GENERAL ASSEMBLY OF NORTH CAROLINA
HOUSE BILL 386
AN ACT to modernize the north carolina real estate license law.
The General Assembly of North Carolina enacts:
SECTION 1. G.S. 93A‑2 reads as rewritten:
"§ 93A‑2. Definitions and exceptions.
(a1) The term broker‑in‑charge
within the meaning of this Chapter means a real estate broker who has been
designated as the broker having responsibility for the supervision of
estate salespersonsbrokers on provisional status engaged in real
estate brokerage at a particular real estate office and for other administrative
and supervisory duties as the Commission shall prescribe by rule.
(c) The provisions of this Chapter do not apply to and do not include:
corporation, limited liability company, association, or other business entity who,that,
as owner or lessor, shall perform any of the acts aforesaid with reference to
property owned or leased by them, where the acts are performed in the regular
course of or as incident to the management of that property and the investment
(2) Any person acting as an attorney‑in‑fact under a duly executed power of attorney from the owner authorizing the final consummation of performance of any contract for the sale, lease or exchange of real estate.
The acts or services
of an attorney‑at‑law.Acts or services performed by an
attorney who is an active member of the North Carolina State Bar if the acts
and services constitute the practice of law under Chapter 84 of the General
(4) Any person, while acting as a receiver, trustee in bankruptcy, guardian, administrator or executor or any person acting under order of any court.
(5) Any person, while acting as a trustee under a written trust agreement, deed of trust or will, or that person's regular salaried employees. The trust agreement, deed of trust, or will must specifically identify the trustee, the beneficiary, the corpus of trust, and the trustee's authority over the corpus.
(6) Any salaried person employed by a licensed real estate broker, for and on behalf of the owner of any real estate or the improvements thereon, which the licensed broker has contracted to manage for the owner, if the salaried employee's employment is limited to: exhibiting units on the real estate to prospective tenants; providing the prospective tenants with information about the lease of the units; accepting applications for lease of the units; completing and executing preprinted form leases; and accepting security deposits and rental payments for the units only when the deposits and rental payments are made payable to the owner or the broker employed by the owner. The salaried employee shall not negotiate the amount of security deposits or rental payments and shall not negotiate leases or any rental agreements on behalf of the owner or broker. However, in a vacation rental transaction as defined by G.S. 42A‑4(3), the employee may offer a prospective tenant a rental price and term from a schedule setting forth prices and terms and the conditions and limitations under which they may be offered. The schedule shall be written and provided by the employee's employing broker with the written authority of the landlord.
(7) Any individual owner who personally leases or sells the owner's own property.
(8) Any housing authority
organized in accordance with the provisions of Chapter 157 of the General
Statutes and any regular salaried employees of the housing authority when
performing acts authorized in this Chapter
as to any property owned or
leased by the housing authority.with regard to the sale or lease of
property owned by the housing authority or the subletting of property which the
housing authority holds as tenant. This exception shall not apply to any
person, partnership, corporation, limited liability company, association, or
other business entity that contracts with a housing authority to sell or manage
property owned or leased by the housing authority."
SECTION 2. G.S. 93A‑3(e) reads as rewritten:
"(e) The Commission
shall be entitled to the services of the Attorney General of North Carolina, in
connection with the affairs of the
Commission or may on approval of the
Attorney General, employ an attorney to assist or represent it in the
enforcement of this Chapter, as to specific matters, but the fee paid for such
service shall be approved by the Attorney General. Commission, and may,
with the approval of the Attorney General, employ attorneys to represent the
Commission or assist it in the enforcement of this Chapter. The Commission
may prefer a complaint for violation of this Chapter before any court of
competent jurisdiction, and it may take the necessary legal steps through the
proper legal offices of the State to enforce the provisions of this Chapter and
collect the penalties provided therein."
SECTION 3. G.S. 93A‑4 reads as rewritten:
"§ 93A‑4. Applications for licenses; fees; qualifications; examinations; privilege licenses; renewal or reinstatement of license; power to enforce provisions.
(a1) Each person who is
issued a real estate broker license on or after April 1, 2006, shall initially
be classified as a provisional broker and shall, within three years following
initial licensure, satisfactorily complete, at a school approved by the
Commission, a postlicensing education program consisting of 90 hours of
classroom instruction in subjects determined by the Commission or shall possess
real estate education or experience in real estate transactions which the
Commission shall find equivalent to the education program. The Commission may,
by rule, establish a schedule for completion of the prescribed postlicensing
education that requires provisional brokers to complete portions of the 90‑hour
postlicensing education program in less than three years, and provisional
brokers must comply with this schedule in order to be entitled to actively
engage in real estate brokerage. Upon completion of the postlicensing education
program, the provisional status of the broker's license shall be terminated.
When a provisional broker fails to complete all 90 hours of required
cancelled, and the Commission may,
in its discretion, require the person whose license was cancelled to satisfy
the postlicensing education program and the requirements for original licensure
prescribed in this Chapter as a condition of license reinstatement, including
the examination requirements and the license reinstatement fee prescribed by
subsection (c) of this section.placed on inactive status. The broker's
license shall not be returned to active status until he or she has satisfied
such requirements as the Commission may by rule require. Every license
cancelled after April 1, 2009, because the licensee failed to complete
postlicensing education shall be reinstated on inactive status until such time
as the licensee satisfies the requirements for returning to active status as
the Commission may by rule require.
(b) Except as otherwise provided in this Chapter, any person who submits an application to the Commission in proper manner for a license as real estate broker shall be required to take an examination. The examination may be administered orally, by computer, or by any other method the Commission deems appropriate. The Commission may require the applicant to pay the Commission or a provider contracted by the Commission the actual cost of the examination and its administration. The cost of the examination and its administration shall be in addition to any other fees the applicant is required to pay under subsection (a) of this section. The examination shall determine the applicant's qualifications with due regard to the paramount interests of the public as to the applicant's competency. A person who fails the license examination shall be entitled to know the result and score. A person who passes the exam shall be notified only that the person passed the examination. Whether a person passed or failed the examination shall be a matter of public record; however, the scores for license examinations shall not be considered public records. Nothing in this subsection shall limit the rights granted to any person under G.S. 93B‑8.
An applicant for licensure under
this Chapter shall satisfy the Commission that he or she possesses the
competency, honesty, truthfulness, integrity,
and general moral charactergood
moral character, and general fitness, including mental and emotional fitness,
necessary to protect the public interest and promote public confidence in the
real estate brokerage business. The Commission may investigate the moral
character and fitness, including the mental and emotional fitness, of
each applicant for licensure and as the applicant's character and
fitness may generally relate to the real estate brokerage business, the public
interest, and the public's confidence in the real estate brokerage business.
The Commission may also require an applicant to provide the Commission with
a criminal record report. All applicants shall obtain criminal record reports
from one or more reporting services designated by the Commission to provide
criminal record reports. Applicants are required to pay the designated
reporting service for the cost of these reports. Criminal record reports,
credit reports, and reports relating to an applicant's mental and emotional
fitness obtained in connection with the application process shall not be
considered public records under Chapter 132 of the General Statutes. If the
results of any required competency examination and investigation of the
applicant's moral character and fitness shall be satisfactory to the
Commission, then the Commission shall issue to the applicant a license,
authorizing the applicant to act as a real estate broker in the State of North
Carolina, upon the payment of any privilege taxes now required by law
or that may hereafter be required by law.
Notwithstanding G.S. 150B‑38(c), in a contested case commenced upon the request of a party applying for licensure regarding the question of the moral character or fitness of the applicant, if notice has been reasonably attempted, but cannot be given to the applicant personally or by certified mail in accordance with G.S. 150B‑38(c), the notice of hearing shall be deemed given to the applicant when a copy of the notice is deposited in an official depository of the United States Postal Service addressed to the applicant at the latest mailing address provided by the applicant to the Commission or by any other means reasonably designed to achieve actual notice to the applicant."
SECTION 4. G.S. 93A‑4.1(c) reads as rewritten:
"(c) The Commission may
any reasonable rules not inconsistent with this Chapter to give
purpose and effect to the continuing education requirement, including rules
(1) The content and subject matter of continuing education courses.
(2) The curriculum of courses required.
(3) The criteria, standards, and procedures for the approval of courses, course sponsors, and course instructors.
(4) The methods of instruction.
(5) The computation of course credit.
(6) The ability to carry forward course credit from one year to another.
(7) The deferral of
continuing education for brokers
and salespersons not engaged in
(8) The waiver of or variance from the continuing education requirement for hardship or other reasons.
(9) The procedures for compliance and sanctions for noncompliance."
SECTION 5. G.S. 93A‑5 reads as rewritten:
93A‑5. Register of
applicants; roster of brokers; financial report to
Secretary of State. applicants and roster of brokers.
(a) The Executive Director of the Commission shall keep a register of all applicants for license, showing for each the date of application, name, place of residence, and whether the license was granted or refused. Said register shall be prima facie evidence of all matters recorded therein.
(b) The Executive Director of the Commission shall also keep a current roster showing the names and places of business of all licensed real estate brokers, which roster shall be kept on file in the office of the Commission and be open to public inspection.
On or before the
first day of September of each year, the Commission shall file with the
Secretary of State a copy of the roster of real estate brokers holding
certificates of license, and at the same time shall also file with the
Secretary of State a report containing a complete statement of receipts and
disbursements of the Commission for the preceding fiscal year ending June 30
attested by the affidavit of the Executive Director of the Commission.The
Commission shall file reports annually as required by G.S. 93B‑2."
SECTION 6. G.S. 93A‑6 reads as rewritten:
"§ 93A‑6. Disciplinary action by Commission.
(a) The Commission has power to take disciplinary action. Upon its own initiative, or on the complaint of any person, the Commission may investigate the actions of any person or entity licensed under this Chapter, or any other person or entity who shall assume to act in such capacity. If the Commission finds probable cause that a licensee has violated any of the provisions of this Chapter, the Commission may hold a hearing on the allegations of misconduct.
The Commission has power to suspend or revoke at any time a license issued under the provisions of this Chapter, or to reprimand or censure any licensee, if, following a hearing, the Commission adjudges the licensee to be guilty of:
(1) Making any willful or negligent misrepresentation or any willful or negligent omission of material fact.
(2) Making any false promises of a character likely to influence, persuade, or induce.
(3) Pursuing a course of misrepresentation or making of false promises through agents, advertising or otherwise.
(4) Acting for more than one party in a transaction without the knowledge of all parties for whom he or she acts.
(5) Accepting a commission
or valuable consideration as a real estate
provisional status for the performance of any of the acts specified in this
Article or Article 4 of this Chapter, from any person except his or her broker‑in‑charge
or licensed broker by whom he or she is employed.
(6) Representing or attempting to represent a real estate broker other than the broker by whom he or she is engaged or associated, without the express knowledge and consent of the broker with whom he or she is associated.
(7) Failing, within a reasonable time, to account for or to remit any monies coming into his or her possession which belong to others.
(8) Being unworthy or incompetent to act as a real estate broker in a manner as to endanger the interest of the public.
(9) Paying a commission or valuable consideration to any person for acts or services performed in violation of this Chapter.
(10) Any other conduct which constitutes improper, fraudulent or dishonest dealing.
(11) Performing or undertaking to perform any legal service, as set forth in G.S. 84‑2.1, or any other acts constituting the practice of law.
(12) Commingling the money or
other property of his or her principals with his or her own or failure to
maintain and deposit in a trust or escrow account in
an insured bank or
savings and loan association in North Carolinaa bank as provided by
subsection (g) of this section all money received by him or her as a real
estate licensee acting in that capacity, or an escrow agent, or the custodian
or manager of the funds of another person or entity which relate to or concern
that person's or entity's interest or investment in real property, provided,
these accounts shall not bear interest unless the principals authorize in
writing the deposit be made in an interest bearing account and also provide for
the disbursement of the interest accrued.
(13) Failing to deliver, within a reasonable time, a completed copy of any purchase agreement or offer to buy and sell real estate to the buyer and to the seller.
(14) Failing, at the time
a sales transaction is consummated, to deliver to the seller in
every real estate transaction, a complete detailed closing statement showing
all of the receipts and disbursements handled by him or her for the seller or
failing to deliver to the buyer a complete statement showing all money received
in the transaction from the buyer and how and for what it was disbursed.the
broker's client a detailed and accurate closing statement showing the receipt
and disbursement of all monies relating to the transaction about which the
broker knows or reasonably should know. If a closing statement is prepared by
an attorney or lawful settlement agent, a broker may rely on the delivery of
that statement, but the broker must review the statement for accuracy and
notify all parties to the closing of any errors.
(15) Violating any rule
regulation promulgatedadopted by the Commission. The Executive Director shall
transmit a certified copy of all final orders of the Commission suspending or
revoking licenses issued under this Chapter to the clerk of superior court of
the county in which the licensee maintains his or her principal place of
business. The clerk shall enter these orders upon the judgment docket of the
Following a hearing,
theThe Commission shall also have power tomay suspend
or revoke any license issued under the provisions of this Chapter or to reprimand
or censure any licensee when:
(1) The licensee has obtained a license by false or fraudulent representation;
(2) The licensee has been
convicted or has entered a plea of guilty or no contest upon which final
judgment is entered by a court of competent jurisdiction in this State, or any
other state, of
the criminal offenses of: embezzlement, obtaining money
under false pretense, fraud, forgery, conspiracy to defraud,any
misdemeanor or felony that involves false swearing, misrepresentation, deceit,
extortion, theft, bribery, embezzlement, false pretenses, fraud, forgery,
larceny, misappropriation of funds or property, perjury, or any other
offense showing professional unfitness or involving moral turpitude
which would reasonably affect the licensee's performance in the real estate
(3) The licensee has violated any of the provisions of G.S. 93A‑6(a) when selling, leasing, or buying the licensee's own property;
(4) The broker's unlicensed employee, who is exempt from the provisions of this Chapter under G.S. 93A‑2(c)(6), has committed, in the regular course of business, any act which, if committed by the broker, would constitute a violation of G.S. 93A‑6(a) for which the broker could be disciplined; or
The licensee, who is
also a State‑licensed or State‑certified real estate appraiser
pursuant to Chapter 93E of the General Statutes, has violated any provisions of
Chapter 93E of the General Statutes and has been reprimanded or has had an
appraiser license or certificate suspended or revoked by the Appraisal Board.The
licensee, who is also licensed as an appraiser, attorney, home inspector,
mortgage broker, general contractor, or member of another licensed profession
or occupation, has been disciplined for an offense under any law involving
fraud, theft, misrepresentation, breach of trust or fiduciary responsibility,
or willful or negligent malpractice.
(c) The Commission may
appear in its own name in superior court in actions for injunctive relief to
prevent any person from violating the provisions of this Chapter or rules
adopted by the Commission. The superior court shall have the power
to grant these injunctions even if criminal prosecution has been or may be
instituted as a result of the violations, or whether the person is a licensee
of the Commission.
(d) Each broker shall maintain complete records showing the deposit, maintenance, and withdrawal of money or other property owned by the broker's principals or held in escrow or in trust for the broker's principals. The Commission may inspect these records periodically, without prior notice and may also inspect these records whenever the Commission determines that they are pertinent to an investigation of any specific complaint against a licensee.
(e) When a person or entity
licensed under this Chapter is accused of any act, omission, or misconduct
which would subject the licensee to disciplinary action, the licensee, with the
consent and approval of the Commission, may surrender the license and all the
rights and privileges pertaining to it for a period of time established by the
Commission. A person or entity who surrenders a license shall not thereafter be
eligible for or submit any application for licensure as a real estate broker
salesperson during the period of license surrender.
(f) In any contested case in which the Commission takes disciplinary action authorized by any provision of this Chapter, the Commission may also impose reasonable conditions, restrictions, and limitations upon the license, registration, or approval issued to the disciplined person or entity. In any contested case concerning an application for licensure, time share project registration, or school, sponsor, instructor, or course approval, the Commission may impose reasonable conditions, restrictions, and limitations on any license, registration, or approval it may issue as a part of its final decision.
(g) A broker's trust or escrow account shall be a demand deposit account in a federally insured depository institution lawfully doing business in this State which agrees to make its records of the broker's account available for inspection by the Commission's representatives.
(h) The Executive Director shall transmit a certified copy of all final orders of the Commission suspending or revoking licenses issued under this Chapter to the clerk of superior court of the county in which the licensee maintains his or her principal place of business. The clerk shall enter the order upon the judgment docket of the county."
SECTION 7. G.S. 93A‑6.1(b) reads as rewritten:
"(b) The Commission
shall be exempt from the requirements of Chapter 53B of the General Statutes
with regard to subpoenas issued to compel the production of a licensee's trust
account records held by any financial institution.
exemption, the Commission shall serve, pursuant to G.S. 1A‑1, Rule
4(j) of the N.C. Rules of Civil Procedure or by certified mail to the licensee's
last known address, a copy of the subpoena and notice that the subpoena has
been served upon the financial institution. Service of the subpoena and notice
on the licensee shall be made within 10 days following service of the subpoena
on the financial institution holding the trust account records.Notwithstanding
the exemption, whenever the Commission issues a subpoena under this subsection,
the Commission shall send a copy to the licensee at his or her address of
record by regular mail."
SECTION 8. G.S. 93A‑9(a) reads as rewritten:
An applicant from
another state, which offers licensing privileges to residents of North
Carolina, may be licensed by conforming to all the provisions of this Chapter
and, in the discretion of the Commission, such other terms and conditions as
are required of North Carolina residents applying for license in such other
state; provided that the Commission may exempt from the examination prescribed
in G.S. 93A‑4 a broker or salesperson duly licensed in another state
if a similar exemption is extended to licensed brokers from North Carolina. A
license applicant who has been a resident of North Carolina for not more than
90 days may be considered by the Commission as a nonresident for the purposes
of this subsection.The Commission may issue a broker license to an
applicant licensed in a foreign jurisdiction who has satisfied the requirements
for licensure set out in G.S. 93A‑4 or such other requirements as
the Commission in its discretion may by rule require."
SECTION 9. G.S. 93A‑11(a) reads as rewritten:
"(a) Notwithstanding the
provisions of G.S. 97‑21 or any other provision of law, a real
estate broker may include in the governing contract with a real estate
broker on provisional status whose nonemployee status is recognized
pursuant to section 3508 of the United States Internal Revenue Code, 26 U.S.C.
§ 3508, an agreement for the salespersonbroker on provisional status to
reimburse the broker for the cost of covering that salesperson broker
on provisional status under the broker's workers' compensation coverage of
the broker's business."
SECTION 10. G.S. 93A‑16 reads as rewritten:
"Real Estate Education and Recovery Fund.
"§ 93A‑16. Real Estate Education and Recovery Fund created; payment to fund; management.
(a) There is hereby created
a special fund to be known as the "Real Estate Education and Recovery
Fund" which shall be set aside and maintained by the North Carolina Real
Estate Commission. The fund shall be used in the manner provided under this
Article for the payment of unsatisfied judgments where the aggrieved person has
suffered a direct monetary loss by reason of certain acts committed by
real estate salesperson licensed before April 1, 2006, or byany real estate
broker. The Commission may also expend money from the fund to create books and
other publications, courses, forms, seminars, and other programs and materials
to educate licensees and the public in real estate subjects. However, the
Commission shall make no expenditures from the fund for educational purposes if
the expenditure will reduce the balance of the fund to an amount less than two
hundred thousand dollars ($200,000).
(b) On September 1, 1979,
the Commission shall transfer the sum of one hundred thousand dollars
($100,000) from its expense reserve fund to the Real Estate Education and Recovery
Fund. Thereafter, the Commission may transfer to the Real Estate Education
and Recovery Fund additional sums of money from whatever funds the
Commission may have, provided that, if on December 31 of any year the amount
remaining in the fund is less than fifty thousand dollars ($50,000), the
Commission may determine that each person or entity licensed under this
Chapter, when renewing a license, shall pay in addition to the license renewal
fee, a fee not to exceed ten dollars ($10.00) per broker
and five dollars
($5.00) per salesperson as shall be determined by the Commission for the
purpose of replenishing the fund.
(c) The Commission shall invest and reinvest the monies in the Real Estate Education and Recovery Fund in the same manner as provided by law for the investment of funds by the clerk of superior court. The proceeds from such investments shall be deposited to the credit of the fund.
(d) The Commission shall
have the authority to adopt
reasonable rules and procedures not
inconsistent with the provisions of this Article, to provide for the orderly,
fair and efficient administration and payment of monies held in the Real Estate
Education and Recovery Fund."
SECTION 11. G.S. 93A‑17 reads as rewritten:
"§ 93A‑17. Grounds for payment; notice and application to Commission.
(a) An aggrieved person who
has suffered a direct monetary loss by reason of the conversion of trust funds
a real estate salesperson licensed before April 1, 2006, or by any
licensed real estate broker shall be eligible to recover, subject to the
limitations of this Article, the amount of trust funds converted and which is
otherwise unrecoverable provided that:
(1) The act or acts of conversion which form the basis of the claim for recovery occurred on or after September 1, 1979;
(2) The aggrieved person has
sued the real estate broker
or salesperson in a court of competent
jurisdiction and has filed with the Commission written notice of such lawsuit
within 60 days after its commencement unless the claim against the Real Estate Education
and Recovery Fund is for an amount less than three thousand dollars
($3,000), excluding attorneys attorneys' fees, in which case the
notice may be filed within 60 days after the termination of all judicial
proceedings including appeals;
(3) The aggrieved person has
obtained final judgment in a court of competent jurisdiction against the real
or salesperson on grounds of conversion of trust funds
arising out of a transaction which occurred when such broker or salesperson was
licensed and acting in a capacity for which a license is required; and
(4) Execution of the judgment has been attempted and has been returned unsatisfied in whole or in part.
Upon the termination of all
judicial proceedings including appeals, and for a period of one year
thereafter, a person eligible for recovery may file a verified application with
the Commission for payment out of the Real Estate Education and Recovery
Fund of the amount remaining unpaid upon the judgment which represents the
actual and direct loss sustained by reason of conversion of trust funds. A copy
of the judgment and return of execution shall be attached to the application
and filed with the Commission.
The applicant shall serve upon the judgment
debtor a copy of the application and shall file with the Commission an
affidavit or certificate of such service.
(b) For the purposes of
this Article, the term "trust funds" shall include all earnest money
deposits, down payments, sales proceeds, tenant security deposits, undisbursed
rents and other such monies which belong to another or others and are held by a
real estate broker
or salesperson acting in that capacity. Trust funds
shall also include all time share purchase monies which are required to be held
in trust by G.S. 93A‑45(c) during the time they are, in fact, so
held. Trust funds shall not include, however, any funds held by an independent
escrow agent under G.S. 93A‑42 or any funds which the court may find
to be subject to an implied, constructive or resulting trust.
(c) For the purposes of
this Article, the terms
"licensee", "broker", and "salesperson""licensee"
and "broker" shall include only individual persons licensed under
this Chapter as brokers or individual persons who were licensed under this
Chapter as salespersons prior to April 1, 2006.brokers. The terms "licensee",
"broker", and "salesperson""licensee" and "broker"
shall not include a time share developer, time share project, independent
escrow agent, corporation or other entity licensed under this Chapter."
SECTION 12. G.S. 93A‑18(8) reads as rewritten:
"(8) Knows of no assets of the judgment debtor and has attempted collection from all other persons who may be liable for the transaction for which the aggrieved person seeks payment from the Real Estate Education and Recovery Fund if there be any such other persons."
SECTION 13. G.S. 93A‑20 reads as rewritten:
"§ 93A‑20. Order directing payment out of fund; compromise of claims.
Applications for payment from the Real Estate Education and Recovery Fund shall be heard and decided by a majority of the members of the Commission. If, after a hearing, the Commission finds the claim should be paid from the fund, the Commission shall enter an order requiring payment from the fund of whatever sum the Commission shall find to be payable upon the claim in accordance with the limitations contained in this Article.
Subject to Commission approval, a claim based upon the application of an aggrieved person may be compromised; however, the Commission shall not be bound in any way by any compromise or stipulation of the judgment debtor. If a claim appears to be otherwise meritorious, the Commission may waive procedural defects in the application for payment."
SECTION 14. G.S. 93A‑21 reads as rewritten:
"§ 93A‑21. Limitations; pro rata distribution; attorney fees.
(a) Payments from the Real Estate Education and Recovery Fund shall be subject to the following limitations:
(1) The right to recovery
under this Article shall be forever barred unless application is made within
one year after termination of all proceedings including appeals, in connection
(2) The fund shall not be
liable for more than
twenty‑five thousand dollars ($25,000)fifty
thousand dollars ($50,000) per transaction regardless of the number of persons
aggrieved or parcels of real estate involved in such transaction; andtransaction.
The liability of Payment
from the fund shall not exceed in the aggregate twenty‑five thousand
dollars ($25,000) for any one licensee within a single calendar year, and in no
event shall it exceed in the aggregate fifty thousand dollars ($50,000)seventy‑five
thousand dollars ($75,000) for any one licensee.
(4) The fund shall not be liable for payment of any judgment awards of consequential damages, multiple or punitive damages, civil penalties, incidental damages, special damages, interest, costs of court or action or other similar awards.
(b) If the maximum liability of the fund is insufficient to pay in full the valid claims of all aggrieved persons whose claims relate to the same transaction or to the same licensee, the amount for which the fund is liable shall be distributed among the claimants in a ratio that their respective claims bear to the total of such valid claims or in such manner as the Commission, in its discretion, deems equitable. Upon petition of counsel for the Commission, the Commission may require all claimants and prospective claimants to be joined in one proceeding to the end that the respective rights of all such claimants to the Real Estate Education and Recovery Fund may be equitably resolved. A person who files an application for payment after the maximum liability of the fund for the licensee or transaction has been exhausted shall not be entitled to payment and may not seek judicial review of the Commission's award of payment to any party except upon a showing that the Commission abused its discretion.
(c) In the event an
aggrieved person is entitled to payment from the fund in an amount
thousand five hundred dollars ($1,500) or less,which is equal to or less
than the maximum amount of money which may be awarded in small claims court
under G.S. 7A‑210, the Commission may allow such person to
recover from the fund reasonable attorney's fees incurred in effecting such
recovery. Reimbursement for attorney's fees shall be limited to those fees
incurred in effecting recovery from the fund and shall not include any fee
incurred in obtaining judgment against the licensee."
SECTION 15. G.S. 93A‑22 reads as rewritten:
"§ 93A‑22. Repayment to fund; automatic suspension of license.
Should the Commission pay from the
Real Estate Education and Recovery Fund any amount in settlement of a
claim or toward satisfaction of a judgment against a licensed real estate
or salesperson,broker, any license issued to the broker or
salesperson shall be automatically suspended upon the effective date of the
order authorizing payment from the fund. No such broker or salesperson shall
be granted a reinstatement until the fund has been repaid in full, including interest
at the legal rate as provided for in G.S. 24‑1."
SECTION 16. G.S. 93A‑23 reads as rewritten:
"§ 93A‑23. Subrogation of rights.
When the Commission has paid from the Real Estate Education and Recovery Fund any sum to the judgment creditor, the Commission shall be subrogated to all of the rights of the judgment creditor to the extent of the amount so paid and the judgment creditor shall assign all right, title, and interest in the judgment to the extent of the amount so paid to the Commission and any amount and interest so recovered by the Commission on the judgment shall be deposited in the Real Estate Education and Recovery Fund."
SECTION 17. G.S. 93A‑25 reads as rewritten:
"§ 93A‑25. Persons ineligible to recover from fund.
No real estate broker
estate salesperson who suffers the loss of any commission from any
transaction in which he or she was acting in the capacity of a real estate
broker or real estate salesperson shall be entitled to make application
for payment from the Real Estate Education and Recovery Fund for the
SECTION 18. G.S. 93A‑35(b) reads as rewritten:
"(b) Licenses shall be
renewable annually on July 1, provided that a renewal application accompanied
by the appropriate renewal fees has been filed not later than June 1 in the
form and manner prescribed by the Commission, and provided further that the
applicant and school are found to be in compliance with the standards
established for issuance of an original license. The Commission may by rule set
nonrefundable renewal fees not to exceed one hundred twenty‑five dollars
($125.00) for each school location and twenty‑five dollars ($25.00) for
each real estate
salesperson or broker prelicensing and postlicensing
SECTION 19. G.S. 93A‑41(9) reads as rewritten:
"(9) "Time share"
means a right to occupy a unit or any of several units during five or more
separated time periods over a period of at least five years, including renewal
options, whether or not coupled with a freehold estate or an estate for years
in a time share project or a specified portion
thereof, including, but not
limited to,of a time share project. "Time share" shall also
include a vacation license, prepaid hotel reservation, club membership,
limited partnership, vacation bond, or a plan or system where the right to use a
time share unit or units for periods of time is awarded or apportioned on
the basis of points, vouchers, split, divided, or floating use;use,
even if on a competitive basis with other purchasers;".
SECTION 20. G.S. 93A‑42 reads as rewritten:
"§ 93A‑42. Time shares deemed real estate.
(a) A time share which in whole or in part burdens or pertains to real property in this State is deemed to be an interest in real estate, and shall be governed by the law of this State relating to real estate.
(b) A purchaser of a time share which burdens or pertains to real property located in the State may in accordance with G.S. 47‑18 register the time share instrument by which the purchaser acquired the interest and upon such registration shall be entitled to the protection provided by Chapter 47 of the General Statutes for the recordation of other real property instruments. A time share instrument transferring or encumbering a time share shall not be rejected for recordation because of the nature or duration of that estate, provided all other requirements necessary to make an instrument recordable are complied with. An instrument concerning a time share which burdens or pertains to no real property located in this State shall not be recorded in the office of the register of deeds in any county in this State.
(c) The developer shall record or cause to be recorded a time share instrument:
(1) Not less than six days nor more than 45 days following the execution of the contract of sale by the purchaser; or
(2) Not later than 180 days following the execution of the contract of sale by the purchaser, provided that all payments made by the purchaser shall be placed by the developer with an independent escrow agent upon the expiration of the 10‑day escrow period provided by G.S. 93A‑45(c).
(d) The independent escrow agent provided by G.S. 93A‑42(c)(2) shall deposit and maintain the purchaser's payments in an insured trust or escrow account in a bank or savings and loan association located in this State. The trust or escrow account may be interest‑bearing and the interest earned shall belong to the developer, if agreed upon in writing by the purchaser; provided, however, if the time share instrument is not recorded within the time periods specified in this section, then the interest earned shall belong to the purchaser. The independent escrow agent shall return all payments to the purchaser at the expiration of 180 days following the execution of the contract of sale by the purchaser, unless prior to that time the time share instrument has been recorded. However, if prior to the expiration of 180 days following the execution of the contract of sale, the developer and the purchaser provide their written consent to the independent escrow agent, the developer's obligation to record the time share instrument and the escrow period may be extended for an additional period of 120 days. Upon recordation of the time share instrument, the independent escrow agent shall pay the purchaser's funds to the developer. Upon request by the Commission, the independent escrow agent shall promptly make available to the Commission inspection of records of money held by the independent escrow agent.
(e) In no event shall the developer be required to record a time share instrument if the purchaser is in default of the purchaser's obligations.
(f) Recordation under the provisions of this section of the time share instrument shall constitute delivery of that instrument from the developer to the purchaser."
SECTION 21. G.S. 93A‑53 reads as rewritten:
"§ 93A‑53. Register of applicants; roster of registrants; registered projects; financial report to Secretary of State.
(a) The Executive Director of the Commission shall keep a register of all applicants for certificates of registration, showing for each the date of application, name, business address, and whether the certificate was granted or refused.
(b) The Executive Director of the Commission shall also keep a current roster showing the name and address of all time share projects registered with the Commission. The roster shall be kept on file in the office of the Commission and be open to public inspection.
On or before the
first day of September of each year, the Commission shall file with the
Secretary of State a copy of the roster of time share projects registered with
the Commission and a report containing a complete statement of income received
by the Commission in connection with the registration of time share projects
for the preceding fiscal year ending June 30th attested by the affidavit of the
Executive Director of the Commission. The report shall be made a part of those
annual reports required under the provisions of G.S. 93A‑5.The
Commission shall include a copy of the roster of time share projects current on
the preceding June 30 and a statement of the income received by the Commission
in connection with the registration of time share projects during the fiscal
year ending on June 30 with the report required by G.S. 93B‑2."
SECTION 22. G.S. 93A‑54(a) reads as rewritten:
"(a) The Commission has power to take disciplinary action. Upon its own motion, or on the verified complaint of any person, the Commission may investigate the actions of any time share salesperson, developer, or project broker of a time share project registered under this Article, or any other person or entity who shall assume to act in such capacity. If the Commission finds probable cause that a time share salesperson, developer, or project broker has violated any of the provisions of this Article, the Commission may hold a hearing on the allegations of misconduct.
The Commission has the power to suspend or revoke at any time a real estate license issued to a time share salesperson or project broker, or a certificate of registration of a time share project issued to a developer; or to reprimand or censure such salesperson, developer, or project broker; or to fine such developer in the amount of five hundred dollars ($500.00) for each violation of this Article, if, after a hearing, the Commission adjudges either the salesperson, developer, or project broker to be guilty of:
(9) Failing to deposit and
maintain in a
trust or escrow account in an insured bank or savings and loan
association in North Carolinabroker's trust or escrow account as defined
by G.S. 93A‑6(g) all money received from others in a time share
transaction as may be required in G.S. 93A‑45 of this Article or
failing to place with an independent escrow agent the funds of a time share
purchaser when required by G.S. 93A‑42(c);
SECTION 23. The Real Estate Commission shall adopt any rules necessary to implement the provisions of Sections 3 and 8 of this act when this act becomes law.
SECTION 24. Sections 23 and 24 of this act are effective when this act becomes law. The remainder of this act becomes effective January 1, 2012.
In the General Assembly read three times and ratified this the 15th day of June, 2011.
Walter H. Dalton
President of the Senate
Speaker of the House of Representatives
Beverly E. Perdue
Approved __________.m. this ______________ day of ___________________, 2011