House Bill 0417c1

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    Florida House of Representatives - 1999              CS/HB 417

        By the Committee on Real Property & Probate and
    Representative J. Miller





  1                      A bill to be entitled

  2         An act relating to real estate brokers and

  3         salespersons; amending s. 475.01, F.S.;

  4         eliminating the definition of the term "first

  5         contact"; amending s. 475.011, F.S.; providing

  6         a regulatory exemption for certain financial

  7         institutions in connection with certain

  8         transactions; amending s. 475.181, F.S.;

  9         referencing certification requirements of the

10         Florida Real Estate Commission for licensure as

11         a broker or salesperson; amending s. 475.25,

12         F.S.; providing a ground for discipline

13         relating to designation of salespersons as

14         single agents for different customers in

15         certain transactions; providing penalties;

16         conforming cross references; amending s.

17         475.272, F.S.; revising intent of the Brokerage

18         Relationship Disclosure Act to eliminate

19         required disclosure of nonrepresentation;

20         amending ss. 475.274 and 475.2755, F.S.;

21         conforming cross references; repealing s.

22         475.276, F.S., relating to notice of

23         nonrepresentation; amending s. 475.278, F.S.;

24         requiring notice relating to disclosure of

25         information prior to engaging in an authorized

26         brokerage relationship; providing applicability

27         or nonapplicability of brokerage relationship

28         disclosure requirements to various real estate

29         transactions; amending s. 475.2801, F.S.;

30         removing a cross reference, to conform;

31         amending ss. 475.482 and 475.483, F.S.;

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  1         revising eligibility requirements for recovery

  2         from the Real Estate Recovery Fund; amending s.

  3         475.5015, F.S.; removing a cross reference, to

  4         conform; providing an effective date.

  5

  6  Be It Enacted by the Legislature of the State of Florida:

  7

  8         Section 1.  Subsection (1) of section 475.01, Florida

  9  Statutes, 1998 Supplement, is amended to read:

10         475.01  Definitions.--

11         (1)  As used in this part:

12         (a)  "Broker" means a person who, for another, and for

13  a compensation or valuable consideration directly or

14  indirectly paid or promised, expressly or impliedly, or with

15  an intent to collect or receive a compensation or valuable

16  consideration therefor, appraises, auctions, sells, exchanges,

17  buys, rents, or offers, attempts or agrees to appraise,

18  auction, or negotiate the sale, exchange, purchase, or rental

19  of business enterprises or business opportunities or any real

20  property or any interest in or concerning the same, including

21  mineral rights or leases, or who advertises or holds out to

22  the public by any oral or printed solicitation or

23  representation that she or he is engaged in the business of

24  appraising, auctioning, buying, selling, exchanging, leasing,

25  or renting business enterprises or business opportunities or

26  real property of others or interests therein, including

27  mineral rights, or who takes any part in the procuring of

28  sellers, purchasers, lessors, or lessees of business

29  enterprises or business opportunities or the real property of

30  another, or leases, or interest therein, including mineral

31  rights, or who directs or assists in the procuring of

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  1  prospects or in the negotiation or closing of any transaction

  2  which does, or is calculated to, result in a sale, exchange,

  3  or leasing thereof, and who receives, expects, or is promised

  4  any compensation or valuable consideration, directly or

  5  indirectly therefor; and all persons who advertise rental

  6  property information or lists.  A broker renders a

  7  professional service and is a professional within the meaning

  8  of s. 95.11(4)(a).  Where the term "appraise" or "appraising"

  9  appears in the definition of the term "broker," it

10  specifically excludes those appraisal services which must be

11  performed only by a state-licensed or state-certified

12  appraiser, and those appraisal services which may be performed

13  by a registered assistant appraiser as defined in part II.

14  The term "broker" also includes any person who is a general

15  partner, officer, or director of a partnership or corporation

16  which acts as a broker.  The term "broker" also includes any

17  person or entity who undertakes to list or sell one or more

18  timeshare periods per year in one or more timeshare plans on

19  behalf of any number of persons, except as provided in ss.

20  475.011 and 721.20.

21         (b)  "Broker-salesperson" means a person who is

22  qualified to be issued a license as a broker but who operates

23  as a salesperson in the employ of another.

24         (c)  "Commission" means the Florida Real Estate

25  Commission.

26         (d)  "Customer" means a member of the public who is or

27  may be a buyer or seller of real property and may or may not

28  be represented by a real estate licensee in an authorized

29  brokerage relationship.

30         (e)  "Department" means the Department of Business and

31  Professional Regulation.

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  1         (f)  "Fiduciary" means a broker in a relationship of

  2  trust and confidence between that broker as agent and the

  3  seller or buyer as principal. The duties of the broker as a

  4  fiduciary are loyalty, confidentiality, obedience, full

  5  disclosure, and accounting and the duty to use skill, care,

  6  and diligence.

  7         (g)  "First contact" means at the commencement of the

  8  initial meeting of or communication between a licensee and a

  9  seller or buyer; however, the term does not include:

10         1.  A bona fide "open house" or model home showing that

11  does not involve eliciting confidential information; the

12  execution of a contractual offer or an agreement for

13  representation; or negotiations concerning price, terms, or

14  conditions of a potential sale;

15         2.  Unanticipated casual encounters between a licensee

16  and a seller or buyer that do not involve eliciting

17  confidential information; the execution of a contractual offer

18  or an agreement for representation; or negotiations concerning

19  price, terms, or conditions of a potential sale;

20         3.  Responding to general factual questions from a

21  prospective buyer or seller concerning properties that have

22  been advertised for sale; or

23         4.  Situations in which a licensee's communications

24  with a customer are limited to providing general factual

25  information, oral or written, about the qualifications,

26  background, and services of the licensee or the licensee's

27  brokerage firm.

28

29  In any of the situations described in subparagraphs 1.-4.,

30  "first contact" occurs when the communications between the

31  licensee and the prospective seller or buyer proceed in any

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  1  way beyond the conditions or limitations described in

  2  subparagraphs 1.-4.

  3         (g)(h)  "Involuntarily inactive status" means the

  4  licensure status that results when a license is not renewed at

  5  the end of the license period prescribed by the department.

  6         (h)(i)  "Principal" means the party with whom a real

  7  estate licensee has entered into a single agent relationship.

  8         (i)(j)  "Real property" or "real estate" means any

  9  interest or estate in land and any interest in business

10  enterprises or business opportunities, including any

11  assignment, leasehold, subleasehold, or mineral right;

12  however, the term does not include any cemetery lot or right

13  of burial in any cemetery; nor does the term include the

14  renting of a mobile home lot or recreational vehicle lot in a

15  mobile home park or travel park.

16         (j)(k)  "Salesperson" means a person who performs any

17  act specified in the definition of "broker," but who performs

18  such act under the direction, control, or management of

19  another person. A salesperson renders a professional service

20  and is a professional within the meaning of s. 95.11(4)(a).

21         (k)(l)  "Single agent" means a broker who represents,

22  as a fiduciary, either the buyer or seller but not both in the

23  same transaction.

24         (l)(m)  "Transaction broker" means a broker who

25  provides limited representation to a buyer, a seller, or both,

26  in a real estate transaction, but does not represent either in

27  a fiduciary capacity or as a single agent.

28         (m)(n)  "Voluntarily inactive status" means the

29  licensure status that results when a licensee has applied to

30  the department to be placed on inactive status and has paid

31  the fee prescribed by rule.

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  1         Section 2.  Subsection (12) is added to section

  2  475.011, Florida Statutes, 1998 Supplement, to read:

  3         475.011  Exemptions.--This part does not apply to:

  4         (12)  Any federally insured depository institution, and

  5  any parent, subsidiary, or affiliate thereof, in connection

  6  with the purchase or sale of a business enterprise, whether a

  7  purchase or sale of stock or assets of the business

  8  enterprise. This exemption shall not apply to the purchase or

  9  sale of land, buildings, fixtures, or other improvements to

10  the land which is not in connection with the purchase or sale

11  of a business enterprise. For purposes of this exemption, any

12  reference to purchase or sale shall be deemed to include a

13  lease transaction.

14         Section 3.  Subsection (1) of section 475.181, Florida

15  Statutes, 1998 Supplement, is amended to read:

16         475.181  Licensure.--

17         (1)  The department shall license any applicant whom

18  the commission certifies, pursuant to subsection (2), to be

19  qualified to practice as a broker or salesperson.

20         (2)  The commission shall certify for licensure any

21  applicant who satisfies the requirements of ss. 475.17,

22  475.175, and 475.180. The commission may refuse to certify any

23  applicant who has violated any of the provisions of s. 475.42

24  or who is subject to discipline under s. 475.25. The

25  application shall expire 1 year from the date received if the

26  applicant fails to take the appropriate examination.

27         Section 4.  Paragraph (q) of subsection (1) of section

28  475.25, Florida Statutes, 1998 Supplement, is amended to read:

29         475.25  Discipline.--

30         (1)  The commission may deny an application for

31  licensure, registration, or permit, or renewal thereof; may

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  1  place a licensee, registrant, or permittee on probation; may

  2  suspend a license, registration, or permit for a period not

  3  exceeding 10 years; may revoke a license, registration, or

  4  permit; may impose an administrative fine not to exceed $1,000

  5  for each count or separate offense; and may issue a reprimand,

  6  and any or all of the foregoing, if it finds that the

  7  licensee, registrant, permittee, or applicant:

  8         (q)  Has violated any provision of s. 475.2755 475.276

  9  or s. 475.278, including the duties owed under those sections.

10         Section 5.  Section 475.272, Florida Statutes, 1998

11  Supplement, is amended to read:

12         475.272  Purpose.--In order to eliminate confusion and

13  provide for a better understanding on the part of customers in

14  real estate transactions, the Legislature finds that the

15  intent of the Brokerage Relationship Disclosure Act is to

16  provide that:

17         (1)  Disclosed dual agency as an authorized form of

18  representation by a real estate licensee in this state is

19  expressly revoked;

20         (2)  Real estate licensees be required to disclose to

21  customers upon first contact in residential real estate

22  transactions that they are not and will not be represented by

23  a licensee in a real estate transaction unless they engage a

24  real estate licensee in an authorized form of representation,

25  either as a single agent or as a transaction broker;

26         (2)(3)  Disclosure requirements for real estate

27  licensees relating to nonrepresentation and authorized forms

28  of brokerage representation are established;

29         (3)(4)  Single agents may represent either a buyer or a

30  seller, but not both, in a real estate transaction; and

31

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  1         (4)(5)  Transaction brokers provide a limited form of

  2  nonfiduciary representation to a buyer, a seller, or both in a

  3  real estate transaction.

  4         Section 6.  Section 475.274, Florida Statutes, 1998

  5  Supplement, is amended to read:

  6         475.274  Scope of coverage.--The authorized brokerage

  7  relationships described in ss. 475.2755 and 475.278 apply in

  8  all brokerage activities as defined in s. 475.01(1)(a). The

  9  disclosure requirements of s. ss. 475.276 and 475.278 apply

10  only to residential sales as defined in s. 475.278(5)(a)

11  475.276.

12         Section 7.  Section 475.2755, Florida Statutes, 1998

13  Supplement, is amended to read:

14         475.2755  Designated salesperson.--

15         (1)  For purposes of this part, in any real estate

16  transaction other than a residential sale as defined in s.

17  475.278(5)(a) 475.276, and where the buyer and seller have

18  assets of $1 million or more, the broker at the request of the

19  customers may designate salespersons to act as single agents

20  for different customers in the same transaction. Such

21  designated salespersons shall have the duties of a single

22  agent as outlined in s. 475.278(3), including disclosure

23  requirements in s. 475.278(3)(b) and (c). In addition to

24  disclosure requirements in s. 475.278(3)(b) and (c), the buyer

25  and seller as customers shall both sign disclosures stating

26  that their assets meet the threshold described in this

27  subsection and requesting that the broker use the designated

28  salesperson form of representation. In lieu of the transition

29  disclosure requirement in s. 475.278(3)(c)2., the required

30  disclosure notice shall include the following:

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  1  FLORIDA LAW PROHIBITS A DESIGNATED SALESPERSON FROM

  2  DISCLOSING, EXCEPT TO THE BROKER OR PERSONS SPECIFIED BY THE

  3  BROKER, INFORMATION MADE CONFIDENTIAL BY REQUEST OR AT THE

  4  INSTRUCTION OF THE CUSTOMER THE DESIGNATED SALESPERSON IS

  5  REPRESENTING. HOWEVER, FLORIDA LAW ALLOWS A DESIGNATED

  6  SALESPERSON TO DISCLOSE INFORMATION ALLOWED TO BE DISCLOSED OR

  7  REQUIRED TO BE DISCLOSED BY LAW AND ALSO ALLOWS A DESIGNATED

  8  SALESPERSON TO DISCLOSE TO HIS OR HER BROKER, OR PERSONS

  9  SPECIFIED BY THE BROKER, CONFIDENTIAL INFORMATION OF A

10  CUSTOMER FOR THE PURPOSE OF SEEKING ADVICE OR ASSISTANCE FOR

11  THE BENEFIT OF THE CUSTOMER IN REGARD TO A TRANSACTION.

12  FLORIDA LAW REQUIRES THAT THE BROKER MUST HOLD THIS

13  INFORMATION CONFIDENTIAL AND MAY NOT USE SUCH INFORMATION TO

14  THE DETRIMENT OF THE OTHER PARTY.

15

16         (2)  For purposes of this section, the term "buyer"

17  means a transferee or lessee in a real property transaction,

18  and the term "seller" means the transferor or lessor in a real

19  property transaction.

20         Section 8.  Section 475.276, Florida Statutes, 1998

21  Supplement, is repealed.

22         Section 9.  Subsections (2) and (3) of section 475.278,

23  Florida Statutes, 1998 Supplement, are amended, and subsection

24  (5) is added to said section, to read:

25         475.278  Authorized brokerage relationships; required

26  disclosures.--

27         (2)  TRANSACTION BROKER RELATIONSHIP.--

28         (a)  Transaction broker - duties of limited

29  representation.--A transaction broker provides a limited form

30  of representation to a buyer, a seller, or both in a real

31  estate transaction but does not represent either in a

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  1  fiduciary capacity or as a single agent. The duties of the

  2  real estate licensee in this limited form of representation

  3  include the following:

  4         1.  Dealing honestly and fairly;

  5         2.  Accounting for all funds;

  6         3.  Using skill, care, and diligence in the

  7  transaction;

  8         4.  Disclosing all known facts that materially affect

  9  the value of residential real property and are not readily

10  observable to the buyer;

11         5.  Presenting all offers and counteroffers in a timely

12  manner, unless a party has previously directed the licensee

13  otherwise in writing;

14         6.  Limited confidentiality, unless waived in writing

15  by a party. This limited confidentiality will prevent

16  disclosure that the seller will accept a price less than the

17  asking or listed price, that the buyer will pay a price

18  greater than the price submitted in a written offer, of the

19  motivation of any party for selling or buying property, that a

20  seller or buyer will agree to financing terms other than those

21  offered, or of any other information requested by a party to

22  remain confidential; and

23         7.  Any additional duties that are mutually agreed to

24  with a party.

25         (b)  Disclosure requirements.--Duties of a transaction

26  broker must be fully described and disclosed in writing to a

27  buyer or seller either as a separate and distinct disclosure

28  document or included as part of another document such as a

29  listing agreement or agreement for representation. The

30  disclosure must be made before, or at the time of, entering

31  into a listing agreement or an agreement for representation.

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  1  When incorporated into other documents, the required notice

  2  must be of the same size type, or larger, as other provisions

  3  of the document and must be conspicuous in its placement so as

  4  to advise customers of the duties of limited representation,

  5  except that the first sentence of the information identified

  6  in paragraph (c) must be printed in uppercase and bold type.

  7         (c)  Contents of disclosure.--The required notice given

  8  under paragraph (b) must include the following information in

  9  the following form:

10

11                         IMPORTANT NOTICE

12

13  FLORIDA LAW REQUIRES THAT REAL ESTATE LICENSEES PROVIDE THIS

14  NOTICE TO ALL POTENTIAL SELLERS AND BUYERS OF REAL ESTATE.

15

16  You should not assume that any real estate broker or

17  salesperson represents you unless you agree to engage a real

18  estate licensee in an authorized brokerage relationship,

19  either as a single agent or as a transaction broker.  You are

20  advised not to disclose any information you want to be held in

21  confidence until you make a decision on representation.

22

23                    TRANSACTION BROKER NOTICE

24

25  FLORIDA LAW REQUIRES THAT REAL ESTATE LICENSEES OPERATING AS

26  TRANSACTION BROKERS DISCLOSE TO BUYERS AND SELLERS THEIR ROLE

27  AND DUTIES IN PROVIDING A LIMITED FORM OF REPRESENTATION.

28

29  As a transaction broker, ................ (insert name of Real

30  Estate Firm and its Associates), provides to you a limited

31  form of representation that includes the following duties:

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  1         1.  Dealing honestly and fairly;

  2         2.  Accounting for all funds;

  3         3.  Using skill, care, and diligence in the

  4  transaction;

  5         4.  Disclosing all known facts that materially affect

  6  the value of residential real property and are not readily

  7  observable to the buyer;

  8         5.  Presenting all offers and counteroffers in a timely

  9  manner, unless a party has previously directed the licensee

10  otherwise in writing;

11         6.  Limited confidentiality, unless waived in writing

12  by a party. This limited confidentiality will prevent

13  disclosure that the seller will accept a price less than the

14  asking or listed price, that the buyer will pay a price

15  greater than the price submitted in a written offer, of the

16  motivation of any party for selling or buying property, that a

17  seller or buyer will agree to financing terms other than those

18  offered, or of any other information requested by a party to

19  remain confidential; and

20         7.  Any additional duties that are entered into by this

21  or by separate written agreement.

22

23  Limited representation means that a buyer or seller is not

24  responsible for the acts of the licensee. Additionally,

25  parties are giving up their rights to the undivided loyalty of

26  the licensee. This aspect of limited representation allows a

27  licensee to facilitate a real estate transaction by assisting

28  both the buyer and the seller, but a licensee will not work to

29  represent one party to the detriment of the other party when

30  acting as a transaction broker to both parties.

31

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  1  ........                     ..............................

  2  Date                         Signature

  3

  4                               ..............................

  5                               Signature

  6

  7         (3)  SINGLE AGENT RELATIONSHIP.--

  8         (a)  Single agent - duties.--The duties of a real

  9  estate licensee owed to a buyer or seller who engages the real

10  estate licensee as a single agent include the following:

11         1.  Dealing honestly and fairly;

12         2.  Loyalty;

13         3.  Confidentiality;

14         4.  Obedience;

15         5.  Full disclosure;

16         6.  Accounting for all funds;

17         7.  Skill, care, and diligence in the transaction;

18         8.  Presenting all offers and counteroffers in a timely

19  manner, unless a party has previously directed the licensee

20  otherwise in writing; and

21         9.  Disclosing all known facts that materially affect

22  the value of residential real property and are not readily

23  observable.

24         (b)  Disclosure requirements.--

25         1.  Single agent disclosure.--Duties of a single agent

26  must be fully described and disclosed in writing to a buyer or

27  seller either as a separate and distinct disclosure document

28  or included as part of another document such as a listing

29  agreement or other agreement for representation. The

30  disclosure must be made before, or at the time of, entering

31  into a listing agreement or an agreement for representation.

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  1  When incorporated into other documents, the required notice

  2  must be of the same size type, or larger, as other provisions

  3  of the document and must be conspicuous in its placement so as

  4  to advise customers of the duties of a single agent, except

  5  that the first sentence of the information identified in

  6  paragraph (c) must be printed in uppercase and bold type.

  7         2.  Transition to transaction broker disclosure.--A

  8  single agent relationship may be changed to a transaction

  9  broker relationship at any time during the relationship

10  between an agent and principal, provided the agent gives the

11  disclosure required under paragraph (2)(b) and the principal

12  gives to the agent consent as required under subparagraph

13  (c)2. before a change in relationship. This disclosure must be

14  in writing to the principal either as a separate and distinct

15  document or included as part of other documents such as a

16  listing agreement or other agreements for representation. When

17  incorporated into other documents, the required notice must be

18  of the same size type, or larger, as other provisions of the

19  document and must be conspicuous in its placement so as to

20  advise customers of the duties of limited representation,

21  except that the first sentence of the information identified

22  in subparagraph (c)2. must be printed in uppercase and bold

23  type.

24         (c)  Contents of disclosure.--

25         1.  Single agent duties disclosure.--The notice

26  required under subparagraph (b)1. must include the following

27  information in the following form:

28

29                         IMPORTANT NOTICE

30

31

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  1  FLORIDA LAW REQUIRES THAT REAL ESTATE LICENSEES PROVIDE THIS

  2  NOTICE TO ALL POTENTIAL SELLERS AND BUYERS OF REAL ESTATE.

  3

  4  You should not assume that any real estate broker or

  5  salesperson represents you unless you agree to engage a real

  6  estate licensee in an authorized brokerage relationship,

  7  either as a single agent or as a transaction broker.  You are

  8  advised not to disclose any information you want to be held in

  9  confidence until you make a decision on representation.

10

11                       SINGLE AGENT NOTICE

12

13  FLORIDA LAW REQUIRES THAT REAL ESTATE LICENSEES OPERATING AS

14  SINGLE AGENTS DISCLOSE TO BUYERS AND SELLERS THEIR DUTIES.

15

16         As a single agent, ................ (insert name of

17  Real Estate Entity and its Associates) owe to you the

18  following duties:

19         1.  Dealing honestly and fairly;

20         2.  Loyalty;

21         3.  Confidentiality;

22         4.  Obedience;

23         5.  Full disclosure;

24         6.  Accounting for all funds;

25         7.  Skill, care, and diligence in the transaction;

26         8.  Presenting all offers and counteroffers in a timely

27  manner, unless a party has previously directed the licensee

28  otherwise in writing; and

29         9.  Disclosing all known facts that materially affect

30  the value of residential real property and are not readily

31  observable.

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  1

  2

  3  ........                     ..............................

  4  Date                         Signature

  5

  6         2.  Transition disclosure.--The notice required under

  7  subparagraph (b)2. must include the following information in

  8  the following form as well as the information required in

  9  paragraph (2)(c):

10

11                     CONSENT TO TRANSITION TO

12                        TRANSACTION BROKER

13

14  FLORIDA LAW ALLOWS REAL ESTATE LICENSEES WHO REPRESENT A BUYER

15  OR SELLER AS A SINGLE AGENT TO CHANGE FROM A SINGLE AGENT

16  RELATIONSHIP TO A TRANSACTION BROKERAGE RELATIONSHIP IN ORDER

17  FOR THE LICENSEE TO ASSIST BOTH PARTIES IN A REAL ESTATE

18  TRANSACTION BY PROVIDING A LIMITED FORM OF REPRESENTATION TO

19  BOTH THE BUYER AND THE SELLER. THIS CHANGE IN RELATIONSHIP

20  CANNOT OCCUR WITHOUT YOUR PRIOR WRITTEN CONSENT.

21

22  ........I agree that my agent may assume the role and duties

23  of a transaction broker. [must be initialed or signed]

24

25         (5)  APPLICABILITY.--

26         (a)  Residential sales.--The real estate licensee

27  disclosure requirements of this section apply to all

28  residential sales. As used in this subsection, the term

29  "residential sale" means the sale of improved residential

30  property of four units or fewer, the sale of unimproved

31

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  1  residential property intended for use of four units or fewer,

  2  or the sale of agricultural property of 10 acres or fewer.

  3         (b)  Disclosure limitations.--The real estate licensee

  4  disclosure requirements of this section do not apply to:

  5  nonresidential transactions; the rental or leasing of real

  6  property, unless an option to purchase all or a portion of the

  7  property improved with four or fewer residential units is

  8  given; auctions; appraisals; and dispositions of any interest

  9  in business enterprises or business opportunities, except for

10  property with four or fewer residential units.

11         Section 10.  Section 475.2801, Florida Statutes, 1998

12  Supplement, is amended to read:

13         475.2801  Rules.--The commission may adopt rules

14  establishing disciplinary guidelines, notices of

15  noncompliance, and citations for violations of ss. 475.2755,

16  475.276, and 475.278.

17         Section 11.  Subsection (1) of section 475.482, Florida

18  Statutes, 1998 Supplement, is amended to read:

19         475.482  Real Estate Recovery Fund.--There is created

20  the Florida Real Estate Recovery Fund as a separate account in

21  the Professional Regulation Trust Fund.

22         (1)  The Florida Real Estate Recovery Fund shall be

23  disbursed as provided in s. 475.484, on order of the

24  commission, as reimbursement to any person, partnership, or

25  corporation adjudged by a court of competent civil

26  jurisdiction in this state to have suffered monetary damages

27  by reason of any act committed, as a part of any real estate

28  brokerage transaction involving real property in this state,

29  by any broker or salesperson who:

30

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  1         (a)  Was, at the time the alleged act was committed,

  2  the holder of a current, valid, active real estate license

  3  issued under this part;

  4         (b)  Was neither the seller, buyer, landlord, or tenant

  5  in the transaction nor an officer or a director of a

  6  corporation, or a member of a partnership, a member of a

  7  limited liability company, or a partner of a limited liability

  8  partnership which was the seller, buyer, landlord, or tenant

  9  in the transaction; and

10         (c)  Was acting solely in the capacity of a real estate

11  licensee in the transaction;

12

13  provided the act was a violation proscribed in s. 475.25 or s.

14  475.42.

15         Section 12.  Subsections (1) and (2) of section

16  475.483, Florida Statutes, are amended to read:

17         475.483  Conditions for recovery; eligibility.--

18         (1)  Any person is eligible to seek recovery from the

19  Real Estate Recovery Fund if:

20         (a)  Such person has received a final judgment in a

21  court of competent civil jurisdiction in this state against an

22  individual broker or salesperson in any action wherein the

23  cause of action was based on a real estate brokerage

24  transaction. If such person is unable to secure a final

25  judgment against a licensee due to the death of the licensee,

26  the commission may waive the requirement for a final judgment.

27  The filing of a bankruptcy petition by a broker or salesperson

28  does not relieve a claimant from the obligation to obtain a

29  final judgment against the licensee. In this instance, the

30  claimant must seek to have assets involving the real estate

31  transaction that gave rise to the claim removed from the

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  1  bankruptcy proceedings so that the matter might be heard in a

  2  court of competent civil jurisdiction in this state. If, after

  3  due diligence, the claimant is precluded by action of the

  4  bankruptcy court from securing a final judgment against the

  5  licensee, the commission may waive the requirement for a final

  6  judgment.

  7         (b)  At the time the action was commenced, such person

  8  gave notice thereof to the commission by certified mail;

  9  except that, if no notice has been given to the commission,

10  the claim can still be honored if, in the opinion of the

11  commission, the claim is otherwise valid.

12         (c)  A claim for recovery is made within 2 years from

13  the time of the act giving rise to the claim or within 2 years

14  from the time the act is discovered or should have been

15  discovered with the exercise of due diligence. In no event may

16  a claim for recovery be made more than 4 years after the date

17  of the act giving rise to the claim.

18         (d)1.  Such person has caused to be issued a writ of

19  execution upon such judgment, and the person has executed an

20  affidavit showing that no personal or real property of the

21  judgment debtor liable to be levied upon in satisfaction of

22  the judgment can be found or that the amount realized on the

23  sale of the judgment debtor's property pursuant to such

24  execution was insufficient to satisfy the judgment; or

25         2.  If such person is unable to comply with

26  subparagraph 1. for a valid reason to be determined by the

27  commission, such person has made all reasonable searches and

28  inquiries to ascertain whether the judgment debtor is

29  possessed of real or personal property or other assets subject

30  to being sold or applied in satisfaction of the judgment and

31  by her or his search the person has discovered no property or

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  1  assets or she or he has discovered property and assets and has

  2  taken all necessary action and proceedings for the application

  3  thereof to the judgment but the amount thereby realized was

  4  insufficient to satisfy the judgment.

  5         (e)  Any amounts recovered by such person from the

  6  judgment debtor, or from any other source, have been applied

  7  to the damages awarded by the court.

  8         (f)  Such person is not a person who is precluded by

  9  this act from making a claim for recovery.

10         (g)  Such person has executed an affidavit showing that

11  the final judgment is not on appeal or, if it was the subject

12  of an appeal, that the appellate proceedings have concluded

13  and the outcome of the appeal.

14         (2)  A person is not qualified to make a claim for

15  recovery from the Real Estate Recovery Fund, if:

16         (a)  Such person is the spouse of the judgment debtor

17  or a personal representative of such spouse;

18         (b)  Such person is a licensed broker or salesperson

19  who acted as a single the agent or transaction broker in the

20  transaction that is the subject of the claim;

21         (c)  Such person's claim is based upon a real estate

22  transaction in which the licensed broker or salesperson was

23  the owner of or controlled the property involved in the

24  transaction; in which the licensee was dealing for the

25  licensee's own account; or in which the licensee was not

26  acting as a broker or salesperson;

27         (d)  Such person's claim is based upon a real estate

28  transaction in which the broker or salesperson did not hold a

29  valid, current, and active license at the time of the real

30  estate transaction; or

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  1         (e)  The judgment is against a real estate brokerage

  2  corporation, or partnership, limited liability company, or

  3  limited liability partnership.

  4         Section 13.  Section 475.5015, Florida Statutes, 1998

  5  Supplement, is amended to read:

  6         475.5015  Brokerage business records.--Each broker

  7  shall keep and make available to the department such books,

  8  accounts, and records as will enable the department to

  9  determine whether such broker is in compliance with the

10  provisions of this chapter.  Each broker shall preserve at

11  least one legible copy of all books, accounts, and records

12  pertaining to her or his real estate brokerage business for at

13  least 5 years from the date of receipt of any money, fund,

14  deposit, check, or draft entrusted to the broker or, in the

15  event no funds are entrusted to the broker, for at least 5

16  years from the date of execution by any party of any listing

17  agreement, offer to purchase, rental property management

18  agreement, rental or lease agreement, or any other written or

19  verbal agreement which engages the services of the broker.  If

20  any brokerage record has been the subject of or has served as

21  evidence for litigation, relevant books, accounts, and records

22  must be retained for at least 2 years after the conclusion of

23  the civil action or the conclusion of any appellate

24  proceeding, whichever is later, but in no case less than a

25  total of 5 years as set above. Disclosure documents required

26  under ss. 475.2755, 475.276, and 475.278 shall be retained by

27  the real estate licensee in all transactions that result in a

28  written contract to purchase and sell real property.

29         Section 14.  This act shall take effect October 1,

30  1999.

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