the superintendent may do either of the following: (1) Initiate disciplinary action under section 4735.051 of the
Revised Code, in accordance with Chapter 119. of
the Revised Code; (2) Personally, or by certified mail, serve a citation and impose sanctions in accordance with this section upon the
licensee. (C) Every citation served under this section shall give notice
to
the licensee of the alleged violation or violations charged and inform
the licensee of the opportunity to request a hearing in accordance with
Chapter 119. of the Revised Code. The citation
also shall
contain a statement of a fine of up to two hundred dollars per
violation. All fines collected pursuant to this section shall be credited to
the real estate recovery fund, created in the state treasury under section
4735.12 of the Revised Code. (D) If any licensee is cited three times under this section within twelve
consecutive months, the superintendent shall initiate disciplinary
action pursuant to section 4735.051 of the Revised Code for any subsequent violation that
occurs within the same
twelve-month period. If a licensee fails to request a hearing within thirty days after
the date of service of the citation, or the licensee and the
superintendent fail to reach an alternative agreement, the citation
shall become final. (E) Unless otherwise indicated, the licensee named in a final
citation under this section must meet all requirements contained in the final citation
within thirty days after the effective date of that citation. (F) The superintendent shall suspend automatically a licensee's
license if the licensee fails to comply with division (E) of
this section.
Sec. 4735.182. If a check or other draft instrument used to pay any fee required under this chapter is returned to the superintendent for insufficient funds, the superintendent shall notify the licensee that the check or other draft instrument was returned for insufficient funds and that the licensee's license will be suspended unless the licensee, within fifteen days after the mailing of the notice, submits the fee and a one-hundred-dollar fee to the superintendent. If the licensee does not submit both fees within that time period, or if any check or other draft instrument used to pay either of those fees is returned to the superintendent for insufficient funds, the license shall be suspended immediately without a hearing and the licensee shall cease activity as a licensee under this chapter.
Sec. 4735.53. (A) The types of agency relationships a licensee may establish
in a real estate transaction are limited to the following: (1) An agency relationship between the licensee and the seller; (2) An agency relationship between the licensee and
the purchaser; (3) A dual agency relationship between the licensee and
both the seller and the purchaser; (4) A subagency relationship between the licensee and the
client of another licensee. (B) When an agency relationship is formed between a
licensee and a client, both all of the following apply also are considered the agent of that client: (1) The brokerage with whom the licensee is affiliated and, except as provided in division (C) of section 4735.70 of the Revised Code, the management
level licensees in that brokerage who have direct supervisory duties over
licensees are also agents of that client; (2) Any licensee employed by, or affiliated with, the brokerage who
receives confidential information from the agent of the client is also an
agent of that client; (3) Any other licensee in the brokerage who assisted in establishing the agency relationship; (4) Any licensee in the brokerage who specifically is appointed with the client's consent to represent that client. (C) Except as otherwise provided in divisions (B)(1) and (2) to (4) of
this section, another licensee who is affiliated with the same
brokerage as the licensee is not an agent of that client unless
that licensee assisted in establishing the agency relationship
or is specifically appointed, with the client's consent, to
represent the client. (C)(D) A payment or the promise of a payment to a licensee does not determine
whether an agency relationship has been created between a licensee and a
client or between other licensees in the brokerage with which
the licensee is affiliated and that client.
Sec. 4735.56. (A) Each brokerage shall develop a written brokerage policy on agency to be given to prospective sellers and purchasers in accordance with divisions (C) and (D) of this section. (B) The brokerage policy on agency described in division (A) of this section shall include all of the following information: (1) An explanation of the permissible agency relationships available under section 4735.53 of the Revised Code and the duties that the agent owes the agent's client; (2) The brokerage's policy on representation of purchasers or sellers;
(3) Whether at some time during the agency relationship the
brokerage and its licensee may act as a dual agent, and the options and consequences for the
client if a dual agency situation arises including the right of the client to
terminate the agency relationship and seek representation from another source; (4) Whether at some time during the agency relationship, another
licensee affiliated with the same brokerage as the licensee may become the
exclusive agent for the other party in the transaction and whether each licensee will represent only the interests of that licensee's client; (5) The brokerage's policy on cooperation with other brokerages, including whether the brokerage offers compensation to other brokerages or will seek compensation from other brokerages; (6) That a brokerage that has a purchaser as a client represents the
purchaser's interests even though the seller's agent or the seller may
compensate that purchaser's brokerage; (7) That the signature of the purchaser or the seller indicates acknowledgement of receipt of the brokerage policy on agency. (C)
A licensee acting as a seller's agent shall provide the
seller with the brokerage policy on agency described in this section prior to marketing or showing the seller's real estate and shall obtain a signature from the seller acknowledging receipt unless the seller refuses to provide a signature. If the seller refuses to provide a signature, the licensee shall note this on the policy.
(D) A licensee working directly with a purchaser in a real estate
transaction, whether
as the purchaser's agent, the seller's agent, or the seller's
subagent, shall provide the purchaser with the brokerage policy on
agency described in this section and obtain a signature from the purchaser acknowledging receipt of the policy unless the purchaser refuses to provide a signature. If the purchaser refuses to provide a signature, the licensee shall note this on the policy. Except as provided in division (E) of this section, the licensee shall provide the brokerage policy on agency to a purchaser
prior to the earliest of the following actions of the licensee: (1) Initiating a prequalification evaluation to determine
whether the purchaser has the financial ability to purchase or
lease a particular real estate property; (2) Requesting specific financial information from
the purchaser to determine the purchaser's ability to purchase
or finance real estate in a particular price range; (3) Showing the real estate to the purchaser other
than at an open house; (4) Discussing, with the purchaser, the making of an offer to
purchase or lease real estate; (5) Submitting an offer to purchase or lease real estate on
behalf of the purchaser. (E) If the earliest event described in division
(D) of this section is by
telephone or electronic mail, the licensee shall disclose by that same medium the
nature of the agency relationship that the licensee has with
both the seller and the purchaser. The licensee shall provide the purchaser with the brokerage policy on agency described in this section at
the first meeting with the purchaser following this disclosure of the agency
relationship. (F) A licensee acting as a seller's agent is not required
to provide a purchaser with the brokerage policy on agency described in this section except in the case of an event described in division
(D) of this section. (G) The requirements of this section regarding provision of a brokerage policy on agency do not apply in any of the
following situations: (1) The rental or leasing of residential premises as defined in
section 5321.01 of the Revised Code, if the rental or lease
agreement can be performed in eighteen months or less; (2) The referral of a prospective purchaser or seller to another licensee; (3) Transactions involving the sale, lease, or exchange
of foreign real estate as defined in division (E) of
section 4735.01 of the
Revised Code; (4) Transactions involving the sale of a cemetery lot or a
cemetery interment right.
Sec. 4735.57. (A) The superintendent of real estate, with the
approval of the Ohio real estate commission, shall establish by rule an
agency disclosure statement. The agency disclosure
statement shall
contain a place for the licensee and the parties to the transaction to sign
and date the statement and shall contain sections for the disclosure or
explanation of all of the following: (1) Unless confidential, the names of all the parties in the transaction;
(2) The address of the real estate being sold or leased;
(3) The name of the licensee or licensees and the brokerage with which each licensee is affiliated; (4) The party that each licensee in the named brokerage represents in the transaction; (5) If a licensee representing a purchaser of real estate and a licensee representing the seller of that real estate are affiliated with the same brokerage, whether the two licensees are acting as dual agents or are individually representing the purchaser and seller separately; (6) If only one licensee is involved in the transaction, whether that licensee is a dual agent or represents only one party to the transaction; (7) If both the purchaser and the seller are represented by licensees affiliated with the same brokerage, that the brokerage is a dual agent; (8)
That the signature of the client indicates the client's informed consent to the agency relationship and that if the client does not understand the agency disclosure statement, the client should consult an attorney. (B) The agency disclosure statement shall specify the duties of a licensee acting as a dual agent and shall contain sections disclosing all of the following: (1) An explanation of the nature of a dual agency relationship,
including a statement that in serving as a dual agent, licensees in the
brokerage represent two clients
whose interests are, or at times could be, different or adverse; (2) That as a result of the dual agency relationship, the dual
agent may not be
able to advocate on behalf of
the client to the same extent the agent may have if the agent
represented only one client; (3) A description of the duties the brokerage and its affiliated
licensees and employees owe to each client, including the duty of
confidentiality; (4) That neither the
brokerage nor its affiliated licensees have any material
relationship with either client other than incidental to the
transaction, or if the brokerage or its affiliated licensees
have a material relationship, a disclosure of the nature of the
relationship. For purposes of this division, "material
relationship" means any actually known personal, familial, or
business relationship between the brokerage or an affiliated
licensee and a client that could impair the ability of the
brokerage or affiliated licensee to exercise lawful and
independent judgment relative to another client. (5) That as a dual agent, the brokerage cannot engage in conduct
that is contrary to the interests or instructions of one party or act in a
biased manner on behalf of one party; (6) A section specifying the source of compensation to the real estate
broker; (7) That the client does not have to consent to the dual agency relationship,
and the
options available to the client for representation in the
transaction if the client does not consent, including the right of the client
to terminate the agency relationship and seek representation from another
source;
(8) That the consent to the dual agency relationship by the client has been given voluntarily, that the signature indicates informed consent, and that the duties of a licensee acting as a dual agent disclosed to the client pursuant to division (B) of this section have been read and understood.
Sec. 4735.58. (A) A licensee acting as a seller's agent shall provide the
seller an agency disclosure statement described in section 4735.57 of the
Revised Code prior to marketing or showing the seller's property. (B)(1) A licensee working directly with a purchaser in a real estate
transaction, whether
as the purchaser's agent, the seller's agent, or the seller's
subagent, shall provide the purchaser with an
agency disclosure statement described in section 4735.57 of the Revised Code
prior to the earliest of the following events:
(a) Initiating a prequalification evaluation to determine
whether the purchaser has the financial ability to purchase or
lease the particular property;
(b) Requesting specific financial information from
the purchaser to determine the purchaser's ability to purchase
or finance real estate in a particular price range;
(c) Showing the property to the purchaser other
than at an open house;
(d) Discussing, with the purchaser, the making of an offer to
purchase real property;
(e) Submitting an offer to purchase or lease real property on
behalf of the purchaser.
(2) If the earliest event described in division
(B)(1) of this section is by
telephone, the licensee shall make a verbal disclosure of the
nature of the agency relationship that the licensee has with
both the seller and the purchaser. The licensee shall obtain
the purchaser's signature and the date on an agency disclosure statement at
the first meeting with the purchaser following verbal disclosure of the agency
relationship.
(3) A licensee acting as a seller's agent is not required
to provide a purchaser with an agency disclosure statement
except in the case of an event described in division
(B)(1) of this section.
(C) A licensee who is a
purchaser's agent or a seller's subagent working with a
purchaser shall present the agency disclosure statement described in section 4735.57 of the Revised Code to the purchaser and
request the purchaser to sign and date the statement pursuant to division
(B) of this section no later than the preparation of an offer to purchase or lease, or a written request for a proposal to lease. The
licensee shall deliver the statement signed by the purchaser to the seller's agent, or
to the seller if the seller is not represented by an agent,
prior. Prior to presenting the seller with either a written offer to
purchase or lease, or a written request for a proposal to lease, the seller's agent, or the purchaser's agent if the seller is not represented by an agent, shall present the agency disclosure statement to the seller and request the seller to sign and date the statement.
(D)(B) A licensee selling
property at auction shall, prior to the auction, verbally
disclose to the audience that the licensee represents the seller
in the real estate transaction. The licensee shall
provide the agency disclosure statement described in section 4735.57 of the
Revised Code to the successful bidder prior to the bidder's signing a purchase
contract.
(E)(C) Evidence that a licensee has failed to comply with this section
constitutes prima-facie evidence of misconduct in violation of division (A)(6)
of section 4735.18 of the Revised Code.
(D) The disclosure requirements of this section do not apply in any of the
following situations: (1) The rental or leasing of residential premises as defined in
section 5321.01 of the Revised Code, if the rental or lease
agreement can be performed in eighteen months or less; (2) The referral of a prospective purchaser or seller to another licensee; (3) Transactions involving the sale, lease, or exchange
of foreign real estate as defined in division (E) of
section 4735.01 of the
Revised Code; (4) Transactions involving the sale of a cemetery lot or a
cemetery interment right. (E) The licensee is obligated to perform all duties imposed on a real estate agent at common
law except to the extent the duties are inconsistent with the duties
prescribed in this chapter or are otherwise modified by agreement.
Sec. 4735.70. The following are dual
agents under this chapter: (A) A licensee who represents both the purchaser and the seller
as clients in the same real estate transaction; (B) A brokerage that represents both the purchaser and the seller
as clients in the same real estate transaction; (C) A management level licensee who represents a client in an
in-company transaction. If there is more than one management level licensee affiliated with the brokerage and either of the following applies, the management level licensee is not a dual agent: (1) The management level licensee personally represents either the seller or the purchaser in a transaction, in which case the management level licensee will represent only the interests of that licensee's client. (2) The management level licensee is the purchaser or seller in a transaction and will represent only that licensee's interest.
Sec. 4735.71. (A) Except as provided in
division (C) of this section,
no No licensee or brokerage shall participate in a dual agency
relationship described in section 4735.70 of the Revised
Code unless both the seller and
the purchaser in the transaction have full knowledge of the dual
representation and consent in writing to the dual representation
on the dual agency disclosure statement described in section 4735.73
4735.57 of the Revised Code. Before a licensee obtains the consent of any party to a
dual agency relationship, the licensee shall disclose to both the purchaser
and the seller all relevant information necessary to enable
each party to make an informed decision as to whether to consent to the dual
agency relationship. If, after consent is obtained, there is a material
change in the information disclosed to the purchaser and the seller, the licensee
shall disclose such the change of information to the purchaser and the seller and give
them an opportunity to revoke their consent. (B) The brokerage shall make the dual agency disclosure to both
the seller and purchaser as soon as practicable after it is determined that
such dual agency may exist. The parties to the real estate transaction shall
sign and date the dual agency disclosure statement in a timely manner after it
is determined that a dual agency relationship exists. The form
must be signed and dated prior to the signing of any offer to purchase or
lease the real estate that is the subject of the transaction. (C) A brokerage that is a dual agent is not required to obtain
the consent of the seller and the purchaser on the dual agency disclosure
statement described in section 4735.73 of the Revised Code if the seller and
purchaser are each represented by a different, nonmanagement level licensee
who is affiliated with the same brokerage and all of the following conditions
are met:
(1) The licensees made disclosures as required under sections 4735.56 and
4735.58 of the Revised Code;
(2) The potential for the formation of the dual agency
was disclosed to all parties in the agency disclosure statement
pursuant to section 4735.57 of the Revised Code;
(3) Each party consents by initialing, in a timely manner after it is
determined that a dual agency relationship exists in the
transaction, the section in the agency disclosure statement that
discloses the potential for a dual agency relationship.
(D) No brokerage shall participate in a dual agency relationship
described in division (C) of section 4735.70 of the Revised Code, unless each
of the following conditions is met:
(1) The brokerage has established a procedure under section 4735.54 of the
Revised Code under which licensees,
including management level licensees, who represent one client will not have
access to and will not obtain confidential information concerning another
client of the
brokerage involved in the dual agency transaction. (2) The Each licensee who is an agent for each client in the dual agency
relationship fulfills the licensee's duties exclusively to that the licensee's client.
Sec. 4735.72. (A) The brokerage and management level
licensees in a brokerage in which there is a dual agency
relationship described in divisions (A) and (B) of section
4735.70 of the Revised Code shall do each of the
following: (1) Objectively supervise the affiliated licensees in the
fulfillment of their duties and obligations to their respective
clients; (2) Refrain from advocating or negotiating on behalf of
either the seller or the purchaser; (3) Refrain from disclosing to any other employee of the brokerage or any
party or
client, any confidential information of a client of which the brokerage or
management level licensee becomes aware and from utilizing or allowing to be
utilized for the benefit of another client, any confidential information
obtained from a client. (B) When two nonmanagement level licensees affiliated with the
same brokerage represent separate clients in the same transaction, each
affiliated licensee shall do both of the following: (1) Serve as the agent of only the party in the
transaction the licensee agreed to represent; (2) Fulfill the duties owed to the respective client as
set forth in this chapter and as agreed in the agency agreement. (C)(1) In all cases, a management level licensee shall keep information of the client or brokerage confidential. (2) Nothing in this
section prohibits the brokerage or management level licensees in the brokerage
from providing factual, nonconfidential information that presents or
suggests objective options or solutions, or assisting the
parties in an unbiased manner to negotiate or fulfill the terms of the
purchase contract or lease, provided that confidential information of a client
is not utilized in any manner in formulating such suggestions or providing
such this assistance. (D) No cause of action
shall arise on behalf of any person against a licensee in a dual
agency relationship for making disclosures to the parties that
are permitted or required by this chapter, or that have been
made on the dual agency disclosure statement. Making permitted
disclosures does not terminate any agency relationship between a
licensee and a client. (E)(1) If a brokerage determines that confidential information of
one client
in a dual agency relationship has become known to any licensee employed by or
affiliated with the brokerage who is representing the other client in the dual
agency relationship, as a result of the failure of the brokerage, its
licensees, or its employees to maintain such confidentiality, the brokerage
shall do both of the following: (a) Notify both clients of such the fact immediately in writing; (b) Offer to resign representation of both clients. (2) If either client elects to accept such the resignation, the brokerage
shall not be entitled to any compensation from that client. If either
client does not accept such the resignation, the brokerage may continue to
represent that client. (3) A licensee who obtains confidential information concerning another
client of the brokerage in a dual agency relationship shall not, under any
circumstances, disclose that information to
or use that information for the benefit of the licensee's client. (F) A client of a brokerage who is involved in a dual agency
relationship
may bring an individual action against a brokerage and any licensee who has
failed to comply with the procedure described in division (D)(1)(B)(1) of
section 4735.71 of the Revised Code to recover actual damages and to rescind an agency
agreement with the brokerage.
Section 2. That existing sections 4735.03, 4735.04, 4735.05, 4735.051, 4735.06, 4735.09, 4735.13, 4735.14, 4735.141, 4735.15, 4735.53, 4735.58, 4735.70, 4735.71, and 4735.72 and sections 4735.56, 4735.57, and 4735.73 of the Revised Code are hereby repealed.
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