H. B. 2569

(By Delegates Collins, Proudfoot,
Staton and Kuhn)
[Introduced January 14, 1998; referred to the
Committee on the Judiciary.]

A BILL to amend and reenact section two, article twelve, chapter forty-seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to allowing rental property to be sublet by other than a licensed real estate broker or salesperson.

Be it enacted by the Legislature of West Virginia:
That section two, article twelve, chapter forty-seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted to read as follows:
§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 the 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 the 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 the 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 does 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 the 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 the 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.
(8) Nor does this article apply to any person employed by a real estate broker in a noncommissioned clerical capacity who may in the course of employment be required to:
(A) Disseminate brokerage preprinted and predetermined real estate sales and rental information;
(B) Accept and process rental reservations or bookings in a manner and procedure predetermined by the broker;
(C) Collect predetermined rental fees for the rentals which are to be promptly tendered to the broker; or
(D) Any combination thereof.

NOTE: The purpose of this bill is to allow a real estate broker to hire unlicensed persons to perform routine office procedures, including disseminating and distributing preprinted, predetermined information to prospective clientele, receive rental reservations, checking in vacation or short term renters and collecting predetermined fees for lodging establishments.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.