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(126th General Assembly)
(Amended Substitute House Bill Number 150)
AN ACT
To amend sections 4735.01, 4735.16, 4735.18, 4735.51, 4735.63, 4735.65, 4737.10, 4737.99, and 4738.16 and to enact sections 4735.621 and 4735.75 of the Revised Code to impose new requirements on licensed junk yard owners, to require scrap metal processors to maintain specified records regarding canceled motor vehicle titles, to add definitions to real estate broker law and to expand duties of licensees.
Be it enacted by the General Assembly of the State of Ohio:
SECTION 1. That sections 4735.01, 4735.16, 4735.18, 4735.51, 4735.63, 4735.65, 4737.10, 4737.99, and 4738.16 be amended and sections 4735.621 and 4735.75 of the Revised Code be enacted to read as follows:
Sec. 4735.01. As used in this chapter: (A) "Real estate broker" includes any person, partnership,
association, limited liability company, limited liability
partnership, or corporation, foreign or domestic, who for
another,
whether pursuant to a power of attorney or otherwise,
and who for
a fee, commission, or other valuable consideration,
or with the
intention, or in the expectation, or upon the promise
of receiving
or collecting a fee, commission, or other valuable
consideration
does any of the following: (1) Sells, exchanges, purchases, rents, or leases, or
negotiates the sale, exchange, purchase, rental, or leasing of
any
real estate; (2) Offers, attempts, or agrees to negotiate the sale,
exchange, purchase, rental, or leasing of any real estate; (3) Lists, or offers, attempts, or agrees to list, or
auctions, or offers, attempts, or agrees to auction, any real
estate; (4) Buys or offers to buy, sells or offers to sell, or
otherwise deals in options on real estate; (5) Operates, manages, or rents, or offers or attempts to
operate, manage, or rent, other than as custodian, caretaker, or
janitor, any building or portions of buildings to the public as
tenants; (6) Advertises or holds self out as engaged in the
business
of selling, exchanging, purchasing, renting, or leasing
real
estate; (7) Directs or assists in the procuring of prospects or
the
negotiation of any transaction, other than mortgage
financing,
which does or is calculated to result in the sale,
exchange,
leasing, or renting of any real estate; (8) Is engaged in the business of charging an advance fee
or
contracting for collection of a fee in connection with any
contract whereby the broker undertakes primarily to promote
the
sale,
exchange, purchase, rental, or leasing of real estate
through its
listing in a publication issued primarily for such
purpose, or
for referral of information concerning such real
estate to
brokers, or both, except that this division does not
apply to a
publisher of listings or compilations of sales of real
estate by
their owners; (9) Collects rental information for purposes of referring
prospective tenants to rental units or locations of such units
and
charges the prospective tenants a fee. (B) "Real estate" includes leaseholds as well as any and
every interest or estate in land situated in this state, whether
corporeal or incorporeal, whether freehold or nonfreehold, and
the
improvements on the land, but does not include cemetery
interment
rights. (C) "Real estate salesperson" means any person associated
with a licensed real estate broker to do or to deal in any acts
or
transactions set out or comprehended by the definition of a
real
estate broker, for compensation or otherwise. (D) "Institution of higher education" means either of the
following: (1) A nonprofit institution as defined in section 1713.01
of
the Revised Code that actually awards, rather than intends to
award, degrees for fulfilling requirements of academic work
beyond
high school; (2) An institution operated for profit that otherwise
qualifies under the definition of an institution in section
1713.01 of the Revised Code and that actually awards, rather than
intends to award, degrees for fulfilling requirements of academic
work beyond high school. (E) "Foreign real estate" means real estate not situated
in
this state and any interest in real estate not situated in
this
state. (F) "Foreign real estate dealer" includes any person,
partnership, association, limited liability company, limited
liability
partnership, or corporation, foreign or domestic,
who
for another, whether pursuant to a power of attorney or
otherwise,
and who for a fee, commission, or other valuable
consideration, or
with the intention, or in the expectation, or
upon the promise of
receiving or collecting a fee, commission, or
other valuable
consideration, does or deals in any act or
transaction specified
or comprehended in division (A) of this
section with respect to
foreign real estate. (G) "Foreign real estate salesperson" means any
person
associated with a licensed foreign real estate dealer to do or
deal in any act or transaction specified or comprehended in
division (A) of this section with respect to foreign real estate,
for compensation or otherwise. (H) Any person, partnership, association, limited liability
company,
limited liability partnership, or corporation,
who, for
another, in consideration of compensation, by fee,
commission,
salary, or otherwise, or with the intention, in the
expectation,
or upon the promise of receiving or collecting a
fee, does, or
offers, attempts, or agrees to engage in, any
single act or
transaction contained in the definition of a real
estate broker,
whether an act is an
incidental part of a transaction, or the
entire transaction,
shall be constituted a real estate broker or
real estate
salesperson under this chapter. (I) The terms "real estate broker," "real estate
salesperson," "foreign real estate dealer," and
"foreign real
estate salesperson" do not include a
person, partnership,
association, limited liability company, limited
liability
partnership, or
corporation, or the regular employees thereof, who
perform any
of the acts or transactions specified or comprehended
in division
(A) of this section, whether or not for, or with the
intention,
in expectation, or upon the promise of receiving or
collecting a
fee, commission, or other valuable consideration: (1) With reference to real estate situated in this state
or
any interest in it owned by such person, partnership,
association,
limited liability company, limited liability
partnership, or
corporation, or acquired on its own account in
the regular course
of, or as an incident to the management of the
property and the
investment in it; (2) As receiver or trustee in bankruptcy, as guardian,
executor, administrator, trustee, assignee, commissioner, or any
person doing the things mentioned in this section, under
authority
or appointment of, or incident to a proceeding in, any
court, or
as a public officer, or as executor, trustee, or other
bona fide
fiduciary under any trust agreement, deed of trust,
will, or other
instrument creating a like bona fide fiduciary
obligation; (3) As a public officer while performing the officer's
official duties; (4) As an attorney at law in the performance of the
attorney's duties; (5) As a person who engages in the brokering of the sale of
business assets, not including the negotiation of the sale, lease,
exchange, or assignment of any interest in real estate; (6) As a person who
engages in the sale of
manufactured
homes
as
defined in division (C)(4) of section
3781.06 of the
Revised
Code, or of mobile homes as defined in
division (O) of
section
4501.01 of the Revised Code, provided the
sale does not
include
the negotiation,
sale, lease, exchange, or
assignment of
any
interest in real estate; (7) As a person who engages in the sale of commercial real
estate pursuant to the
requirements of section 4735.022 of the
Revised Code. (J) "Physically handicapped licensee" means a person
licensed pursuant to this chapter who is under a severe physical
disability which is of such a nature as to prevent the person
from
being able to attend any instruction lasting at
least three hours
in duration. (K) "Division of real
estate" may be used interchangeably
with, and for all purposes
has the same meaning as, "division of
real estate and
professional licensing." (L) "Superintendent"
or "superintendent of real estate"
means the superintendent of
the division of real estate and
professional licensing of this
state. Whenever the division or
superintendent of real estate
is referred to or designated in any
statute, rule, contract, or
other document, the reference or
designation shall be deemed to
refer to the division or
superintendent of real estate and
professional licensing, as the
case may be. (M) "Inactive license" means the license status in which a
salesperson's license is in the possession of the division,
renewed
as required under this chapter
or rules adopted
under this
chapter, and not
associated
with a real estate broker. (N) "Broker's license on deposit" means the license status
in
which a broker's license is in the possession of the division
of
real estate and professional licensing and
renewed as
required
under this chapter
or rules adopted under this chapter. (O) "Suspended license" means the license status that
prohibits a
licensee from providing services that require a
license under this
chapter for a specified interval of time. (P) "Reactivate" means the process prescribed by the
superintendent of real estate and professional licensing to remove
a license
from an inactive, suspended, or broker's license on
deposit status to allow a licensee to provide services that
require a license under this chapter. (Q) "Revoked" means the license status in which the license
is
void and not eligible for reactivation.
(R) "Commercial real estate" means any parcel of
real estate
in this state other than real estate
containing one to four
residential units. "Commercial real
estate" does not include
single-family residential units such as
condominiums, townhouses,
manufactured homes, or homes in a
subdivision when sold, leased,
or otherwise conveyed on a
unit-by-unit basis, even when those
units are a part of a larger
building or parcel of real estate
containing more than four
residential units. (S) "Out-of-state commercial broker" includes any person,
partnership, association, limited liability company, limited
liability partnership, or corporation that is licensed to do
business as a real estate broker in a jurisdiction other than
Ohio. (T) "Out-of-state commercial salesperson" includes any
person affiliated with an out-of-state commercial broker who is
not licensed as a real estate salesperson in Ohio. (U) "Exclusive right to sell or lease listing agreement" means an agency agreement between a seller and broker that meets the requirements of section 4735.55 of the Revised Code and does both of the following:
(1) Grants the broker the exclusive right to represent the seller in the sale or lease of the seller's property;
(2) Provides the broker will be compensated if the broker, the seller, or any other person or entity produces a purchaser or tenant in accordance with the terms specified in the listing agreement or if the property is sold or leased during the term of the listing agreement to anyone other than to specifically exempted persons or entities.
(V) "Exclusive agency agreement" means an agency agreement between a seller and broker that meets the requirements of section 4735.55 of the Revised Code and does both of the following:
(1) Grants the broker the exclusive right to represent the seller in the sale or lease of the seller's property;
(2) Provides the broker will be compensated if the broker or any other person or entity produces a purchaser or tenant in accordance with the terms specified in the listing agreement or if the property is sold or leased during the term of the listing agreement, unless the property is sold or leased solely through the efforts of the seller or to the specifically exempted persons or entities. (W) "Exclusive purchaser agency agreement" means an agency agreement between a purchaser and broker that meets the requirements of section 4735.55 of the Revised Code and does both of the following: (1) Grants the broker the exclusive right to represent the purchaser in the purchase or lease of property;
(2) Provides the broker will be compensated in accordance with the terms specified in the exclusive agency agreement or if a property is purchased or leased by the purchaser during the term of the agency agreement unless the property is specifically exempted in the agency agreement.
The agreement may authorize the broker to receive compensation from the seller or the seller's agent and may provide that the purchaser is not obligated to compensate the broker if the property is purchased or leased solely through the efforts of the purchaser. (X) "Seller" means a party in a real estate transaction who is the potential transferor of property. "Seller" includes an owner of property who is seeking to sell the property and a landlord who is seeking to rent or lease property to another person.
Sec. 4735.16. (A) Every real estate broker licensed under
this chapter shall have and maintain a definite place of business
in this state and shall erect or maintain a sign on the premises
plainly stating that the licensee is a real estate broker. If
the real estate broker maintains one or more branch offices, the
real estate broker shall erect or maintain a sign at each branch office
plainly stating that the licensee is a real estate broker. (B)(1) Any licensed real estate broker or salesperson who
advertises to buy, sell, exchange, or lease real estate, or to engage in
any act regulated by this chapter, including, but not limited to,
any licensed real estate broker or
salesperson who advertises to sell, exchange, or lease
real estate
that the licensee owns, shall be identified in the
advertisement by name
and by indicating that the licensee is a real estate broker
or real estate
salesperson. Except a real estate
salesperson who advertises the sale,
exchange, or lease of real estate that the salesperson owns
and that is not listed for sale, exchange, or lease with a real estate broker,
any real estate salesperson who advertises, as provided
in this
section, also shall indicate in the advertisement the name
of the
broker under whom the salesperson is licensed and the fact
that the salesperson's broker is
a real estate broker. The name of the broker shall be displayed
in equal prominence with the name of the salesperson in
the advertisement. (2) A real estate broker who is representing a seller under an exclusive right to sell or lease listing agreement shall not advertise such property to the public as "for sale by owner" or otherwise mislead the public to believe that the seller is not represented by a real estate broker. (3) If any real estate broker or real estate
salesperson
advertises in a manner other than as provided in this section or the rules
adopted under this section, that
advertisement is prima- facie evidence of a violation
under division
(A)(21) of section 4735.18 of the
Revised Code. When the superintendent determines that prima-facie evidence of a violation
of division (A)(21) of
section 4735.18 of the Revised Code or any of the rules
adopted thereunder exists, the superintendent may do either of the
following: (a) Initiate disciplinary action under section 4735.051 of the
Revised Code for
a violation of division
(A)(21) of section 4735.18 of the
Revised Code, in accordance with Chapter 119. of
the Revised Code; (b) Personally, or by certified mail, serve a citation upon the
licensee. (C)(1) 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 two hundred dollars per
violation, not to exceed two thousand five hundred dollars per
citation. 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. (2) If any licensee is cited three times 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. (3) If a licensee fails to request a hearing within thirty days of
the date of service of the citation, or the licensee and the
superintendent fail to reach an alternative agreement, the citation
shall become final. (4) Unless otherwise indicated, the licensee named in a final
citation must meet all requirements contained in the final citation
within thirty days of the effective date of that citation. (5) The superintendent shall suspend automatically a licensee's
license if the licensee fails to comply with division (C)(4) of
this section. (D) A real estate broker or salesperson obtaining the
signature of a party to a listing or other agreement involved in
a real estate transaction shall furnish a copy of the listing or
other agreement to the party immediately after obtaining the
party's signature. Every broker's office shall prominently display in
the same immediate area as licenses are displayed a statement
that it is illegal to discriminate against any person because of
race, color, religion, sex, familial status as defined in
section 4112.01 of the Revised Code, national origin,
disability
as defined in that section, or ancestry in the sale or rental of
housing or residential lots, in advertising the sale or rental of
housing, in the financing of housing, or in the provision of real
estate brokerage services and that blockbusting also is illegal.
The statement shall bear the United States department of housing
and urban development equal housing logo, shall contain
the information that the broker and the broker's
salespersons are licensed by the division of real estate and that the
division can assist with any consumer complaints or inquiries, and shall
explain the
provisions of section 4735.12 of the Revised Code. The statement
shall provide the division's address and telephone number. The
Ohio real estate commission shall provide by rule for the wording
and size of the statement. The pamphlet required under section
4735.03 of the Revised Code shall contain the same statement that
is required on the statement displayed as provided in this
section and shall be made available by real estate brokers and
salespersons to their clients. The commission shall
provide the wording and size of the pamphlet.
Sec. 4735.18. (A) Subject to section 4735.32 of the
Revised
Code, the superintendent of real estate, upon the superintendent's
own
motion, may investigate the conduct of any licensee. Subject
to
section 4735.32 of the Revised Code, the Ohio real estate
commission shall,
pursuant to section 4735.051 of the Revised
Code, impose disciplinary
sanctions upon any licensee who, whether
or not acting in the licensee's
capacity as a real estate broker
or salesperson, or in handling the licensee's
own property, is
found to have been convicted of
a felony or a crime of moral
turpitude, and shall, pursuant to
section 4735.051 of the Revised
Code, impose disciplinary sanctions upon any
licensee who, in the
licensee's capacity as a real
estate broker or salesperson, or in
handling the licensee's own property, is
found guilty of: (1) Knowingly making any misrepresentation; (2) Making any false promises with intent to influence,
persuade, or induce; (3) A continued course of misrepresentation or the making
of
false promises through agents, salespersons, advertising, or
otherwise; (4) Acting for more than one party in a transaction
except
as permitted by and in compliance with section 4735.71 of the
Revised Code; (5) Failure within a reasonable time to account for or to
remit any money coming into the licensee's possession which
belongs
to others; (6) Dishonest or illegal dealing, gross negligence,
incompetency, or misconduct; (7)(a) By final adjudication by a court, a violation of
any
municipal or federal civil rights law relevant to the
protection
of purchasers or sellers of real estate or, by final
adjudication
by a court, any unlawful discriminatory practice
pertaining to the
purchase or sale of real estate prohibited by
Chapter 4112. of the
Revised Code, provided that such violation
arose out of a
situation wherein parties were engaged in bona
fide efforts to
purchase, sell, or lease real estate, in the licensee's
practice
as a licensed real estate broker or salesperson; (b) A second or subsequent violation of any unlawful
discriminatory practice pertaining to the purchase or sale of
real
estate prohibited by Chapter 4112. of the Revised Code or
any
second or subsequent violation of municipal or federal civil
rights laws relevant to purchasing or selling real estate whether
or not there has been a final adjudication by a court, provided
that such violation arose out of a situation wherein parties were
engaged in bona fide efforts to purchase, sell, or lease real
estate. For any second offense under this division, the
commission shall suspend for a minimum of two months or revoke
the
license of the broker or salesperson. For any subsequent
offense,
the commission shall revoke the license of the broker or
salesperson. (8) Procuring a license under this chapter, for the licensee
or any
salesperson by fraud, misrepresentation, or deceit; (9) Having violated or failed to comply with any provision
of sections
4735.51 to 4735.74 of the Revised Code or having
willfully disregarded or
violated any other provisions of this
chapter; (10) As a real estate broker, having demanded, without
reasonable cause,
other
than
from a broker licensed under this
chapter, a commission to which
the licensee is not entitled, or,
as a real estate
salesperson, having demanded,
without
reasonable
cause, a commission to which the licensee is not entitled; (11)
Except as permitted under section 4735.20 of the
Revised Code, having paid commissions or fees to, or divided
commissions or fees with, anyone not licensed as a real estate
broker or salesperson
under this chapter or anyone not operating
as an out-of-state commercial real estate broker or salesperson
under section 4735.022 of the Revised Code; (12) Having falsely represented membership in any real
estate professional association of which the licensee is not a
member; (13) Having accepted, given, or charged any undisclosed
commission, rebate, or direct profit on expenditures made for a
principal; (14) Having offered anything of value other than the
consideration recited in the sales contract as an inducement to a
person to enter into a contract for the purchase or sale of real
estate or having offered real estate or the improvements on real
estate as a prize in a lottery or scheme of chance; (15) Having acted in the dual capacity of real estate
broker
and undisclosed principal, or real estate
salesperson and
undisclosed principal, in any transaction; (16) Having guaranteed, authorized, or permitted any
person
to guarantee future profits which may result from the
resale of
real property; (17) Having placed a sign on any property offering it for
sale or for rent without the consent of the owner or the owner's
authorized agent; (18) Having induced any party to a contract of sale or
lease
to break such contract for the purpose of substituting in
lieu of
it a new contract with another principal; (19) Having negotiated the sale, exchange, or lease of any
real property directly with an owner a seller, purchaser, lessor, or tenant
knowing
that such owner seller, purchaser, lessor, or tenant had a
written outstanding
contract granting exclusive agency in
connection with such property to another
real estate broker is represented by another broker under a written exclusive agency agreement, exclusive right to sell or lease listing agreement, or exclusive purchaser agency agreement with respect to such property except as provided for in section 4735.75 of the Revised Code; (20) Having offered real property for sale or for lease
without the knowledge and consent of the owner or the owner's
authorized
agent, or on any terms other than those authorized by
the owner or the owner's
authorized agent; (21) Having published advertising, whether printed, radio,
display, or of any other nature, which was misleading or
inaccurate in any material particular, or in any way having
misrepresented any properties, terms, values, policies, or
services of the business conducted; (22) Having knowingly withheld from or inserted in any
statement of account or invoice any statement that made it
inaccurate in any material particular; (23) Having published or circulated unjustified or
unwarranted threats of legal proceedings which tended to or had
the effect of harassing competitors or intimidating their
customers; (24) Having failed to keep complete and accurate records
of
all transactions for a period of three years from the date of
the
transaction, such records to include copies of listing forms,
earnest money receipts, offers to purchase and acceptances of
them,
records of receipts and disbursements of all funds
received
by the licensee as broker and incident to the licensee's
transactions
as
such,
and records required pursuant to divisions
(C)(4) and (5) of section 4735.20 of the Revised Code, and any
other
instruments or
papers related
to the
performance of any of
the
acts set forth in
the definition
of a
real estate broker; (25) Failure of a real estate broker or salesperson to
furnish all parties involved in a real estate transaction true
copies of all listings and other agreements to which they are a
party, at the time each party signs them; (26) Failure to maintain at all times a special or trust
bank account in a depository located in this state. The account
shall be noninterest-bearing, separate and distinct from any
personal or other account of the broker, and, except as
provided
in division (A)(27) of this section, shall be used for the deposit
and maintenance of all escrow funds, security deposits, and other
moneys
received by the broker in a fiduciary capacity. The name,
account number, if
any, and location of the depository wherein
such special or trust
account is maintained shall be submitted in
writing to the
superintendent. Checks drawn on such special or
trust bank accounts are
deemed to meet the conditions imposed by
section 1349.21 of the Revised Code. (27) Failure to maintain at all times a special or trust
bank account in a
depository in this state, to be used exclusively
for the deposit and
maintenance of all rents, security deposits,
escrow funds, and other moneys
received by the broker in a
fiduciary capacity in the course of managing real
property. This
account shall be separate and distinct from any other account
maintained by the broker. The name, account number, and location
of the
depository shall be submitted in writing to the
superintendent. This account
may earn interest, which shall be
paid to the property owners on a pro rata
basis. Division (A)(27) of this section does not apply to brokers
who are
not engaged in the management of real property on behalf
of real property
owners. (28) Having failed to put definite expiration dates in all
written agency agreements to which the broker is a party; (29) Having an unsatisfied final judgment in any court of
record against the licensee arising out of the licensee's
conduct
as a licensed broker or salesperson; (30) Failing to render promptly upon demand a full and
complete statement of the expenditures by the broker or
salesperson of funds advanced by or on behalf of a party to a real
estate transaction to the broker or salesperson for the purpose of
performing
duties as a licensee under this chapter in conjunction
with the real estate
transaction; (31) Failure within a reasonable time, after the receipt
of
the commission by the broker, to render an accounting to and
pay a
real estate salesperson the salesperson's earned share of it; (32) Performing any service for another constituting the
practice of law, as determined by any court of law; (33) Having been adjudicated incompetent for the purpose
of
holding the license by a court, as provided in section
5122.301 of
the Revised Code. A license revoked or suspended
under this
division shall be reactivated upon proof
to the commission of the
removal of the disability. (34) Having authorized or permitted a person to act as an
agent in the capacity of a real estate broker, or a real estate
salesperson, who was not then licensed as a real estate
broker or
real estate salesperson under this chapter
or who was not then
operating as an out-of-state commercial real estate broker or
salesperson under section 4735.022 of the Revised Code; (35) Having knowingly inserted or participated in inserting
any materially
inaccurate term in a document, including naming a
false consideration; (36) Having failed to inform the licensee's client of the
existence of an
offer or counter offer counteroffer or having failed to present
an offer or counter offer
counteroffer in a timely manner, unless otherwise
instructed by the client, provided the
instruction of the client
does not conflict with any state or federal law. (B) Whenever the commission, pursuant to section 4735.051
of
the Revised Code, imposes disciplinary sanctions for any violation
of this
section, the commission also may impose such sanctions
upon the broker with
whom the salesperson is affiliated if the
commission finds that the broker had
knowledge of the
salesperson's actions that violated this section. (C) The commission shall, pursuant to section 4735.051 of
the Revised Code,
impose disciplinary sanctions upon any foreign
real estate dealer or
salesperson who, in that capacity or in
handling the dealer's or salesperson's
own property, is found
guilty of any of the acts or omissions specified or
comprehended
in division (A) of this section insofar as the acts or omissions
pertain to foreign real estate. If the commission imposes such
sanctions upon
a foreign real estate salesperson for a violation
of this
section, the commission also may suspend or revoke the
license of
the foreign real estate dealer with whom the
salesperson is affiliated if the commission finds that the dealer
had
knowledge of the salesperson's actions that violated this
section. (D) The commission may suspend, in whole or in part, the
imposition of the penalty of suspension of a license under this
section. (E) The commission immediately shall notify the real
estate
appraiser board of any disciplinary action taken under
this
section against a licensee who also is a state-certified
real
estate appraiser under Chapter 4763. of the Revised Code.
Sec. 4735.51. As used in sections 4735.51 to 4735.74 of the Revised Code: (A) "Agency" and "Agency relationship" mean a
relationship in which a licensee represents another person in a
real estate transaction. (B) "Agency agreement"
means a contract between a licensee and a client in which the
client promises to pay the broker a valuable consideration, or
agrees that the licensee may receive a valuable consideration
from another, for performing an act that requires a real estate
license under this chapter. (C) "Agent" and "real estate agent" mean a person licensed by this chapter to
represent another in a real estate transaction. (D) "Affiliated licensee" means a real estate broker or a real estate
salesperson licensed by this chapter who is affiliated with a
brokerage. (E) "Brokerage" means a corporation, partnership, limited partnership,
association, limited liability company, limited liability partnership, or sole
proprietorship issued a broker's license. "Brokerage" includes the affiliated
licensees who have been assigned management duties that include supervision of
licensees whose duties may conflict with those of other affiliated licensees. (F) "Client" means a person who has entered into an agency relationship with
a licensee. (G) "Confidential information" means all information that a client directs to
be kept confidential or that if disclosed would have an adverse effect on the
client's position in the real estate transaction, except to the extent the
agent is required by law to disclose such information, and all information
that is required by law to be kept confidential. (H) "Dual agency relationship" means any of the dual agency relationships set
forth in section 4735.70 of the Revised Code. (I) "In-company transaction" means a real estate transaction in which the
purchaser and seller are both represented by the same brokerage. (J) "Licensee" means any individual licensed as a real estate broker or
salesperson by the Ohio real estate commission pursuant to this chapter. (K) "Management level licensee" means a licensee who is employed by or
affiliated with a real estate broker and who has supervisory responsibility
over other licensees employed by or affiliated
with that real estate broker. (L) "Purchaser" means a
party in a real estate transaction who is the potential
transferee of property. "Purchaser" includes a person seeking
to buy property and a person seeking to rent property as a
tenant or lessee. (M) "Real estate transaction" means any act that is described in division (A)
of section 4735.01 of the Revised Code or that is related to the execution of
an act described in that section. (N) "Seller" means a party in a real estate transaction who is the potential
transferor of property. "Seller" includes an owner of property
who is seeking to sell the property and a landlord who is
seeking to rent or lease property to another person. (O) "Subagency" and "subagency relationship" mean an agency relationship in
which a licensee acts for another licensee in performing duties for the
client of that licensee.
(P)(O) "Timely" means as soon as possible under the particular circumstances.
Sec. 4735.621. (A) The duties required of a licensee under section 4735.62 of the Revised Code may not be waived by a client. (B) A licensee shall perform the duties required under section 4735.63 or 4735.65 of the Revised Code unless the client agrees to waive these duties, and signs a waiver of duties statement pursuant to division (C) of this section. (C) The superintendent of real estate, with the approval of the Ohio real estate commission, shall establish by rule a waiver of duties statement that shall contain the following: (1) The fiduciary duties required of all licensees under section 4735.62 of the Revised Code; (2) A list of those duties contained in section 4735.63 or 4735.65 of the Revised Code, which shall be set forth in a manner that allows for the parties to indicate which of those duties are being waived; (3) A statement that no other licensee is required to perform the waived duty on behalf of the client; (4) A statement that legal counsel or other professionals may be hired by the client; (5) A place for the client and licensee to sign and date the statement.
Sec. 4735.63. (A) In representing a seller in an agency relationship, a
licensee shall promote the interest of the client by doing all of the
following: (1) Seeking Seek a purchase offer at a price and with terms
acceptable to the client seller. Unless the client seller so directs, the
licensee is not obligated to seek additional offers if the
property is subject to a contract of sale, lease, or letter of
intent to lease; (2) Presenting Accept delivery of and present any purchase offer to the client seller in a
timely manner, even if the property is subject to a contract of
sale, lease, or letter of intent to lease; (3) Prior to presenting the seller an offer to purchase,
providing the seller with a copy of any agency disclosure form
signed by the purchaser Within the scope of knowledge required for licensure, answer the seller's questions and provide information to the seller regarding any offers or counteroffers; (4) Assist the seller in developing, communicating, and presenting offers or counteroffers;
(5) Within the scope of knowledge required for licensure, answer the seller's questions regarding the steps the seller must take to fulfill the terms of any contract. (B) A licensee does not
breach any duty or obligation to a seller with whom the licensee has an
agency relationship by showing alternative properties to a
prospective purchaser or by acting as an agent or subagent for
other sellers.
(C) Nothing in this section shall be construed as permitting a licensee to perform any act or service that constitutes the practice of law.
Sec. 4735.65. (A) In representing a purchaser in an agency relationship, a
licensee shall represent the interests of the purchaser by doing each of the
following: (1) Seeking Seek a property at a price and with purchase or lease terms
acceptable to the purchaser. Unless the client so directs, the
licensee is not obligated to seek additional purchase or lease
possibilities if the purchaser is a party to a contract to
purchase property, or has entered into a lease or has extended a
letter of intent to lease. (2) Presenting Within the scope of knowledge required for licensure, answer the purchaser's questions and provide information to the purchaser regarding any offers or counteroffers; (3) Assist the purchaser in developing, communicating, and presenting offers or counteroffers; (4) Present any offer to purchase or lease to the seller or the
seller's agent in a timely manner, even if the property
is subject to a contract of sale, lease, or letter of intent to lease, and accept delivery of and present any counteroffers to the purchaser in a timely manner; (5) Within the scope of knowledge required for licensure, answer the purchaser's questions regarding the steps the purchaser must take to fulfill the terms of any contract. (B) A licensee does not
breach any duty or obligation to the purchaser by showing the
same properties to other purchasers or by acting as an agent or
subagent for other purchasers, or as an agent or subagent for
sellers, except that any dual agency relationship must be
disclosed to a client pursuant to section 4735.71 of the
Revised Code.
(C) Nothing in this section shall be construed as permitting a licensee to perform any act or service that constitutes the practice of law.
Sec. 4735.75. (A) A broker who has the exclusive authority to represent a client under a written exclusive agency agreement, exclusive right to sell agreement, or exclusive purchaser agency agreement may authorize other licensees to negotiate directly with that client. The authorization shall be in writing and the broker shall comply with the requirements of section 4735.621 of the Revised Code. (B) A licensee who negotiates directly with a seller, purchaser, lessor, or tenant pursuant to a written authorization as described in division (A) of this section does not violate division (A)(19) of section 4735.18 of the Revised Code and negotiations conducted by a licensee pursuant to the authorization shall not create or imply an agency relationship between that licensee and the client of that exclusive broker. (C) As used in this section and division (A)(19) of section 4735.18 of the Revised Code, "negotiate" means any the following: (1) Delivering or communicating an offer, counteroffer, or proposal; (2) Discussing or reviewing the terms of any offer, counteroffer, or proposal; (3) Facilitating communication regarding an offer, counteroffer, or proposal and preparing any response as directed.
Sec. 4737.10. (A) Before a license is granted or renewed under
sections 4737.05 to 4737.12 of the Revised Code, the sheriff of
each county, or, if the sheriff so designates, a township
policeman police officer or constable, and the chief of police
of each municipal
corporation shall inspect the junk yard within his the sheriff's, police
officer's, constable's, or chief's respective
jurisdiction to determine if it complies with sections 4737.05 to
4737.12 of the Revised Code. The sheriff, or a township
policeman police officer or constable, or chief of police shall
submit a written
report of such examination to the county auditor of the county or
the village solicitor or city director of law of the municipal
corporation wherein such junk yard is located. (B) In addition, twice annually the sheriff of each county, or,
if the sheriff so designates, a township policeman police
officer or constable,
and the chief of police of each municipal corporation shall
inspect every junk yard that is located within his the sheriff's, police
officer's, constable's, or chief's jurisdiction
and for which a license has been issued under sections 4737.05 to
4737.12 of the Revised Code, to obtain information with regard to
whether the licensee's activity has been and is being conducted
in accordance with sections 4737.01 to 4737.12 of the Revised
Code. The sheriff, township policeman police officer or
constable, or the chief
of police shall submit a written report of each such examination
to the county auditor of the county or the village solicitor or
city director of law of the municipal corporation wherein such
junk yard is located. The sheriff, township policeman police officer or constable, or
the chief
of police shall, for the purpose of these examinations, have free
access to the grounds and buildings used or proposed for use in
the conduct of the junk yard activity by the applicant or the
licensee. Such inspections may be made at any time, at the option of
the sheriff, township policeman police officer or constable, or
the chief of
police during the regular work hours of the licensee or within
the hours of eight a.m. and five p.m. Monday through Friday. The director of transportation may also inspect junk yards
adjacent to state highways to obtain information with regard to
whether the licensee's activity is being conducted in accordance
with sections 4737.01 to 4737.12 of the Revised Code. If such
inspection indicates that there is a violation of any of the
provisions of such sections the director shall advise the
attorney general of such alleged violations and request him the
attorney general to
take proper legal action. (C) Whenever it is determined upon any semiannual inspection
made under this section that a junk yard is not being conducted
in accordance with the requirements of sections 4737.01 to
4737.12 of the Revised Code, the sheriff of the county, township
policeman police officer or constable, or the chief of police of
the municipal
corporation within whose jurisdiction the junk yard is located,
shall immediately notify the owner of the junk yard of such fact.
The notice shall be sent to the owner by registered mail, and
shall detail the areas which are not in conformity with the
requirements of sections 4737.01 to 4737.12 of the Revised Code.
A copy of the notice shall also be sent to the auditor of the
county, or the village solicitor or city director of law of the
municipal corporation within which the junk yard is located. (D) Any owner of a junk yard who receives a notice as provided
in this section shall, within sixty days after the mailing of the
notice, undertake and complete such changes or improvements as
are necessary to conform the junk yard to the requirements of
sections 4737.01 to 4737.12 of the Revised Code. At the
expiration of the sixty-day period, the sheriff, township
policeman police officer or constable, or the chief of police
shall make a
further inspection of the junk yard, and if the required changes
or improvements have not been made, the sheriff, township police officer or constable, or the chief of the police shall send notice of that noncompliance along with an order to suspend the owner's license to the chief executive officer of the municipality or the county auditor of the county in which the licensee's junk yard is located. After receiving that notice and order, the chief executive officer or county auditor, as appropriate, shall suspend the owner's license for ninety days. While the owner's license is suspended, the owner shall undertake and complete such changes or improvements necessary to conform the junk yard to the requirements of sections 4737.01 to 4737.12 of the Revised Code. (E) An owner whose license is suspended pursuant to division (D) of this section may appeal the suspension in accordance with Chapter 2506. of the Revised Code. At any time during the ninety days in which an owner's license is suspended, the owner may apply to the sheriff, township police officer or constable, or the chief of the police to have the junk yard inspected. If, after the inspection, the sheriff, township police officer or constable, or the chief of the police determines that the junk yard conforms to the requirements of sections 4737.01 to 4737.12 of the Revised Code, the sheriff, township police officer or constable, or the chief of the police, as appropriate, shall send notice of that compliance along with an order to remove the suspension and reinstate the owner's license to the chief executive officer of the municipality or the county auditor of the county in which the licensee's junk yard is located. After receiving that notice and order, the chief executive officer or the county auditor, as appropriate, shall remove the suspension and reinstate the owner's license. (F)(1) An owner may sell junk while the owner's license is suspended.
(2) No licensee may accept junk for future resale during the time that the licensee's license is suspended under division (D) of this section.
(G) If an owner's license has not been reinstated under division (E) of this section prior to the end of a ninety-day suspension, the sheriff, township police officer or constable, or the chief of police shall make a further inspection of the junk yard. If the owner has not made the required changes or improvements, the sheriff, township police officer or constable, or chief of police shall send notice of that noncompliance along with an order to revoke the owner's license to the chief executive officer of the municipality or the county auditor of the county in which the licensee's junk yard is located. After receiving that notice and order, the chief executive officer or the county auditor shall revoke the owner's license in accordance with the procedures specified in section 4737.07 of the Revised Code. In addition to having the licensee's license revoked, the owner of the junk yard
shall be subject to a tax of twenty one hundred dollars for each day after revocation that the
violation continues. The sheriff, township policeman police officer or constable, or
the chief
of police shall certify a return of the imposition of said tax
thereon to the county auditor, who shall enter the same as a tax
upon the property and against the persons upon which or whom the
lien was imposed as and when other taxes are entered. The
provisions of the laws relating to the collection of taxes in
this state, the delinquency thereof, and sale of property for
taxes shall govern in the collection of the tax prescribed in
this section insofar as the same are applicable.
Sec. 4737.99. (A) Whoever Except as specified in division (B) of this section, whoever violates sections 4737.01 to
4737.11, inclusive,
of
the Revised Code, shall be fined not less than twenty-five nor
more than one
thousand dollars and the costs of prosecution. (B) Whoever violates division (F)(2) of section 4737.10 of the Revised Code is guilty of a misdemeanor of the fourth degree.
Sec. 4738.16. (A) Chapter 4738. of the Revised Code does
not apply to a scrap metal processor engaged primarily in the
acquisition, processing, and shipment of ferrous and nonferrous
scrap, or who receives dismantled salvage motor vehicles, used
motor vehicles, or motor vehicle parts as scrap metal for the
purpose of recycling the motor vehicles or parts for their
metallic content, the end product of which is the production of
material for recycling and remelting purposes for mills,
foundries, smelters, and refiners. (B) A scrap metal processor who receives a motor vehicle
from the owner described on the certificate of title shall within
ten days mark the certificate "TO BE CANCELED," keep a record of
the cancellation, and forward the certificate to the clerk of the
court who issued it. The clerk shall notify the registrar of
motor vehicles of such cancellation. The scrap metal processor shall keep the record of the cancellation for three years after creating the record. The record shall include a copy of the canceled title, and if the seller of the motor vehicle is not the titled owner, the record also shall include all of the following information about the seller:
(1) The seller's name and address;
(2) An identification number from the seller's driver's
license, military identification, or other state issued license;
(3) A physical description of the seller;
(4) The seller's expenditures for the motor vehicle.
The scrap metal processor shall make a record of a cancellation available to any requesting law enforcement agency during the scrap metal processor's normal business hours.
SECTION 2. That existing sections 4735.01, 4735.16, 4735.18, 4735.51, 4735.63, 4735.65, 4737.10, 4737.99, and 4738.16 of the Revised Code are hereby repealed.
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