0001| SENATE BILL 137 | 0002| 43RD LEGISLATURE - STATE OF NEW MEXICO - SECOND SESSION, 1998 | 0003| INTRODUCED BY | 0004| MARK L. BOITANO | 0005| | 0006| | 0007| | 0008| | 0009| | 0010| AN ACT | 0011| RELATING TO THE REAL ESTATE COMMISSION; CREATING THE REAL | 0012| ESTATE COMMISSION FUND; CHANGING AMOUNTS AUTHORIZED TO BE | 0013| CHARGED AS FEES; CHANGING TERMINOLOGY RELATED TO CONTINUING | 0014| EDUCATION; CHANGING THE SHORT TITLE PROVISION OF THE REAL | 0015| ESTATE RECOVERY FUND ACT. | 0016| | 0017| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO: | 0018| Section 1. Section 61-29-4 NMSA 1978 (being Laws 1959, | 0019| Chapter 226, Section 3, as amended) is amended to read: | 0020| "61-29-4. CREATION OF COMMISSION--POWERS AND DUTIES.-- | 0021| ~[There is created]~ | 0022| |A.| The New Mexico real estate commission | 0023| ~[called]~ |is created and may be referred to as| "the | 0024| commission" in Chapter 61, Article 29 NMSA 1978. The | 0025| commission ~[shall be appointed by the governor and shall | - 1 - 0001| consist]~ |consists| of five members |appointed by the | 0002| governor|. ~[who shall have been]~ |Members must have been| | 0003| residents of the state for three consecutive years immediately | 0004| prior to their appointment. Four ~[of whom shall have been]~ | 0005| |shall be| real estate brokers licensed in New Mexico and one | 0006| ~[of whom]~ shall be a ~[member of the public]~ |natural | 0007| person| who has never been licensed as a real estate broker or | 0008| salesperson. ~[provided]~ Not more than one member ~[shall]~ | 0009| |may| be from ~[any]~ one county ~[within the state]~. The | 0010| members of the commission shall serve for a period of five | 0011| years or until their successors are appointed and qualified. | 0012| Members |appointed| to fill vacancies shall ~[be appointed]~ | 0013| |serve| for ~[any]~ |the| unexpired term. The governor may | 0014| remove any member for cause. | 0015| |B.| The commission ~[shall possess all]~ |has| | 0016| the powers and ~[perform all the]~ duties prescribed by | 0017| Chapter 61, Article 29 NMSA 1978 and ~[as otherwise provided]~ | 0018| |prescribed| by ~[law, and]~ |other laws.| It ~[is expressly | 0019| vested with]~ |has the| power ~[and authority]~ to make and | 0020| enforce ~[any]~ rules ~[and regulations]~ to carry out the | 0021| provisions of ~[that article]~ |Chapter 61, Article 29 NMSA | 0022| 1978|. Prior to ~[any]~ final action on any proposed changes | 0023| or amendments to the rules ~[and regulations]~ of the | 0024| commission, the commission ~[may]~ |shall| publish notice of | 0025| the proposed action in its official publication, distribute | - 2 - 0001| the publication to each active licensee and give the time and | 0002| place for a public hearing on the proposed changes. The | 0003| hearing shall be held at least thirty days prior to any | 0004| proposed final action. Any changes or amendments to the rules | 0005| ~[and regulations]~ shall be filed ~[in accordance with the | 0006| procedures of]~ |pursuant to| the State Rules Act ~[and shall | 0007| become effective thirty days after notification to all active | 0008| licensees of the filing of the changes or amendments]~. The | 0009| commission may employ any staff it deems necessary to assist | 0010| in carrying out its duties and in keeping its records. | 0011| |C. The "real estate commission fund" is created | 0012| in the state treasury. Money received by the commission | 0013| pursuant to law, except money received pursuant to the Real | 0014| Estate Recovery Fund Act, shall be paid to the state treasurer | 0015| to be deposited in the fund and invested. Income from | 0016| investment of the real estate commission fund shall be | 0017| deposited in the fund. Money in the fund is appropriated to | 0018| the commission to be expended in carrying out its duties under | 0019| and administering the provisions of Chapter 61, Article 29 | 0020| NMSA 1978. Balances in the fund do not revert to the general | 0021| fund.|" | 0022| Section 2. Section 61-29-4.1 NMSA 1978 (being Laws 1985, | 0023| Chapter 89, Section 1, as amended) is amended to read: | 0024| "61-29-4.1. ADDITIONAL POWERS OF COMMISSION--CONTINUING | 0025| EDUCATION PROGRAMS--MINIMUM REQUIREMENTS||.--~[In addition to | - 3 - 0001| the powers and duties granted the commission under the | 0002| provisions of Section 61-29-4 NMSA 1978]~ ||The commission | 0003| shall adopt ~[regulations]~ |rules| providing for continuing | 0004| educational programs that offer courses in selling, leasing or | 0005| managing residential, commercial and industrial property as | 0006| well as courses reviewing basic real estate law and practice. | 0007| The ~[regulations]~ |rules| shall require that every licensee | 0008| except licensees who are sixty-five years of age or older and | 0009| who have a minimum of twenty ~[years']~ |years of| | 0010| continuously licensed experience in the selling, leasing or | 0011| managing of real property, as a condition of his license | 0012| renewal, shall successfully complete thirty ~[classroom]~ | 0013| |credit| hours of instruction every three years in courses | 0014| approved by the commission. The ~[regulations]~ |rules| shall | 0015| prescribe areas of specialty or expertise and may require that | 0016| a certain part of the thirty hours of classroom instruction be | 0017| devoted to courses in the area of a licensee's specialty or | 0018| expertise." | 0019| Section 3. Section 61-29-8 NMSA 1978 (being Laws 1959, | 0020| Chapter 226, Section 7, as amended) is amended to read: | 0021| "61-29-8. LICENSE FEES--DISPOSITION.-- | 0022| A. The following fees shall be charged by the | 0023| commission and paid into the real estate commission fund: | 0024| (1) for each examination, a fee of sixty | 0025| dollars ($60.00); | - 4 - 0001| (2) for each broker's license issued, a fee | 0002| ~[of]~ |not to exceed| one hundred eighty dollars ($180) and | 0003| for each renewal thereof, a fee ~[of]~ |not to exceed| one | 0004| hundred eighty dollars ($180); | 0005| (3) for each salesperson's license issued, a | 0006| fee ~[of]~ |not to exceed| one hundred eighty dollars ($180) | 0007| and for each renewal thereof, a fee ~[of]~ |not to exceed| one | 0008| hundred eighty dollars ($180); | 0009| (4) subject to the provisions of Paragraph | 0010| (11) of this subsection, for each change of place of business | 0011| or change of employer or contractual associate, a fee of | 0012| twenty dollars ($20.00); | 0013| (5) for each duplicate license, where the | 0014| license is lost or destroyed and affidavit is made thereof, a | 0015| fee of twenty dollars ($20.00); | 0016| (6) for each license history, a fee of | 0017| twenty-five dollars ($25.00); | 0018| (7) for copying of documents by the | 0019| commission, a fee ~[set by the commission]~ not to exceed one | 0020| dollar ($1.00) per copy; | 0021| (8) for each additional license law and rules | 0022| ~[and regulations]~ booklet, a fee ~[set by the commission]~ | 0023| not to exceed ten dollars ($10.00) per booklet; | 0024| (9) for each additional directory of licensed | 0025| real estate brokers and salespersons, a fee ~[set by the | - 5 - 0001| commission]~ not to exceed twenty dollars ($20.00); | 0002| (10) for each supplement to the directory of | 0003| licensed real estate brokers and salespersons, a fee ~[set by | 0004| the commission]~ not to exceed twenty dollars ($20.00); and | 0005| (11) when a license must be reissued for a | 0006| salesperson because of change of address of the licensed | 0007| broker's office, death of the licensed broker when a successor | 0008| licensed broker is replacing the decedent and the salesperson | 0009| remains in the office or change of name of the office or the | 0010| entity of the licensed broker, the licensed broker or | 0011| successor licensed broker as the case may be shall pay to the | 0012| commission as the affected salesperson's license reissue fee | 0013| twenty dollars ($20.00), but if there are eleven or more | 0014| affected salespersons in the licensed broker's office, the | 0015| total fee paid to effect reissuance of all of those licenses | 0016| shall not exceed two hundred dollars ($200). | 0017| B. All fees ~[set]~ |charged| by the commission | 0018| shall be set by rule ~[or regulation and only after all | 0019| requirements have been met as prescribed by Chapter 61, | 0020| Article 29 NMSA 1978. Any changes or amendments to the rules | 0021| and regulations shall be filed in accordance with the | 0022| provisions of the State Rules Act]~. | 0023| C. The commission shall deposit all money received | 0024| by it from fees in accordance with the provisions of Chapter | 0025| 61, Article 29 NMSA 1978 with the state treasurer, who shall | - 6 - 0001| keep that money in ~[a separate fund to be known as]~ the | 0002| "real estate commission fund", and money so deposited in that | 0003| fund is appropriated for the purpose of carrying out the | 0004| provisions of Chapter 61, Article 29 NMSA 1978 or to maintain | 0005| the real estate recovery fund as required by the Real Estate | 0006| Recovery Fund Act and shall be paid out of the fund upon the | 0007| vouchers of the president and secretary of the commission; | 0008| provided that the total fees and charges collected and paid | 0009| into the state treasury and any money so deposited shall be | 0010| expended only for the purposes authorized by Chapter 61, | 0011| Article 29 NMSA 1978. | 0012| D. The commission shall by ~[regulation]~ |rule| | 0013| provide for a proportionate refund of the license issuance fee | 0014| or the license renewal fee if the license is issued or renewed | 0015| for a period of ~[two or]~ three years pursuant to Section | 0016| 61-29-11 NMSA 1978 and is terminated with more than one year | 0017| remaining." | 0018| Section 4. Section 61-29-12 NMSA 1978 (being Laws 1959, | 0019| Chapter 226, Section 11, as amended) is amended to read: | 0020| "61-29-12. REFUSAL, SUSPENSION OR REVOCATION OF LICENSE | 0021| FOR CAUSES ENUMERATED.-- | 0022| |A.| The commission ~[shall have the power to]~ | 0023| |may| refuse ~[a license for cause or to]~ |to issue|, suspend | 0024| or revoke a license ~[at any time where]~ |if| the licensee | 0025| has ~[by false or fraudulent representations]~ obtained a | - 7 - 0001| license |by false or fraudulent representations| or ~[where | 0002| the licensee]~ in performing or attempting to perform any of | 0003| the actions ~[mentioned]~ |specified| in Chapter 61, Article | 0004| 29 NMSA 1978 ~[is deemed to be guilty of]~ |has|: | 0005| ~[A. ||making]~ |(1) made| a substantial | 0006| misrepresentation; | 0007| ~[B. pursuing]~ |(2) pursued| a continued | 0008| and flagrant course of misrepresentation; ~[making]~ |made| | 0009| false promises through agents, salespersons, advertising or | 0010| otherwise; or ~[using]~ |used| any trade name or insignia of | 0011| membership in any real estate organization of which the | 0012| licensee is not a member; | 0013| ~[C. paying]~ |(3) paid| or ~[receiving]~ | 0014| |received| any rebate, profit, compensation or commission to | 0015| or from any unlicensed person except his principal or other | 0016| party to the transaction, and then only with his principal's | 0017| written consent; | 0018| ~[D. representing]~ |(4) represented| or | 0019| ~[attempting]~ |attempted| to represent a real estate broker | 0020| other than the broker with whom he is licensed without the | 0021| express knowledge and consent of ~[the]~ |that| broker; | 0022| ~[E. failing]~ |(5) failed| within a | 0023| reasonable time to account for or to remit any money coming | 0024| into his possession that belongs to others, ~[commingling]~ | 0025| |commingled| funds of others with his own or ~[failing]~ | - 8 - 0001| |failed| to keep ~[such]~ funds of others in an escrow or | 0002| trustee account or ~[failing]~ |failed| to furnish legible | 0003| copies of all listing and sales contracts to all parties | 0004| executing them; | 0005| ~[F. conviction]~ |(6) been convicted| in | 0006| any court of competent jurisdiction of a felony or ~[any]~ | 0007| |an| offense involving moral turpitude; | 0008| ~[G. employing]~ |(7) employed| or | 0009| ~[compensating]~ |compensated| directly or indirectly ~[any]~ | 0010| |a| person for performing any of the acts regulated by Chapter | 0011| 61, Article 29 NMSA 1978 ~[who is]~ |if that person was| not a | 0012| licensed broker or licensed salesperson ~[provided, however, | 0013| that]~ |at the time of employment or compensation; except| a | 0014| licensed broker may pay a commission to a ~[licensed]~ broker | 0015| ~[of]~ |licensed in| another state ~[provided further that]~ | 0016| |but| the nonresident broker ~[does]~ |shall| not conduct in | 0017| this state any of the negotiations for which a fee, | 0018| compensation or commission is paid except in cooperation with | 0019| a licensed broker of this state; | 0020| ~[H. failing]~ |(8)| if a broker, |failed| | 0021| to place as soon after receipt as is practicably possible any | 0022| deposit money or other money received by him in a real estate | 0023| transaction in a custodial, trust or escrow account maintained | 0024| by him in a bank or savings and loan institution or title | 0025| company authorized to do business in this state, in which the | - 9 - 0001| funds shall be kept until the transaction is consummated or | 0002| otherwise terminated, at which time a full accounting of the | 0003| funds shall be made by the broker. Records relative to the | 0004| deposit, maintenance and withdrawal of ~[such]~ |those| funds | 0005| shall contain information as may be prescribed by the rules | 0006| ~[and regulations]~ of the commission. Nothing in this | 0007| subsection ~[shall prohibit any]~ |prohibits a| broker from | 0008| depositing nontrust funds in an amount not to exceed the | 0009| required minimum balance in each trust account so as to meet | 0010| the minimum balance requirements of the bank necessary to | 0011| maintain the account and avoid charges. This minimum balance | 0012| deposit shall not be considered commingling and shall not be | 0013| subject to levy, attachment or garnishment. This subsection | 0014| ~[however, shall]~ |does| not prohibit a broker from | 0015| depositing any deposit money or other money received by him in | 0016| a real estate transaction with another cooperating broker who | 0017| shall in turn comply with this subsection; | 0018| ~[I. failing]~ |(9)| if a salesperson, | 0019| |failed| to place as soon after receipt as is practicably | 0020| possible in the custody of his registered broker any deposit | 0021| money or other money entrusted to him by any person dealing | 0022| with him as the representative of his registered broker; | 0023| ~[J. violating any provisions]~ |(10) | 0024| violated a provision| of Chapter 61, Article 29 NMSA 1978 or | 0025| ~[any reasonable]~ |a| rule ~[or regulation]~ |adopted and| | - 10 - 0001| promulgated by the commission ~[in the interests of the public | 0002| and in conformance with the provisions of Chapter 61, Article | 0003| 29 NMSA 1978]~; or | 0004| ~[K. any other conduct]~ |(11) committed | 0005| acts,| whether of the same or different character from that | 0006| specified in this section, that ~[is]~ |were| related to |his| | 0007| dealings as a real estate broker or real estate salesperson | 0008| and that ~[constitutes]~ |constituted| or ~[demonstrates]~ | 0009| |demonstrated| bad faith, incompetency, untrustworthiness, | 0010| impropriety, fraud, dishonesty, negligence or ~[any]~ |an| | 0011| unlawful act. | 0012| ~[Any]~ |B. An| unlawful act or violation of ~[any | 0013| of the provisions]~ |a provision| of Chapter 61, Article 29 | 0014| NMSA 1978 by any real estate salesperson, employee, partner or | 0015| associate of a licensed real estate broker shall not be cause | 0016| for the revocation of a license of any real estate broker | 0017| unless it appears to the satisfaction of the commission that | 0018| the real estate broker had guilty knowledge of the unlawful | 0019| act or violation." | 0020| Section 5. Section 61-29-20 NMSA 1978 (being Laws 1980, | 0021| Chapter 82, Section 1) is amended to read: | 0022| "61-29-20. SHORT TITLE.--Sections ~[1 through 10 of this | 0023| act]~ |61-29-20 through 61-29-29 NMSA 1978| may be cited as | 0024| the "Real Estate Recovery Fund Act"." | 0025| Section 6. EFFECTIVE DATE.--The effective date of the | - 11 - 0001| provisions of this act is July 1, 1998. | 0002|  |