107. Termination of
affiliation - Transfer of license.
(a) When
any real estate salesperson, Associate Broker or Executive Broker shall be
discharged or shall terminate affiliation with the real estate Principal Broker
or Executive Broker, such Principal Broker or Executive Broker shall notify the
Commission of such discharge or termination and return to the Commission the
license and pocket card of the terminated Broker or salesperson. Such
notification shall automatically inactivate the license.
Failure of the Principal Broker or Executive Broker to so notify
the Commission of such discharge or termination shall be cause for the
suspension or revocation of his/her broker's license.
(b) A broker or salesperson terminated under
subsection (a) above may transfer his/her license to another firm, after
his/her license and pocket card have been returned to the Commission, by filing
with the Commission a transfer application signed by the new Principal Broker
or Executive Broker. Such transfer application must be accompanied by (1) a
statement that he/she is not taking any listings, management contracts,
appraisals, lease agreements, or copies of any such documents, or any other
pertinent information belonging to his former Principal Broker or Executive
Broker, and (2) a transfer fee. At the time the transfer application and the
two accompanying items are filed, the Commission may issue a temporary interim
license.
116.
Salesperson dealing independently -Disciplinary proceedings.
If a Principal Broker or Executive Broker learns a salesperson,
Associate Broker or Executive Broker licensed under him/her has, without
his/her permission, engaged in real estate activities independently or through
some other broker, it is his/her duty to immediately notify the Commission in
writing and forward such licensee's license and pocket card to the Commission.
The Commission may initiate disciplinary proceedings against the licensee under
A.C.A. § 17-35-309(5), (6), (8), (10), and/or any other sections of the
license law or regulations which may have been violated.
120. Regular meetings of Commission.
Regular meetings of the Arkansas Real Estate Commission shall
generally be held on the Monday immediately preceding the second Tuesday of
each month, and will continue in session until its business is completed
insofar as is possible; provided, however, that any regular meeting of the
Commission may be set forward, postponed, cancelled or adjourned to another
day.
123. Appearance before
Commission.
Any person desiring to appear before the Commission at any of its
regular meetings, to take up any business within the jurisdiction of the
Commission shall, at least 15 days prior to such meeting, file with the
Secretary a written request therefor, in which the nature and purpose of the
appearance shall be clearly and concisely stated with sufficient details to
fully apprise the Commission of the basis and extent of such business.
Provided, however, that a person may not appear before the Commission in
connection with any matter pending before the Commission for administrative
adjudication except upon notice and opportunity for all parties to
participate.
127.
Complaints - Procedure.
Any and every complaint which establishes reasonable cause to
believe a violation of the real estate license law or Commission regulations
has occurred shall be presented to and reasonably disposed of by the
Commission, giving due consideration to sufficient and necessary time to
investigate and consider the complaint. Any person who shall file a complaint
with the Commission's Secretary, and who shall disagree with the Secretary's
findings that such complaint . fails to establish reasonable cause to believe a
violation has occurred may, upon written request, appeal the Secretary's
decision to the Commission. The Commission shall then review the written record
and sustain or overrule the Secretary's decision. If the decision is sustained,
the complaint shall be dismissed. If the decision is overruled, the Commission
may either order a hearing or may request further investigation or
documentation of the complaint. Provided, however, that a person may not appear
before the Commission in connection with any matter pending before the
Commission for administrative adjudication except upon notice and opportunity
for all parties to participate.
133. Broker responsibilities - Instructing
and supervising salespersons and brokers.
Principal Brokers and Executive Brokers have the duty and
responsibility to instruct those brokers and salespersons licensed under them
with regard to the fundamentals of real estate practice and the ethics of the
profession, and to keep them informed and abreast of all changes and
developments pertaining to the Arkansas Real Estate License Law and Commission
Regulations. They shall also exercise strict supervision of the real estate
activities of all those licensed under them and for whom they have supervisory
responsibility.
Whether or not a Principal Broker or Executive Broker has
discharged these responsibilities for those licensed under him/her will depend
on various factors and circumstances, including, without limitation, the
following:
1. Frequency and manner of
contact and communication;
2. Type
and frequency of educational and instructional activities;
3. Method and frequency of monitoring sales
activities.
138. Trust
account - Earnest money.
(a) Each firm shall
maintain a separate trust account for all funds belonging to others. The
principal broker of the firm shall be held solely responsible and accountable
for any and all disbursements from the trust account. Except as authorized by
subsection (f) of this regulation, the trust account shall be non-interest
bearing and it shall not contain any funds belonging to the broker, firm, or
any member of the firm. However, the broker may maintain a sufficient fixed
amount of personal funds to insure that the bank will not charge a service or
maintenance fee for the account. The name on the account should include either
"trust" or "escrow" and must be located in an institution insured by either the
FDIC or some other insuring agency of the federal government.
(b) With regard to each separate trust
account, the principal broker shall submit to the Commission in writing the
following:
1. Name and number of the
account.
2. Name and address of the
bank.
3. Date the account was
opened.
(c) The
information referred to in the immediately preceding paragraph shall be
submitted to the Commission within ninety days after the effective date of this
regulation, and thereafter it shall be submitted immediately upon any of the
following events or occurrences:
1. Commission
approval of real estate firm name.
2. Change of real estate firm name.
3. Designation of new principal
broker.
4. The account is changed
in any respect,
(d)
Within one working day following acceptance of an offer by the seller, all
earnest money funds shall be (1) deposited in the trust account, or (2)
delivered to the broker's escrow agent. All other funds delivered to the broker
pending performance of any act shall be, within one working day (1) deposited
in the trust account, or (2) delivered to the broker's escrow agent. If the
broker shall deliver funds to an escrow agent, he shall maintain an accounting
of all such funds and shall keep in his file a signed receipt from the escrow
agent for such funds. Likewise, a broker shall at all times keep detailed
records of all funds coming into his possession and all disbursements made by
him. Such records shall be open to inspection by the investigative staff of the
Commission.
(e) All security
deposits made under a rental or lease agreement shall be deposited in the
principal broker's trust account, including those deposits made on property
owned by any broker or salesperson licensed under the principal broker unless
the broker or salesperson who owns the property has a written agreement with
the tenant providing that he/she may keep the security deposit in his/her
separate account. A copy of any such agreement shall be furnished to the
Principal Broker.
Provided, however, that the Principal Broker shall not be
responsible for the failure of those licensed under him/her to comply with this
subsection (e) as long as he/she is in compliance with Regulation 133.
(f) Nothing in this regulation
shall be deemed to prohibit a broker from maintaining certain funds or deposits
in particular transactions in an interest-bearing account when required to do
so by law or valid regulation of any governmental agency, nor shall it prohibit
a broker from maintaining an interest-bearing account while participating in
the Interest on Real Estate Brokers' Trust Account program authorized by Act
340 of 1989.
140.
Contracts and financial obligation in writing - Copies to all
parties.
(a) Except as provided in
subparagraph (b) below, a licensee, for the protection of the public and of all
parties with whom he deals, shall see that financial obligations and
commitments regarding real estate are in writing, expressing the exact
agreement of the parties, and that copies of such agreements are placed in the
hands of all parties involved. (Examples: Offer and acceptance contracts,
closing statements, lease agreements, management agreements, etc. ) If a real
estate broker or salesperson shall fail to voluntarily place copies of such
contracts and statements into the hands of all affected parties such action
shall be deemed by the Commission to be prima facie evidence of violation of
Ark. Code Ann. § 17-35-309(8) and (10).
(b) It is strongly recommended, but not
required, that listing agreements be in writing.
143. Self-dealing - Full disclosure required.
Licensees shall not buy or sell property for themselves or for a
corporation or partnership in which they have an interest without first making
full disclosure to the buyer or seller, as the case may be, of the exact facts
that they are licensed as a real estate broker or salesperson and are buying
the property for their own account or have an interest in the property which
they are selling. All such disclosures must be made in writing before the
contract of sale is entered into.
144. Sale or management of property - No
secret profits.
When acting as agent in the sale or management of property, a
licensee shall not accept any commission, rebate, profit or payment from any
source in connection with the property without full written disclosure to the
party represented by the licensee.
147. Offer and Acceptance.
(a) Subject to the provisions of Regulation
148, any formal offer received on a specific property shall promptly be
presented by the listing broker or listing salesperson to the seller for his
consideration. In the event that more than one formal offer is made before the
seller has accepted a proposal, all offers shall be presented to the seller for
his decision.
(b) Every offer
received must be signed by the salesperson or Associate Broker who receives it
and by either the Principal Broker or the Executive Broker who is responsible
for supervising the salesperson or Associate Broker. Every acceptance must bear
the names, but not necessarily the signatures, of the salesperson. Associate
Broker or Executive Broker who takes the listing and of either the Principal
Broker or the supervising Executive Broker. (It is desirable for the Principal
or supervising Executive Broker to review and sign each offer before it is
submitted to the seller, although that is not always possible. However, the
Principal or supervising Executive Broker shall review and sign the offer as
soon as possible after it is received, and, in all cases, prior to
closing.)
148. Exclusive
listing and management contracts - No circumvention.
If a firm shall hold an exclusive listing contract on a parcel of
property, all other firms shall present any offer they shall receive on that
property to the firm holding the exclusive listing contract not later than the
close of the next business day after the receipt of the offer. Likewise, all
earnest moneys and deposits shall be forwarded to the listing firm for deposit
in the listing firm's trust account. The listing firm shall then present the
offer to the. seller. The selling broker or salesperson may accompany the
listing broker or salesperson with his/her permission, but he/she shall not
contact the seller alone unless he/she shall have prior written permission from
the listing broker. Under no circumstances may a broker or salesperson
negotiate with a seller/owner who has an exclusive listing or management
contract with another firm without prior permission from the listing/managing
firm. A licensee who knowingly circumvents an exclusive listing or management
contract or who negotiates directly with a seller/owner without permission will
have presumptively violated Ark. Code Ann. § 17-35-309(8) and (10).
149. Signs.
Signs offering or advertising a property may be on the property
only during the existence of a listing agreement, unless otherwise authorized
by the owner.
152. Criminal
convictions - Disciplinary actions.
(a)
Conviction of, or a plea of guilty or nolo contendere to, a crime involving
moral turpitude or which involves dishonesty, untruthfulness or
untrustworthiness shall be deemed noncompliance with and a prima facie
violation of A.C.A. §
17-35-302
and § 17-35-309(8) and (10).
(b) A licensee convicted of any crime other
than a traffic violation shall make written report thereof to the Commission
within thirty (30) days after the conviction. The report shall include the date
of the offense and of the conviction, the name and address of the convicting
court, the specific crime for which convicted, the fine, penalty and/or other
sanctions imposed, and copies of the charging document and judgment of
conviction. The report shall also include the licensee's explanation of the
circumstances which led to the charge and conviction, along with any other
information which the licensee wishes to submit.
(c) A licensee who has a real estate broker's
or salespersons's license denied, revoked or suspended shall make written
report thereof to the Commission within thirty (30) days after such denial,
revocation or suspension. The report shall include the date of the action, the
name and address of the regulatory agency which has taken the action and copies
of documents pertaining thereto. The report shall also include the licensee's
explanation of the circumstances which led to the denial, revocation or
suspension, along with any additional information the licensee wishes to
submit.
(d) An applicant for a real
estate license who has been convicted of or pleaded guilty or nolo contendere
to - any crime other than a traffic violation or who has had a real estate
broker's or salesperson's license denied, revoked or suspended shall furnish
the written report referred to in subsection (b) and/or (c) hereof to the
Commission at the time his/her. 'application is submitted if such conviction,
plea, denial, suspension or revocation has already occurred; otherwise such
report shall be made immediately after the conviction, plea, denial, suspension
or revocation occurs.
155. Dishonored checks.
Any applicant or licensee who shall submit to the Commission a
check or bank draft which is not honored by the bank shall not be eligible to
take any examination, or receive any grade or license from the Commission until
such time as such check is honored. The Commission in its discretion may order
any such applicant or licensee to appear before it for the purpose of
determining whether or not he/she has the necessary qualifications for
licensure, including a good reputation for truthfulness and fair dealing and
competency to act in such manner as to safeguard the interests of the
public.
The Commission shall charge a fee not to exceed $25.00 for a
dishonored check or bank draft and shall also require such check or bank draft
to be made good immediately by the maker. If such person shall be a real estate
salesperson, Associate Broker or Executive Broker, and shall fail to make such
check or bank draft good, the Commission may require such funds from the
Principal Broker under whom such person is licensed.
158. Real estate closings.
It is generally the responsibility of the Principal Broker of the
listing firm to ensure that the real estate closing is conducted properly and
in accordance with the agreement of the buyer and seller. In those cases where
the listing Principal Broker is excluded from participating in the closing,
he/she must nevertheless make all reasonable efforts to fulfill this
responsibility.
159. Death
or incapacity of broker - Continuation of business.
Upon the death or incapacity of a principal broker or the closing
of a real estate company for any reason, including bankruptcy, the Commission
may in its discretion, based upon the merits and circumstances of each case,
permit the real estate company to continue operating for a period of time not
to exceed one hundred eighty (180) days under the supervision of a person
approved by the Commission and subject to conditions prescribed by the
Commission.
204. Courses
offered by private or Vo-tech schools.
Courses in real estate related subjects offered by either
Arkansas proprietary schools licensed by the State Board of Private Career
Education, or state vocational technical schools operated by the Vocational and
Technical Education Division of the Arkansas Department of Education, shall be
deemed courses acceptable to the Commission under Section
5(c) of Act 453
of 1987 [Ark. Code Ann. Section 17-35-506(a) (3) ], provided that the courses
and instructors are first approved by the Division.
