ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 343
(Senators Helmick, Ross, Plymale, Bowman, Miller,
Wiedebusch, Buckalew, Deem, Wooton, Blatnik, Wagner,
Sharpe, Bailey, Chafin, Grubb, Dittmar, Dugan, Scott,
Anderson, Manchin, Jackson, Craigo, Schoonover, White,
Love, Yoder, Tomblin, Mr. President, Kimble and
Oliverio, original sponsors)
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[Passed March 9, 1995; in effect ninety days from passage.]
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AN ACT to amend and reenact section one, article two-c, chapter
nineteen of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; and to amend and reenact
section two, article twelve, chapter forty-seven of said
code, all relating to allowing licensed real estate brokers
who are not also licensed auctioneers and licensed auctioneers who are not also licensed real estate brokers
to auction real estate when retained by certain
fiduciaries.
Be it enacted by the Legislature of West Virginia:
That section one, article two-c, chapter nineteen of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; and that section two, article
twelve, chapter forty-seven of said code be amended and
reenacted, all to read as follows:
CHAPTER 19. AGRICULTURE.
ARTICLE 2C. AUCTIONEERS.
§19-2C-1. Definitions.
For the purposes of this article:
(a) The term "auctioneer" means and includes a person who
sells goods or real estate at public auction for another on
commission or for other compensation. The term "auctioneer"
does not include: (1) Persons conducting sales at auctions
conducted by or under the direction of any public authority or
pursuant to any judicial order or direction or to any sale
required by law to be at auction; (2) the owner of any real or
personal property when personally sold at auction by such owner
and such owner has not personally conducted an auction within the previous twelve-month period; (3) persons conducting sales
pursuant to a deed of trust or other security agreement; (4)
fiduciaries of estates when selling real or personal property of
such estate; (5) persons conducting sales on behalf of
charitable, religious, fraternal or other nonprofit
organizations; and (6) persons properly licensed pursuant to the
provisions of article twelve, chapter forty-seven of this code
when conducting an auction, any portion of which contains any
leasehold or any estate in land whether corporeal or
incorporeal, freehold or nonfreehold, when such person is
retained to conduct an auction by a receiver or trustee in
bankruptcy, a fiduciary acting under the authority of a deed of
trust or will, or a fiduciary of a decedent's estate: Provided,
That nothing contained in this article exempts persons
conducting sales at public markets from the provisions of
article two-a of this chapter, where the sale is confined solely
to livestock, poultry and other agriculture and horticulture
products.
(b) The term "public auction" means any public sale of real
or personal property when offers or bids are made by prospective
purchasers and the property sold to the highest bidder.
(c) The term "commissioner" means the commissioner of
agriculture of West Virginia.
(d) The term "department" means the West Virginia
department of agriculture.
CHAPTER 47. REGULATION OF TRADE.
ARTICLE 12. REAL ESTATE COMMISSION, BROKERS AND SALESPERSONS.
§47-12-2. Definitions and exceptions.
(a) The term "real estate broker" within the meaning of
this article includes all persons, partnerships, associations
and corporations, foreign and domestic, who for a fee,
commission or other valuable consideration or who with the
intention or expectation of receiving or collecting the same,
lists, sells, purchases, exchanges, rents, manages, leases or
auctions any real estate or the improvements thereon, including
options, or who negotiates or attempts to negotiate any such
activity; or who advertises or holds himself, herself, itself or
themselves out as engaged in such activities; or who directs or
assists in the procuring of a purchaser or prospect calculated
or intended to result in a real estate transaction. The term
"real estate broker" shall also include any person, partnership,
association or corporation employed by or on behalf of the owner or owners of lots, or other parcels of real estate, at a stated
salary or upon a fee, commission or otherwise to sell such real
estate, or any parts thereof, in lots or other parcels, and who
shall sell, manage, exchange, lease, offer, attempt or agree to
negotiate the sale, exchange or lease of any such lot or parcel
of real estate.
(b) The term "real estate" as used in this article includes
leaseholds as well as any and every interest or estate in land,
whether corporeal or incorporeal, freehold or nonfreehold, and
whether said property is situated in this state or elsewhere.
(c) The term "associate broker" means any person who for
compensation or other valuable consideration is employed by a
broker to perform all the functions authorized by a broker's
license only for and on behalf of such employing broker
including, but not limited to, authority to supervise other
salespersons employed by a broker and manage an office on behalf
of a broker.
(d) The term "real estate salesperson" means and includes
any person employed or engaged by or on behalf of a licensed
real estate broker to do or deal in any activity as included in
this section, for compensation or otherwise.
(e) One act in consideration of or with the expectation or
intention of or upon the promise of receiving compensation by
fee, commission or otherwise, in the performance of any act or
activity contained in this section, constitutes such persons,
partnerships, association or corporation, a real estate broker
and make him or her, them or it subject to the provisions and
requirements of this article.
(f) The term "real estate broker" or "real estate
salesperson" shall not include any person, partnership,
association or corporation who, as a bona fide owner or lessor,
performs any aforesaid act:
(1) With reference to property owned or leased by him or
her to the regular employees thereof, where such acts are
performed in the regular course of or as an incident to the
management of, such property and the investment therein;
(2) Nor shall this article be construed to include
attorneys-at-law, except that attorneys-at-law shall be required
to submit to the written examination required under section
seven of this article in order to qualify for a broker's
license: Provided, That an attorney-at-law who is licensed as
a real estate broker prior to the effective date of this section is exempt from the written examination required under section
seven of this article;
(3) Nor any person holding in good faith a duly executed
power of attorney from the owner authorizing the final
consummation and execution for the sale, purchase, lease or
exchange of real estate;
(4) Nor to the acts of any person while acting as a
receiver, trustee, administrator, executor, guardian or under
the order of any court or while acting under authority of a deed
of trust or will;
(5) Nor shall this article apply to public officers while
performing their duties as such;
(6) Nor shall this article apply to the acquisition or
disposition of coal, oil or gas leasehold or coal, oil or gas
interests;
(7) Nor to persons properly licensed pursuant to the
provisions of article two-c, chapter nineteen of this code when
conducting an auction, any portion of which contains any
leasehold or estate in land, when such person is retained to
conduct an auction by a receiver or trustee in bankruptcy, a
fiduciary acting under the authority of a deed of trust or will, or a fiduciary of a decedent's estate.