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:
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 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.
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