[First Reprint]

ASSEMBLY, No. 373

STATE OF NEW JERSEY

213th LEGISLATURE

PRE-FILED FOR INTRODUCTION IN THE 2008 SESSION

 


 

Sponsored by:

Assemblyman PATRICK J. DIEGNAN, JR.

District 18 (Middlesex)

Assemblyman PAUL D. MORIARTY

District 4 (Camden and Gloucester)

Assemblyman JOSEPH VAS

District 19 (Middlesex)

 

Co-Sponsored by:

Assemblyman Wisniewski, Senators Scutari, Singer and Cardinale

 

 

 

 

SYNOPSIS

†††† Permits real estate brokers to provide rebates to purchasers.

 

CURRENT VERSION OF TEXT

†††† As reported by the Assembly Regulated Professions Committee on January 15, 2009, with amendments.

††


An Act concerning certain real estate promotions 1[and] ,1 amending R.S.45:15-17 1and supplementing chapter 15 of Title 45 of the Revised Statutes1.

 

†††† Be It Enacted by the Senate and General Assembly of the State of New Jersey:

 

†††† 1.††† R.S.45:15-17 is amended to read as follows:

†††† 45:15-17.† The commission may, upon its own motion, and shall, upon the verified complaint in writing of any person, investigate the actions of any real estate broker, broker-salesperson or salesperson, or any person who assumes, advertises or represents himself as being authorized to act as a real estate broker, broker-salesperson or salesperson or engages in any of the activities described in R.S.45:15-3 without being licensed so to do.† The lapse or suspension of a license by operation of law or the voluntary surrender of a license by a licensee shall not deprive the commission of jurisdiction to proceed with any investigation as herein provided or prevent the commission from taking any regulatory action against such licensee, provided, however, that the alleged charges arose while said licensee was duly licensed.† Each transaction shall be construed as a separate offense.

†††† In conducting investigations, the commission may take testimony by deposition as provided in R.S.45:15-18, require or permit any person to file a statement in writing, under oath or otherwise as the commission determines, as to all the facts and circumstances concerning the matter under investigation, and, upon its own motion or upon the request of any party, subpoena witnesses, compel their attendance, take evidence, and require the production of any material which is relevant to the investigation, including any and all records of a licensee pertaining to his activities as a real estate broker, broker-salesperson or salesperson.† The commission may also require the provision of any information concerning the existence, description, nature, custody, condition and location of any books, documents, or other tangible material and the identity and location of persons having knowledge of relevant facts of any other matter reasonably calculated to lead to the discovery of material evidence.† Upon failure to obey a subpoena or to answer questions posed by an investigator or legal representative of the commission and upon reasonable notice to all affected persons, the commission may commence an administrative action as provided below or apply to the Superior Court for an order compelling compliance.

†††† The commission may place on probation, suspend for a period less than the unexpired portion of the license period, or may revoke any license issued under the provisions of this article, or the right of licensure when such person is no longer the holder of a license at the time of hearing, or may impose, in addition or as an alternative to such probation, revocation or suspension, a penalty of not more than $5,000 for the first violation, and a penalty of not more than $10,000 for any subsequent violation, which penalty shall be sued for and recovered by and in the name of the commission and shall be collected and enforced by summary proceedings pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.), where the licensee or any person, in performing or attempting to perform any of the acts mentioned herein, is deemed to be guilty of:

†††† a.†††† Making any false promises or any substantial misrepresentation; or

†††† b.††† Acting for more than one party in a transaction without the knowledge of all parties thereto; or

†††† c.†††† Pursuing a flagrant and continued course of misrepresentation or making of false promises through agents, broker-salespersons or salespersons, advertisements or otherwise; or

†††† d.††† Failure to account for or to pay over any moneys belonging to others, coming into the possession of the licensee; or

†††† e.†††† Any conduct which demonstrates unworthiness, incompetency, bad faith or dishonesty.† The failure of any person to cooperate with the commission in the performance of its duties or to comply with a subpoena issued by the commission compelling the production of materials in the course of an investigation, or the failure to give a verbal or written statement concerning a matter under investigation may be construed as conduct demonstrating unworthiness; or

†††† f.†††† Failure to provide his client with a fully executed copy of any sale or exclusive sales or rental listing contract at the time of execution thereof, or failure to specify therein a definite terminal date which terminal date shall not be subject to any qualifying terms or conditions; or

†††† g.†††† Using any plan, scheme or method for the sale or promotion of the sale of real estate which involves a lottery, a contest, a game, a prize, a drawing, or the offering of a lot or parcel or lots or parcels for advertising purposes, provided, however, that a promotion or offer of free, discounted or other services or products which does not require that the recipient of any free, discounted or other services or products enter into a sale, listing or other real estate contract as a condition of the promotion or offer shall not constitute a violation of this subsection if that promotion or offering does not involve a lottery, a contest, a game, a drawing or the offering of a lot or parcel or lots or parcels for advertising purposes.† A broker shall disclose in writing any compensation received for such promotion or offer in the form and substance as required by the federal "Real Estate Settlement Procedures Act of 1974," 12 U.S.C. ss.2601 et seq., except that, notwithstanding the provisions of that federal act, written disclosure shall be provided no later than when the promotion or offer is extended by the broker to the consumer; or

†††† h.†††† Being convicted of a crime, knowledge of which the commission did not have at the time of last issuing a real estate license to the licensee; or

†††† i.††††† Collecting a commission as a real estate broker in a transaction, when at the same time representing either party in a transaction in a different capacity for a consideration; or

†††† j.†††† Using any trade name or insignia of membership in any real estate organization of which the licensee is not a member; or

†††† k.††† Paying any rebate, profit, compensation or commission to anyone not possessed of a real estate license, except that: (1) free, discounted or other services or products provided for in subsection g. of this section shall not constitute a violation of this subsection; and (2) a real estate 1[licensee] broker1 may provide a 1[seller or]1 purchaser 1of residential real property, but no other third party1 a rebate of a portion of the commission paid to the 1[licensee] broker1 in a transaction, so long as: the 1[licensee] broker1 and the 1[seller or]1 purchaser contract for such a rebate 1[in advance; and] at the onset of the broker relationship in a written document, electronic document or a buyer agency agreement;1 the 1[licensee] broker1 complies with any State or federal requirements with respect to the disclosure of the payment of the rebate 1; and the broker recommends to the purchaser that the purchaser contact a tax professional concerning the tax implications of receiving that rebate1. The rebate paid to the 1[seller or]1 purchaser 1[may] shall1 be in the form of 1[cash or other thing of value, including, but not limited to, a gift certificate,] a credit, reducing the amount of the commission payable to the broker, or a check paid by the closing agent1 and 1[may] shall1 be made at 1[or after]1 the 1time of1 closing; or

†††† l.††††† Any other conduct, whether of the same or a different character than specified in this section, which constitutes fraud or dishonest dealing; or

†††† m.††† Accepting a commission or valuable consideration as a real estate broker-salesperson or salesperson for the performance of any of the acts specified in this act, from any person, except his employing broker, who must be a licensed broker; or

†††† n.†††† Procuring a real estate license, for himself or anyone else, by fraud, misrepresentation or deceit; or

†††† o.††† Commingling the money or other property of his principals with his own or failure to maintain and deposit in a special account, separate and apart from personal or other business accounts, all moneys received by a real estate broker, acting in said capacity, or as escrow agent, or the temporary custodian of the funds of others, in a real estate transaction; or

†††† p.††† Selling property in the ownership of which he is interested in any manner whatsoever, unless he first discloses to the purchaser in the contract of sale his interest therein and his status as a real estate broker, broker-salesperson or salesperson; or

†††† q.††† Purchasing any property unless he first discloses to the seller in the contract of sale his status as a real estate broker, broker-salesperson or salesperson; or

†††† r.†††† Charging or accepting any fee, commission or compensation in exchange for providing information on purportedly available rental housing, including lists of such units supplied verbally or in written form, before a lease has been executed or, where no lease is drawn, before the tenant has taken possession of the premises without complying with all applicable rules promulgated by the commission regulating these practices; or

†††† s.†††† Failing to notify the commission within 30 days of having been convicted of any crime, misdemeanor or disorderly persons offense, or of having been indicted, or of the filing of any formal criminal charges, or of the suspension or revocation of any real estate license issued by another state, or of the initiation of formal disciplinary proceedings in another state affecting any real estate license held, or failing to supply any documentation available to the licensee that the commission may request in connection with such matter; or

†††† t.†††† The violation of any of the provisions of this article or of the administrative rules adopted by the commission pursuant to the provisions of this article.† The commission is expressly vested with the power and authority to make, prescribe and enforce any and all rules and regulations for the conduct of the real estate brokerage business consistent with the provisions of chapter 15 of Title 45 of the Revised Statutes.

†††† If a licensee is deemed to be guilty of a third violation of any of the provisions of this section, whether of the same provision or of separate provisions, the commission may deem that person a repeat offender, in which event the commission may direct that no license as a real estate broker, broker-salesperson or salesperson shall henceforth be issued to that person.

(cf:† P.L.2001, c.68, s.1)

 

†††† 12.†† (New section)† a.† Any rebate paid by a broker to a purchaser of residential real property pursuant to paragraph (2) of subsection k. of R.S.45:15-17 shall be:

†††† (1)†† Calculated after the purchaser negotiates the rebate commission rate;

†††† (2)†† Memorialized in a written document, electronic document or a buyer agency agreement provided by the broker to the purchaser at the outset of the broker relationship, which document or agreement shall provide the terms of any rebate credited or paid by the broker to the purchaser; and

†††† (3)†† Disclosed to all parties involved in the transaction, including, but not limited to, any mortgage lender.

†††† b.††† A rebate shall not be:

†††† (1)†† Paid to a person not licensed as a real estate broker for any act that requires licensure;

†††† (2)†† Contingent upon the use of other services or products being offered by a broker or an affiliate of a broker; or

†††† (3)†† Based on the use of a lottery, contest or game.1

 

†††† 13.†† (New section)† a.† Any advertisement for a rebate allowed pursuant to paragraph (2) of subsection k. of R.S.45:15-17 shall include:

†††† (1)†† A disclosure concerning the purchaserís obligation to pay any applicable taxes for receipt of the rebate; and

†††† (2)†† A notice that the purchaser should contact a tax professional concerning the tax implications of receiving the rebate.

†††† b.††† The disclosure and notice required pursuant subsection a. of this section shall be clearly and conspicuously displayed in the advertisement and the size of the text in the notice and disclosure shall be equal to or larger than the size of the text used for the advertisement.1

 

†††† 14.†† (New section) The New Jersey Real Estate Commission may promulgate regulations pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B‑1 et seq.), necessary to effectuate the provisions of this act.1

 

†††† 1[2.] 5.1†††† This act shall take effect immediately.