44TH LEGISLATURE - STATE OF NEW MEXICO - FIRST SESSION, 1999
RELATING TO LICENSING; EXTENDING THE EXISTENCE OF THE NEW MEXICO REAL ESTATE COMMISSION; CHANGING CERTAIN PROVISIONS FOR LICENSING, FEES AND MISCONDUCT OF REAL ESTATE LICENSEES; CREATING THE REAL ESTATE COMMISSION FUND; AMENDING AND REPEALING SECTIONS OF THE NMSA 1978.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. Section 61-29-1 NMSA 1978 (being Laws 1959, Chapter 226, Section 1, as amended) is amended to read:
"61-29-1. PROHIBITION.--[It is unlawful for any] No
person [business association or corporation to] may engage in
the business of, act in the capacity of, advertise [or],
display in any manner or [otherwise] assume to engage in the
business of or act as a real estate broker or real estate
[salesman within] salesperson in this state without a license
issued by the [New Mexico real estate] commission."
Section 2. Section 61-29-2 NMSA 1978 (being Laws 1959, Chapter 226, Section 2, as amended) is amended to read:
"61-29-2. DEFINITIONS AND EXCEPTIONS.--
[A. A real estate "broker" within the meaning of
Chapter 61, Article 29 NMSA 1978, is a person, business
association or corporation who for a salary, fee, commission
or valuable consideration lists, sells or offers for sale,
buys or offers to buy or negotiates the purchase or sale or
exchange of real estate or who leases or offers to lease, or
rents or offers for rent or auctions or offers or attempts or
agrees to auction real estate or who buys or offers to buy,
sell or offers to sell or otherwise deals in options on real
estate or advertises or holds himself out as being engaged in
the business of buying, selling, exchanging, renting, leasing,
auctioning or dealing with options on any real estate or the
improvement thereon for others, as a whole or partial
vocation. The term "broker" also includes any person employed
by or on behalf of the owner of real estate to conduct the
sale, leasing or other disposition thereof at a salary or fee,
commission or any other consideration. It also includes any
person who engages in the business of charging an advance fee
or contracting for collection of a fee in connection with any
contract whereby he undertakes primarily to promote the sale
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. The term]
A. As used in Chapter 61, Article 29 NMSA 1978:
(1) "broker" means a person who:
(a) for consideration from another, lists, sells or offers to sell real estate; buys or offers to buy real estate; or negotiates the purchase, sale or exchange of real estate or options on real estate;
(b) leases, rents or auctions or offers to lease, rent or auction real estate;
(c) advertises or holds himself out as being engaged in the business of buying, selling, exchanging, renting, leasing, auctioning or dealing with options on real estate for others as a whole or partial vocation; or
(d) engages in the business of charging an advance fee or contracting for collection of a fee in connection with a contract under which he undertakes primarily to promote the sale of real estate through its listing in a publication issued primarily for that purpose or for the purpose of referral of information concerning real estate to brokers;
(2) "commission" means the New Mexico real estate commission created pursuant to Section 61-29-4 NMSA 1978;
(3) "license" means a real estate broker's license issued by the commission; and
(4) "real estate" [as used in Chapter 61,
Article 29 NMSA 1978, shall include] includes leaseholds and
other interest less than leaseholds, including rights to use
property [Resident managers of apartment buildings are not
required to be licensed, provided they do not carry on any
other real estate activity and do not serve as a resident
manager for more than one employer]; and
[B. A real estate] "salesperson" [within the
meaning of Chapter 61, Article 29 NMSA 1978, is any] means a
person who for a compensation or valuable consideration is
associated with or engaged under contract either directly or
indirectly by or on behalf of a licensed broker to participate
in any activity included in Subparagraph (a) or (b) of
Paragraph (1) of this subsection [A of this section] or in the
pursuance of [such] the broker's business, as a whole or
partial vocation.
[C. Any one] B. A single act of a person
[business association or corporation] in performing or
attempting to perform an activity [set forth] described in
Subparagraphs (a) through (d) of Paragraph (1) of Subsection A
of this section [shall constitute] constitutes the person
[business association or corporation a real estate] a broker.
[or] A single act of a person in performing or attempting to
perform an activity described in Subparagraph (a) or (b) of
Paragraph (1) of Subsection A of this section constitutes the
person a real estate salesperson.
[D.] C. The provisions of Chapter 61, Article 29
NMSA 1978 [shall] do not apply to [be construed to include,
held to include or apply to]:
(1) [any] a person [business association or
corporation] who as owner or lessor performs any of the
activities included in this section with reference to property
owned or leased by him, the employees of the owner or lessor
or the employees of a [real estate] broker acting on behalf of
the owner or lessor, with respect to the property owned or
leased, [where] if the acts are performed in the regular
course of or incident to the management of the property and
the investments, except [where] when the sale or offering for
sale or the lease or offering for lease of the property
constitutes a subdivision containing one hundred or more
parcels;
(2) isolated or sporadic transactions not
exceeding two transactions annually [where] in which a person
acts as attorney-in-fact under a duly executed power of
attorney delivered by an owner authorizing the person to
finally consummate and to perform under any contract the sale,
leasing or exchange of real estate on behalf of the owner; and
the owner or attorney-in-fact have not used a power of
attorney for the purpose of evading the provisions of Chapter
61, Article 29 NMSA 1978;
(3) transactions where a person acts as
attorney-in-fact under a duly executed power of attorney
delivered by an owner related to the attorney-in-fact [by up
to] within the fourth degree of consanguinity or closer,
authorizing the person to finally consummate and to perform
under any contract for the sale, leasing or exchange of real
estate on behalf of the owner;
(4) the services rendered by an attorney at law in the performance of his duties as an attorney at law;
(5) a person acting in the capacity of a receiver, trustee in bankruptcy, administrator or executor, a person selling real estate pursuant to an order of any court or a trustee acting under a trust agreement, deed of trust or will or the regular salaried employee of a trustee;
(6) the activities of a salaried employee of a governmental agency acting within the scope of his employment; or
(7) persons who deal exclusively in mineral leases or the sale or purchase of mineral rights or royalties in any case in which the fee to the land or the surface rights are in no way involved in the transaction."
Section 3. Section 61-29-4 NMSA 1978 (being Laws 1959, Chapter 226, Section 3, as amended) is amended to read:
"61-29-4. CREATION OF COMMISSION--POWERS AND DUTIES.--[There is created]
A. The New Mexico real estate commission [called
"the commission" in Chapter 61, Article 29 NMSA 1978] is
created. The commission [shall be appointed by the governor
and shall consist] consists of five members [who shall have
been] appointed by the governor. Members must have been
residents of the state for three consecutive years immediately
prior to their appointment. Four [of whom shall have been
real estate] shall be brokers licensed in New Mexico and one
[of whom] shall be a [member of the public] natural person who
has never been licensed as a real estate broker or salesperson
[provided] pursuant to Chapter 61, Article 29 NMSA 1978. Not
more than one member [shall] may be from [any] one county
[within the state]. The members of the commission shall serve
for a period of five years or until their successors are
appointed and qualified. Members appointed to fill vacancies
shall [be appointed] serve for [any] the unexpired term. The
governor may remove any member for cause.
B. The commission [shall possess all] has the
powers and [perform all the] duties prescribed by Chapter 61,
Article 29 NMSA 1978 and [as otherwise provided] prescribed by
[law, and] other laws. It [is expressly vested with] has the
power [and authority] to make and enforce [any] rules [and
regulations] to carry out the provisions of [that article]
Chapter 61, Article 29 NMSA 1978. Prior to [any] final action
on any proposed changes or amendments to the rules [and
regulations] of the commission, the commission [may] shall
publish notice of the proposed action in its official
publication, distribute the publication to each active
licensee and give the time and place for a public hearing on
the proposed changes. The hearing shall be held at least
thirty days prior to any proposed final action. Any changes
or amendments to the rules [and regulations] shall be filed
[in accordance with the procedures of] pursuant to the State
Rules Act [and shall become effective thirty days after
notification to all active licensees of the filing of the
changes or amendments]. The commission may employ any staff
it deems necessary to assist in carrying out its duties and in
keeping its records.
C. The "real estate commission fund" is created in the state treasury. Money received by the commission pursuant to law, except money received pursuant to the Real Estate Recovery Fund Act, shall be paid to the treasurer to be deposited in the fund and invested. Income from investment of the real estate commission fund shall be deposited in the fund. Money in the fund is appropriated to the commission to be expended in carrying out its duties under and administering the provisions of Chapter 61, Article 29 NMSA 1978. Balances in the fund do not revert to the general fund."
Section 4. Section 61-29-4.1 NMSA 1978 (being Laws 1985, Chapter 89, Section 1, as amended) is amended to read:
"61-29-4.1. ADDITIONAL POWERS OF COMMISSION--CONTINUING
EDUCATION PROGRAMS--MINIMUM REQUIREMENTS.--[In addition to the
powers and duties granted the commission under the provisions
of Section 61-29-4 NMSA 1978] The commission shall adopt
[regulations] rules providing for continuing educational
programs that offer courses in selling, leasing or managing
residential, commercial and industrial property as well as
courses reviewing basic real estate law and practice. The
[regulations] rules shall require that every licensee except
licensees who are sixty-five years of age or older and who
have a minimum of twenty [years'] years of continuously
licensed experience in the selling, leasing or managing of
real property, as a condition of his license renewal, shall
successfully complete thirty [classroom] credit hours of
instruction every three years in courses approved by the
commission. The [regulations] rules shall prescribe areas of
specialty or expertise and may require that a certain part of
the thirty credit hours of classroom instruction be devoted to
courses in the area of a licensee's specialty or expertise."
Section 5. Section 61-29-5 NMSA 1978 (being Laws 1959, Chapter 226, Section 4) is amended to read:
"61-29-5. ORGANIZATION OF COMMISSION.--The commission
shall organize by electing a president, vice president and
secretary from its members. A majority of the commission
[shall constitute] constitutes a quorum and may exercise all
powers and duties devolving upon it and do all things
necessary to carry into effect the provisions of [this act]
Chapter 61, Article 29 NMSA 1978. The [secretary of the]
commission shall keep a record of its proceedings, a register
of persons licensed as real estate brokers and as real estate
[salesmen] salespersons showing the name, place of business of
each and the date and number of his [or her certificate]
license and a record of all licenses [or certificates] issued,
refused, [removed] suspended or revoked. This record shall be
open to public inspection at all reasonable times."
Section 6. Section 61-29-7 NMSA 1978 (being Laws 1959, Chapter 226, Section 6, as amended) is amended to read:
"61-29-7. REIMBURSEMENT AND EXPENSES.--Each member of
the commission shall receive per diem and mileage as provided
in the Per Diem and Mileage Act and shall receive no other
compensation, perquisite or allowance. The commission may
select and appoint an administrator, who shall serve as
executive secretary to the commission on annual salary, to
perform the duties prescribed by [this act] Chapter 61,
Article 29 NMSA 1978 and such additional duties as the
commission may determine. The commission may employ
subordinate officers, stenographers, clerks, an attorney and
such other assistance as may be needed and fix their
compensation to be paid from the real estate commission fund
and [to] purchase such supplies, equipment and records and
[to] incur such other expenses as may be necessary to carry
out the provisions of [this act] Chapter 61, Article 29 NMSA
1978."
Section 7. Section 61-29-8 NMSA 1978 (being Laws 1959, Chapter 226, Section 7, as amended) is amended to read:
"61-29-8. LICENSE FEES [DISPOSITION].--
A. [The following fees shall be charged by the
commission and paid into the real estate commission fund:
(1) for each examination, a fee of sixty
dollars ($60.00);
(2) for each broker's license issued, a fee
of one hundred eighty dollars ($180) and for each renewal
thereof, a fee of one hundred eighty dollars ($180);
(3) for each salesperson's license issued, a
fee of one hundred eighty dollars ($180) and for each renewal
thereof, a fee of one hundred eighty dollars ($180);
(4) subject to the provisions of Paragraph
(11) of this subsection, for each change of place of business
or change of employer or contractual associate, a fee of
twenty dollars ($20.00);
[(5) for each duplicate license, where the
license is lost or destroyed and affidavit is made thereof, a
fee of twenty dollars ($20.00);
(6) for each license history, a fee of
twenty-five dollars ($25.00);
(7) for copying of documents by the
commission, a fee set by the commission not to exceed one
dollar ($1.00) per copy;
(8) for each additional license law and rules
and regulations booklet, a fee set by the commission not to
exceed ten dollars ($10.00) per booklet;
(9) for each additional directory of licensed
real estate brokers and salespersons, a fee set by the
commission not to exceed twenty dollars ($20.00);
(10) for each supplement to the directory of
licensed real estate brokers and salespersons, a fee set by
the commission not to exceed twenty dollars ($20.00);
(11) when a license must be reissued for a
salesperson because of change of address of the licensed
broker's office, death of the licensed broker when a successor
licensed broker is replacing the decedent and the salesperson
remains in the office or change of name of the office or the
entity of the licensed broker, the licensed broker or
successor licensed broker as the case may be shall pay to the
commission as the affected salesperson's license reissue fee
twenty dollars ($20.00), but if there are eleven or more
affected salespersons in the licensed broker's office, the
total fee paid to effect reissuance of all of those licenses
shall not exceed two hundred dollars ($200).
B.] All fees [set] charged by the commission shall
be set by rule [or regulation and only after all requirements
have been met as prescribed by Chapter 61, Article 29 NMSA
1978. Any changes or amendments to the rules and regulations
shall be filed in accordance with the provisions of the State
Rules Act.
C. The commission shall deposit all money received
by it from fees in accordance with the provisions of Chapter
61, Article 29 NMSA 1978 with the state treasurer, who shall
keep that money in a separate fund to be known as the "real
estate commission fund", and money so deposited in that fund
is appropriated for the purpose of carrying out the provisions
of Chapter 61, Article 29 NMSA 1978 or to maintain the real
estate recovery fund as required by the Real Estate Recovery
Fund Act and shall be paid out of the fund upon the vouchers
of the president and secretary of the commission; provided
that the total fees and charges collected and paid into the
state treasury and any money so deposited shall be expended
only for the purposes authorized by Chapter 61, Article 29
NMSA 1978.
D.] but no fee shall not exceed two hundred
dollars ($200). The commission shall by [regulation] rule
provide for a proportionate refund of the license issuance fee
or the license renewal fee if the license is issued or renewed
for a period of [two or] three years pursuant to Section
61-29-11 NMSA 1978 and is terminated with more than one year
remaining."
Section 8. Section 61-29-9 NMSA 1978 (being Laws 1959, Chapter 226, Section 8, as amended) is amended to read:
"61-29-9. QUALIFICATIONS FOR LICENSE.--
A. Licenses shall be granted only to persons who
are deemed by the commission to be of good repute and
competent to transact the business of a real estate broker or
salesperson in [such] a manner [as to] that will safeguard the
interests of the public.
B. [Each] An applicant for a broker's license
shall be a legal resident of the United States, have reached
the age of majority and [have been an actual bona fide] be a
resident of New Mexico [for six months next preceding the
filing of application. Each] at the time of application for
licensing. As a prerequisite for licensing, an applicant for
a real estate broker's license shall:
(1) have [performed actively] been active as
a real estate salesperson in New Mexico for at least twenty-four months out of the preceding thirty-six months immediately
prior to filing application and shall furnish the commission a
certificate that he has completed successfully [ninety
classroom hours of instruction in basic real estate courses] a
broker basics course approved by the commission;
[(2) furnish the commission a certificate
that he has completed successfully one hundred eighty
classroom hours of instruction in basic real estate courses
approved by the commission;
(3)] (2) furnish the commission a certificate
that he is a duly licensed real estate broker in good standing
in another state, providing he has completed successfully
[ninety] sixty classroom hours of instruction in basic real
estate courses approved by the commission; or
[(4)] (3) furnish the commission satisfactory
proof of his equivalent experience in an activity closely
related to or associated with real estate and furnish the
commission a certificate that he has completed successfully
[ninety] sixty classroom hours of instruction in basic real
estate courses approved by the commission.
C. [Each] An applicant for a salesperson's license
shall be a legal resident of the United States, have reached
the age of majority and be a resident of New Mexico [preceding
the filing of] at the time of application [and] for licensing.
As a prerequisite for licensing, an applicant shall furnish
the commission a certificate that he has completed
successfully [sixty] one hundred twenty hours of classroom
[hours of] pre-licensing instruction in basic real estate
courses approved by the commission.
D. The commission shall require [such] the
information [as] it [may deem] deems necessary from every
applicant to determine his honesty, trustworthiness and
competency. Corporations, partnerships or associations [shall
be entitled to] may hold a broker's license issued in the name
of the corporation, partnership or association [provided] if
at least one member of the partnership or association, or one
officer or employee of a corporation, who actively engages in
the real estate business first secures a broker's license.
Such license shall be issued in the name of the corporation,
partnership or association, naming the partner, associate,
officer or employee as qualifying broker for the corporation,
partnership or association."
Section 9. Section 61-29-10 NMSA 1978 (being Laws 1959, Chapter 226, Section 9, as amended) is amended to read:
"61-29-10. APPLICATION FOR LICENSE AND EXAMINATION.--
A. All applications for licenses to act as real
estate brokers and real estate salesmen shall be made in
writing to the [New Mexico real estate] commission and shall
contain such data and information as may be required upon a
form to be prescribed and furnished by the commission. [Such]
The applications shall be accompanied by:
(1) the recommendation of two reputable citizens who own real estate in the county in which the applicant resides or has his place of business, which recommendation shall certify that the applicant is of good moral character, honest and trustworthy; and
(2) the [annual] triennial license fee
prescribed by the commission [which shall not be refunded in
any event].
B. In addition to proof of honesty,
trustworthiness and good reputation, [each] an applicant shall
pass satisfactorily a written examination prepared by or under
the supervision of the commission. The examination shall be
given at [such] the time and [such] places within the state as
the commission shall prescribe; however, the license
examination for brokers shall be given not less than two times
during each calendar year and the examination for salesmen
shall be given not less than six times during each calendar
year. The examination for a broker's license shall include
business ethics, writing, composition, arithmetic, elementary
principles of land economics and appraisals, a general
knowledge of the statutes of this state relating to deeds,
mortgages, contracts of sale, agency and brokerage and the
provisions of Sections 61-29-1 through 61-29-18 NMSA 1978.
The examination for a broker's license shall be of a more
exacting nature and scope and more stringent than the
examination for a salesman's license.
C. No applicant is permitted to engage in the real
estate business [either as a broker or salesman] until he has
satisfactorily passed the examination, complied with the other
requirements of Sections 61-29-1 through 61-29-18 NMSA 1978,
and until a license has been issued to him.
D. Notice of passing or failing to pass the
examination shall be given by the commission to [each] an
applicant not later than three weeks following the date of the
examination.
E. The commission may establish educational
programs and procure qualified personnel, facilities and
materials for the instruction of persons desiring to become
real estate brokers or [salesmen] licensed salespersons or
desiring to improve their proficiency as real estate brokers
or [salesmen] salespersons. The commission may inspect and
accredit educational programs and courses of study and may
establish standards of accreditation for educational programs
conducted in this state. The expenses incurred by the
commission in activities [enabled under] authorized pursuant
to the provisions of this subsection shall not exceed the
total revenues received and accumulated by the commission."
Section 10. Section 61-29-11 NMSA 1978 (being Laws 1959, Chapter 226, Section 10, as amended) is amended to read:
"61-29-11. ISSUANCE, RENEWAL AND SURRENDER OF
LICENSES.--
A. The commission shall issue to each qualified
applicant a [permanent] license in [such] a form and size [as
shall be] prescribed by the commission.
B. [This] The license shall show the name and
address of the licensee and in the case of a real estate
salesperson's license shall show the name of the real estate
broker by whom he is engaged. The license of each real estate
salesperson shall be delivered or mailed to the real estate
broker by whom [such] the real estate salesperson is engaged
and shall be kept in the custody and control of that broker.
C. Every license shall be renewed every three
years on or before the last day of the month following the
licensee's month of birth. Upon written request for renewal
by the licensee, the commission shall certify renewal of
[each] a license [in the absence of any] if there is no reason
or condition that might warrant the refusal of the renewal [of
a license, upon written request for renewal by the licensee].
The licensee shall provide proof of compliance with continuing
education requirements and [receipt of] pay the renewal fee.
[In the event any] If a licensee has not made application for
renewal of license, furnished proof of compliance with
continuing education requirements and paid the renewal fee by
his license renewal date, [the] his license shall expire. The
commission may, in its discretion, require [the] a person
whose license has expired to apply for a license as if he had
not been previously licensed under Chapter 61, Article 29 NMSA
1978 and further require that he [be reexamined] reexamine.
The commission shall require [the] a person whose license has
expired to pay when he applies for a license, in addition to
any other fee, a late fee of one hundred dollars ($100). If
during a period of one year from the date the license expires
the person or his spouse is either absent from this state on
active duty military service or the person is suffering from
an illness or injury of such severity that the person is
physically or mentally incapable of making application for a
license, payment of the late fee and reexamination shall not
be required by the commission if, within three months of the
person's permanent return to this state or sufficient recovery
from illness or injury to allow the person to make an
application, the person makes application to the commission
for a license. A copy of that [person] person's or his
spouse's military orders or a certificate from the applicant's
physician shall accompany the application. Any person excused
by reason of active duty military service, illness or injury
as provided for in this subsection may make application for a
license without imposition of the late fee. All fees
collected pursuant to this subsection shall be disposed of in
accordance with the provisions of Section 61-29-8 NMSA 1978.
The revocation of a broker's license [shall] automatically
[suspend] suspends every real estate salesperson's license
granted to [any] a person by virtue of his association with
the broker whose license has been revoked, pending a change of
broker and the issuance of a new salesperson's license.
[Such] The new salesperson's license shall be issued without
charge if granted during the same year in which the
salesperson's license was granted.
D. Each [resident] licensed broker shall maintain
a fixed office within this state, which shall be so located as
to conform with local regulations. Every office operated by a
licensed broker [under Chapter 61, Article 29 NMSA 1978] shall
have a licensed broker who is a natural person in charge. The
license of the broker and the license of each salesperson
associated with or under contract to that broker shall be
prominently displayed in the office. The address of the
office shall be designated in the broker's license, and no
license issued shall authorize the licensee to transact real
estate business at any other address except a licensed branch
office. In case of removal from the designated address, the
licensee shall make application to the commission before such
removal or within ten days thereafter, designating the new
location of his office and paying the required fee, whereupon
the commission shall issue a license for the new location if
the new location complies with the terms of Chapter 61,
Article 29 NMSA 1978. Each licensed broker shall maintain a
sign on his office of such size and content as the commission
prescribes. In making application for a license or for a
change of address, the [licensee] licensed broker shall verify
that his office conforms with local regulations.
E. When any real estate salesperson is discharged
or terminates his association employment with the real estate
broker with whom he is associated, it is the duty of that real
estate broker to immediately deliver or mail to the commission
that real estate salesperson's license. The commission shall
hold the license on inactive status. It is unlawful for any
real estate salesperson to perform any of the acts
contemplated by Chapter 61, Article 29 NMSA 1978 either
directly or indirectly under authority of [such] an inactive
license after his association has been terminated and his
license as salesperson has been returned to the commission as
provided in that article until the appropriate fee has been
paid and the license has been reissued by the commission.
[F. During the period from July 1, 1995 through
June 30, 1998, the commission in its discretion may renew
licenses for periods of one, two or three years for the
purpose of coordinating continuing education requirements with
license renewal requirements.]"
Section 11. Section 61-29-12 NMSA 1978 (being Laws 1959, Chapter 226, Section 11, as amended) is amended to read:
"61-29-12. REFUSAL, SUSPENSION OR REVOCATION OF LICENSE FOR CAUSES ENUMERATED.--
A. The commission [shall have the power to] may
refuse [a license for cause or] to issue or may suspend or
revoke a license [at any time where] if the licensee has [by
false or fraudulent representations] obtained a license by
false or fraudulent representations or [where the licensee] in
performing or attempting to perform any of the actions
[mentioned] specified in Chapter 61, Article 29 NMSA 1978 [is
deemed to be guilty of] has:
[A. making] (1) made a substantial
misrepresentation;
[B. pursuing] (2) pursued a continued and
flagrant course of misrepresentation; [making] made false
promises through [agents, salespersons] advertising or
otherwise; or [using] used any trade name or insignia of
membership in any real estate organization of which the
licensee is not a member;
[C. paying] (3) paid or [receiving] received
any rebate, profit, compensation or commission to or from any
unlicensed person except his principal or other party to the
transaction, and then only with his principal's written
consent;
[D. representing] (4) if the licensee is a
real estate salesperson, represented or [attempting] attempted
to represent a real estate broker other than the licensed
broker with whom he is licensed without the express knowledge
and consent of [the] that licensed broker;
[E. failing] (5) failed within a reasonable
time to account for or to remit any money coming into his
possession that belongs to others, [commingling] commingled
funds of others with his own or [failing] failed to keep
[such] funds of others in an escrow or trustee account or
[failing] failed to furnish legible copies of all listing and
sales contracts to all parties executing them;
[F. conviction] (6) been convicted in any
court of competent jurisdiction of a felony or [any] an
offense involving moral turpitude;
[G. employing] (7) employed or
[compensating] compensated directly or indirectly [any] a
person for performing any of the acts regulated by Chapter 61,
Article 29 NMSA 1978 [who is] if that person was not a
licensed broker or a licensed salesperson [provided, however,
that] at the time of employment or compensation; except a
licensed broker may pay a commission to a [licensed] broker
[of] licensed in another state [provided further that], but
the nonresident broker [does] shall not conduct in this state
any of the negotiations for which a fee, compensation or
commission is paid except in cooperation with a licensed
broker of this state;
[H. failing, if a broker] (8) if the
licensee is a licensed broker, failed to place as soon after
receipt as is practicably possible any deposit money or other
money received by him in a real estate transaction in a
custodial, trust or escrow account maintained by him in a bank
or savings and loan institution or title company authorized to
do business in this state, in which the funds shall be kept
until the transaction is consummated or otherwise terminated,
at which time a full accounting of the funds shall be made by
the licensed broker. Records relative to the deposit,
maintenance and withdrawal of [such] those funds shall contain
information as may be prescribed by the rules [and
regulations] of the commission. Nothing in this [subsection
shall prohibit any] paragraph prohibits a licensed broker from
depositing nontrust funds in an amount not to exceed the
required minimum balance in each trust account so as to meet
the minimum balance requirements of the bank necessary to
maintain the account and avoid charges. This minimum balance
deposit shall not be considered commingling and shall not be
subject to levy, attachment or garnishment. This subsection
[however, shall] does not prohibit a licensed broker from
depositing any deposit money or other money received by him in
a real estate transaction with another cooperating broker who
shall in turn comply with this [subsection] paragraph;
[I. failing, if a salesperson] (9) if the
licensee is a salesperson, failed to place as soon after
receipt as is practicably possible in the custody of his
[registered] licensed broker any deposit money or other money
entrusted to him by any person dealing with him as the
representative of his [registered] licensed broker;
[J. violating any provisions] (10) violated
a provision of Chapter 61, Article 29 NMSA 1978 or [any
reasonable] a rule [or regulation] adopted and promulgated by
the commission; [in the interests of the public and in
conformance with the provisions of Chapter 61, Article 29 NMSA
1978; or
K. any other conduct] (11) committed acts,
whether of the same or different character from that specified
in this section, that [is] were related to his dealings as a
real estate broker or real estate salesperson and that
[constitutes] constituted or [demonstrates] demonstrated bad
faith, incompetency, untrustworthiness, impropriety, fraud,
dishonesty, negligence or [any] an unlawful act; or
(12) was licensed to practice real estate in any jurisdiction, territory or possession of the United States or another country and was the subject of disciplinary action as a licensee.
[Any] B. An unlawful act or violation of [any of
the provisions] a provision of Chapter 61, Article 29 NMSA
1978 by any real estate salesperson, employee, partner or
associate of a licensed real estate broker shall not be cause
for the revocation of a license of any real estate broker
unless it appears to the satisfaction of the commission that
the real estate broker had guilty knowledge of the unlawful
act or violation."
Section 12. Section 61-29-14 NMSA 1978 (being Laws 1959, Chapter 226, Section 13, as amended) is amended to read:
"61-29-14. NONRESIDENT BROKERS.--[No]
A. An application for issuance of a license or
renewal of an existing broker's license shall be accepted from
[any] a nonresident applicant who is [not] a broker licensed
in another state [which] only if the other state extends the
privilege of reciprocal licensure to [real estate] brokers
licensed in New Mexico. A qualifying nonresident may become a
[real estate] licensed broker by conforming to all the
conditions of Chapter 61, Article 29 NMSA 1978.
B. In its discretion, the commission may
recognize, in lieu of the recommendations and certificates
required to accompany an application for a broker's license,
the broker's license issued to a nonresident in another state,
provided the other state extends the privilege of licensure to
real estate brokers licensed in New Mexico. The license shall
be issued upon payment of the license fee, verification that
the applicant has complied with his resident state's current
education requirements, of which [ninety] sixty classroom
hours for a nonresident broker must be approved by the [New
Mexico real estate] commission, and the filing by the
applicant with the commission of a certified copy of the
applicant's license issued by the other state [provided that
A. the applicant shall have] if the applicant:
(1) maintained an active place of business in
the state by which he is licensed, [shall establish]
establishes and [maintain] maintains an active place of
business in this state and [shall pass] passes the written
examination required by Section 61-29-10 NMSA 1978;
[B. the applicant shall file] (2) files with
the commission an irrevocable consent that suits and actions
may be commenced against him in the proper court of any county
of this state in which a cause of action may arise or in which
the plaintiff may reside, by the service of any process or
pleadings authorized by the laws of this state on the
commission, the consent stipulating and agreeing that [such]
service of process or pleadings on the commission [shall be
taken and held in all courts to be] is as valid and binding as
if personal service had been made upon the applicant in New
Mexico. The instrument containing the consent shall be [duly]
acknowledged and, if executed on behalf of a corporation or
association, shall be accompanied by [the duly] a certified
copy of the resolution of the proper officers or managing
board authorizing the [proper] executing officer to execute
the instrument. [In case any] Process or [pleading mentioned]
pleadings in the case [is] shall be served in duplicate upon
the [board, it shall be by duplicate copies] commission, and
one [of which] shall be filed in the office of the commission
and the other immediately forwarded by registered mail to the
main office of the applicant [against] to which the process or
pleadings are directed; and
[C. the applicant shall file] (3) files a bond in
form and content [the same as is] identical to that required
of resident applicants under Chapter 61, Article 29 NMSA
1978."
Section 13. Section 61-29-15 NMSA 1978 (being Laws 1959, Chapter 226, Section 14) is amended to read:
"61-29-15. [PUBLICATION] MAINTENANCE OF LIST OF
LICENSEES.--The commission shall [at least annually, publish]
maintain a list of the names and addresses of all licensees
licensed by it under the provisions of [this act] Chapter 61,
Article 29 NMSA 1978, and of all persons whose license has
been suspended or revoked within that year, together with such
other information relative to the enforcement of the
provisions of [this act] Chapter 61, Article 29 NMSA 1978 as
it may deem of interest to the public. The commission shall
also [prepare] maintain a statement of all funds received by
it and a statement of all disbursements [and] made by it.
Copies of [such] these statements shall be mailed by the
commission to any person in this state upon request."
Section 14. Section 61-29-16 NMSA 1978 (being Laws 1959, Chapter 226, Section 15) is amended to read:
"61-29-16. SUIT BY BROKER OR [SALESMAN] SALESPERSON.--No
action for the collection of commission or compensation earned
by [any person as] a [real estate] broker or [salesman]
salesperson required to be licensed under the provisions of
[this act] Chapter 61, Article 29 NMSA 1978 shall be
maintained in the courts of the state unless [such person was
a duly licensed] the broker or [salesman] salesperson was
licensed at the time the alleged cause of action arose. [In
any event, suit against a member of the public as
distinguished from any person licensed under this act shall be
maintained only in the name of the broker.]"
Section 15. Section 61-29-19 NMSA 1978 (being Laws 1978, Chapter 203, Section 2, as amended by Laws 1993, Chapter 83, Section 7 and also by Laws 1993, Chapter 253, Section 3) is amended to read:
"61-29-19. TERMINATION OF AGENCY LIFE--DELAYED
REPEAL.--The New Mexico real estate commission is terminated
on July 1, [1999] 2005 pursuant to the Sunset Act. The
commission shall continue to operate according to the
provisions of Chapter 61, Article 29 NMSA 1978 until July 1,
[2000] 2006. Effective July 1, [2000] 2006, Chapter 61,
Article 29 NMSA 1978 is repealed."
Section 16. DELAYED REPEAL.--Sections 1 through 14 of this act are repealed on July 1, 2002.