View Daily Data Tracking History
View Bill Text
View Statement of Purpose / Fiscal Impact
S1312.......................................by COMMERCE AND HUMAN RESOURCES REAL ESTATE - Amends, repeals and adds to existing law to enact the Idaho Real Estate License Law. 01/26 Senate intro - 1st rdg - to printing 01/27 Rpt prt - to Com/HuRes 02/11 Rpt out - rec d/p - to 2nd rdg 02/14 2nd rdg - to 3rd rdg 02/16 3rd rdg - PASSED - 32-1-2 AYES--Andreason, Boatright, Bunderson, Burtenshaw, Cameron, Crow, Danielson, Darrington, Davis, Deide, Dunklin, Frasure, Geddes, Hawkins, Ingram, Ipsen, Keough, King-Barrutia, Lee, McLaughlin, Noh, Parry, Richardson, Riggs, Risch, Sandy, Schroeder, Stegner, Stennett, Thorne, Wheeler, Williams NAYS--Whitworth Absent and excused--Branch, Sorensen Floor Sponsor - Davis Title apvd - to House 02/17 House intro - 1st rdg - to Bus 03/22 Rpt out - rec d/p - to 2nd rdg 03/23 2nd rdg - to 3rd rdg 04/03 3rd rdg - PASSED - 65-0-5 AYES -- Alltus, Barraclough(Barraclough), Barrett, Bell, Bieter, Black, Boe, Bruneel, Callister, Campbell, Chase, Cheirrett, Crow, Cuddy, Deal, Denney, Ellsworth, Field(13), Field(20), Gagner, Geddes, Gould, Hadley, Hammond, Hansen(23), Henbest, Hornbeck, Jaquet, Jones, Judd, Kellogg, Kempton, Kendell, Kunz, Lake, Loertscher(Loertscher), Mader, Marley, McKague, Meyer, Montgomery, Mortensen, Moss, Moyle, Pearce, Pischner, Pomeroy, Reynolds, Ridinger, Ringo, Robison, Sali, Schaefer, Sellman, Shepherd, Smith, Smylie, Stevenson, Stoicheff, Stone, Taylor, Tilman, Trail, Wood, Zimmermann NAYS -- None Absent and excused -- Clark, Hansen(29), Linford, Wheeler, Mr Speaker Floor Sponsors - Kellogg, Gagner Title apvd - to Senate 04/04 To enrol - rpt enrol - Pres signed 04/05 Sp signed 04/06 To Governor 04/14 Governor signed Session Law Chapter 285 Effective: 07/01/00
|||| LEGISLATURE OF THE STATE OF IDAHO |||| Fifty-fifth Legislature Second Regular Session - 2000 IN THE SENATE SENATE BILL NO. 1312 BY COMMERCE AND HUMAN RESOURCES COMMITTEE 1 AN ACT 2 RELATING TO THE IDAHO REAL ESTATE LICENSE LAW; REPEALING SECTIONS 54-2021 3 THROUGH 54-2053, IDAHO CODE; AMENDING THE HEADING FOR CHAPTER 20, TITLE 4 54, IDAHO CODE; AMENDING CHAPTER 20, TITLE 54, IDAHO CODE, BY THE ADDITION 5 OF NEW SECTIONS 54-2001 THROUGH 54-2081, IDAHO CODE, TO PROVIDE A SHORT 6 TITLE, TO REQUIRE A LICENSE TO ENGAGE IN THE BUSINESS OR ACT AS A REAL 7 ESTATE BROKER OR REAL ESTATE SALESPERSON, TO PROVIDE EXCEPTIONS TO LICEN- 8 SURE, TO PROVIDE DEFINITIONS, TO CREATE THE IDAHO REAL ESTATE COMMISSION, 9 TO PROVIDE QUALIFICATIONS AND TERMS OF COMMISSIONERS AND ORGANIZATION OF 10 THE COMMISSION, TO PROVIDE FOR COMPENSATION, POWERS AND DUTIES OF THE COM- 11 MISSION, TO ESTABLISH THE IDAHO REAL ESTATE EDUCATION COUNCIL, TO PROVIDE 12 FOR APPOINTMENTS TO THE COUNCIL, QUALIFICATIONS, TERMS AND COMPENSATION OF 13 MEMBERS, TO PROVIDE FOR TYPES OF LICENSES, TO PROVIDE MINIMUM REQUIREMENTS 14 FOR AN INDIVIDUAL PRIMARY IDAHO LICENSE, TO PROVIDE FOR ERRORS AND OMIS- 15 SIONS INSURANCE, TO PROVIDE FOR LICENSE EXAMS, TO PROVIDE REQUIREMENTS FOR 16 INDIVIDUALS ACTIVELY LICENSED IN ANOTHER STATE OR JURISDICTION TO OBTAIN 17 PRIMARY IDAHO LICENSURE, TO PROVIDE REQUIREMENTS FOR PRIMARY IDAHO 18 LICENSES FOR LEGAL BUSINESS ENTITIES, SOLE PROPRIETORSHIPS AND BRANCH 19 OFFICES, TO PROVIDE FOR RECIPROCAL IDAHO LICENSES, TO PROVIDE FOR LICENSE 20 RENEWALS AND INACTIVE LICENSES, TO PROVIDE FOR DENIAL OF LICENSE APPLICA- 21 TIONS, TO PROVIDE FEES, TO PROVIDE FOR DISPOSITION OF FUNDS, TO PROVIDE 22 PRELICENSE EDUCATION REQUIREMENTS, TO PROVIDE CONTINUING EDUCATION 23 REQUIREMENTS, TO PROVIDE FOR A CERTIFICATION PROGRAM FOR REAL ESTATE EDU- 24 CATION PROVIDERS, INSTRUCTORS AND COURSE CONTENT, TO PROVIDE CERTIFICATION 25 REQUIREMENTS, TO PROVIDE FOR CERTIFICATION OF COURSE PROVIDERS, TO PROVIDE 26 DUTIES AND REQUIREMENTS OF CERTIFIED COURSE PROVIDERS, TO PROVIDE THE TERM 27 OF PROVIDER CERTIFICATION AND RENEWAL, TO PROVIDE FOR NOTICE OF POTENTIAL 28 EXPIRATION OF CERTIFICATION, TO PROVIDE FOR EXPIRATION OR WITHDRAWAL OF 29 PROVIDER CERTIFICATION AND NOTICE TO STUDENTS, TO PROVIDE FOR WITHDRAWAL 30 OF IDAHO CERTIFICATION FOR CAUSE, TO PROVIDE FOR CERTIFICATION OF INSTRUC- 31 TORS AND INSTRUCTOR QUALIFICATIONS, TO PROVIDE FOR COMMISSION DISCRETION 32 IN INSTRUCTOR CERTIFICATION, TO PROVIDE THE TERM OF INSTRUCTOR CERTIFICA- 33 TION AND RENEWAL, TO PROVIDE FOR CERTIFICATION OF COURSES AND COURSE CON- 34 TENT, TO PROVIDE THE TERM OF COURSE CERTIFICATION AND RENEWAL, TO PROVIDE 35 RESPONSIBILITIES OF A DESIGNATED BROKER, TO PROVIDE FOR BROKER AND BRANCH 36 OFFICE MANAGER ABSENCES AND CHANGES, TO PROVIDE FOR A MAIN OFFICE OR BUSI- 37 NESS LOCATION, TO PROVIDE FOR TRUST ACCOUNTS AND ENTRUSTED PROPERTY, TO 38 PROVIDE REQUIREMENTS FOR CREATION OF NONINTEREST-BEARING TRUST ACCOUNTS, 39 TO PROVIDE FOR INTEREST-BEARING TRUST ACCOUNTS, TO PROVIDE FOR TRUST 40 ACCOUNT RECORDKEEPING, TO PROVIDE FOR TRUST ACCOUNT DEPOSITS AND RECEIPT 41 OF CONSIDERATION, TO PROVIDE FOR TRUST ACCOUNT DISBURSEMENTS, TO PROVIDE 42 FOR DISPUTED EARNEST MONEY, TO PROVIDE THE DUTIES AND RECORDKEEPING 43 REQUIRED OF THE BROKER RESPONSIBLE FOR A TRANSACTION, TO PROVIDE RECORD 44 RETENTION SCHEDULES, TO SPECIFY THE REQUIRED ELEMENTS OF BROKERAGE REPRE- 45 SENTATION AGREEMENTS, TO PROVIDE FOR OFFERS TO PURCHASE, TO PROVIDE FOR 46 ELECTRONICALLY GENERATED AGREEMENTS, TO PROVIDE FOR ADVERTISING, TO SPEC- 2 1 IFY PROHIBITED CONDUCT WITH RESPECT TO COMPENSATION, COMMISSIONS AND FEES, 2 TO PROVIDE FOR LICENSEES DEALING WITH THEIR OWN PROPERTY, TO PROVIDE FOR 3 TERMINATION OF LICENSE BUSINESS RELATIONSHIPS, TO PROVIDE FOR THE DEATH OR 4 INCAPACITY OF A DESIGNATED BROKER, TO PROVIDE THE AUTHORITY OF THE COMMIS- 5 SION TO INVESTIGATE AND DISCIPLINE LICENSEES, TO PROVIDE FOR REVOCATION, 6 SUSPENSION OR OTHER DISCIPLINARY ACTION, TO PROVIDE GROUNDS FOR DISCIPLIN- 7 ARY ACTION, TO PROVIDE FOR REVIEW OF COMMISSION DISCIPLINARY ACTIONS, TO 8 AUTHORIZE THE COMMISSION TO REFER A COMPLAINT TO THE COUNTY PROSECUTING 9 ATTORNEY, TO PROVIDE THE PENALTY FOR ACTING AS A BROKER OR SALESPERSON 10 WITHOUT A LICENSE, TO PROVIDE FOR INJUNCTIVE RELIEF AND CEASE AND DESIST 11 ORDERS, TO PROVIDE FOR WITNESSES, DEPOSITIONS, FEES AND SUBPOENAS, TO 12 ESTABLISH THE REAL ESTATE RECOVERY FUND, TO PROVIDE FOR AUGMENTATION OF 13 AND RECOVERY FROM THE FUND, TO PROVIDE THE AUTHORITY OF THE COMMISSION IN 14 AN ACTION FOR RECOVERY FROM THE FUND, TO PROVIDE FOR A COURT ORDER REQUIR- 15 ING PAYMENT FROM THE FUND, TO PROVIDE FOR LICENSE SUSPENSION OF THE BRO- 16 KER, ASSOCIATE BROKER OR SALESPERSON UPON ENTRY OF THE COURT ORDER AND TO 17 PROVIDE CONDITIONS FOR LICENSE REINSTATEMENT, TO PROVIDE THE ORDER OF 18 CLAIM PAYMENTS IF THE RECOVERY FUND BALANCE IS INSUFFICIENT AND TO PROVIDE 19 FOR INTEREST ON UNPAID CLAIMS, TO PROVIDE THE COMMISSION'S RIGHT TO SUB- 20 ROGATION, TO PROVIDE FOR A WAIVER OF RIGHTS, TO PRESERVE THE AUTHORITY OF 21 THE COMMISSION TO TAKE DISCIPLINARY ACTION, TO REQUIRE FILING OF A STATE- 22 MENT WITH THE COMMISSION UPON TERMINATION OF A SALESPERSON FOR VIOLATION 23 OF DISCIPLINARY PROVISIONS, AND TO PROVIDE FOR PUBLIC DISCLOSURE OF 24 RECORDS; AMENDING SECTION 54-2060, IDAHO CODE, TO REDESIGNATE THE SECTION 25 AND TO PROVIDE CORRECT CODE REFERENCES; AMENDING SECTION 54-2061, IDAHO 26 CODE, TO REDESIGNATE THE SECTION, TO PROVIDE PROPER CODE REFERENCES AND TO 27 REDEFINE "CLIENT" AND "CUSTOMER"; AMENDING SECTION 54-2062, IDAHO CODE, TO 28 REDESIGNATE THE SECTION, TO DELETE OBSOLETE LANGUAGE AND TO REQUIRE A SEP- 29 ARATE WRITTEN DOCUMENT SHOWING AGREEMENT BY THE BROKERAGE, BUYER OR SELLER 30 TO REPRESENTATION; AMENDING SECTION 54-2063, IDAHO CODE, TO REDESIGNATE 31 THE SECTION, TO REQUIRE THAT EACH BROKERAGE KEEP AN INITIALED, DATED 32 RECORD OF A BUYER OR SELLER'S RECEIPT OF THE AGENCY DISCLOSURE BROCHURE, 33 TO PROVIDE CORRECT CODE REFERENCES AND TO PROVIDE THAT NEITHER THE BRO- 34 CHURE OR REPRESENTATION CONFIRMATION SHALL CREATE A BROKERAGE RELATION- 35 SHIP; AMENDING SECTION 54-2064, IDAHO CODE, TO REDESIGNATE THE SECTION AND 36 TO INCLUDE A PROSPECTIVE BUYER WITHIN THE PURVIEW OF THE SECTION; AMENDING 37 SECTION 54-2065, IDAHO CODE, TO REDESIGNATE THE SECTION; AMENDING SECTION 38 54-2066, IDAHO CODE, TO REDESIGNATE THE SECTION AND PROVIDE CORRECT CODE 39 REFERENCES; AMENDING SECTIONS 54-2067, 54-2068, 54-2069, 54-2070 AND 40 54-2071, IDAHO CODE, TO REDESIGNATE THE SECTIONS; AMENDING SECTION 41 54-2072, IDAHO CODE, TO REDESIGNATE THE SECTION AND TO PROVIDE FOR EQUITA- 42 BLE REMEDIES FOR BREACH OF FIDUCIARY DUTIES; AMENDING SECTION 54-2073, 43 IDAHO CODE, TO REDESIGNATE THE SECTION; AMENDING CHAPTER 20, TITLE 54, 44 IDAHO CODE, BY THE ADDITION OF A NEW SECTION 54-2096, IDAHO CODE, TO PRO- 45 VIDE FOR SEVERABILITY; AMENDING SECTION 54-2074, IDAHO CODE, TO REDESIG- 46 NATE THE SECTION AND TO MAKE A TECHNICAL CORRECTION; AMENDING SECTION 47 33-2101A, IDAHO CODE, TO DELETE A CODE REFERENCE; AND PROVIDING AN EFFEC- 48 TIVE DATE. 49 Be It Enacted by the Legislature of the State of Idaho: 50 SECTION 1. That Sections 54-2021 through 54-2053, Idaho Code, be, and the 51 same are hereby repealed. 52 SECTION 2. That the heading for Chapter 20, Title 54, Idaho Code, be, and 3 1 the same is hereby amended to read as follows: 2 IDAHO REAL ESTATE BROKER'SLICENSE LAW 3 SECTION 3. That Chapter 20, Title 54, Idaho Code, be, and the same is 4 hereby amended by the addition thereto of NEW SECTIONS, to be known and des- 5 ignated as Sections 54-2001 through 54-2081, Idaho Code, and to read as fol- 6 lows: 7 54-2001. SHORT TITLE. Sections 54-2001 through 54-2081, Idaho Code, shall 8 be known and may be cited as "Idaho Real Estate License Law." 9 54-2002. LICENSURE REQUIRED. No person shall engage in the business or 10 act in the capacity of real estate broker or real estate salesperson in this 11 state without an active Idaho real estate license therefore. Unless exempted 12 from this chapter, any single act described within the definitions of "real 13 estate broker" or "real estate salesperson" shall be sufficient to constitute 14 "engaging in the business" within the meaning of this chapter. Any person who 15 engages in the business or acts in the capacity of real estate broker or 16 salesperson in this state, with or without an Idaho real estate license, has 17 thereby submitted to the jurisdiction of the state of Idaho and to the admin- 18 istrative jurisdiction of the Idaho real estate commission, and shall be sub- 19 ject to all penalties and remedies available under Idaho law for any violation 20 of this chapter. 21 54-2003. EXCEPTIONS TO LICENSURE. (1) Except as otherwise stated below, 22 an Idaho real estate license is not required for the following: 23 (a) The purchase, option, exchange or sale of any interest in real prop- 24 erty, or business opportunity for a person's own account or use; 25 (b) The acquisition, exchange or other disposition of any interest in 26 real property or business opportunity by its owner or a regular employee 27 of the owner, acting within the scope of his or her employment; 28 (c) The sale, exchange, purchase or other disposition of any interest in 29 real property or business opportunity by a duly authorized attorney in 30 fact whose power of attorney is granted for the purpose of consummating a 31 single transaction involving the conveyance of a single or undivided 32 interest in a parcel of real property or in a business opportunity; 33 (d) The acquisition or other disposition of any interest in real property 34 or business opportunity by the following parties only if such acquisition 35 or disposition is undertaken in the performance of their duties as: 36 (i) A receiver, trustee in bankruptcy, legal guardian or conserva- 37 tor; 38 (ii) An administrator, executor or personal representative of an 39 estate; 40 (iii) Any person selling pursuant to the default provisions of a deed 41 of trust, or any duly authorized agent thereof. 42 (e) The acquisition or other disposition of any interest in real property 43 or business opportunity by an attorney at law in connection with client 44 representation, and if the attorney is not regularly engaged in the con- 45 duct or business of real estate broker or salesperson. 46 (2) An actively licensed real estate broker, associate broker or 47 salesperson must comply with this chapter, regardless of whether the licensee 48 otherwise qualifies for any of the exceptions of subsection (1) of this sec- 49 tion. 4 1 (3) Exceptions to licensure shall not be used in any way to evade the 2 purposes of this chapter. Any such attempt to evade this chapter shall be con- 3 sidered the unlicensed and unlawful practice of real estate. 4 54-2004. DEFINITIONS. As used in this chapter: 5 (1) "Associate broker" means an individual who has qualified personally 6 as a real estate broker in Idaho under this chapter, but is licensed under, 7 associated with and represents a designated broker in the performance of acts 8 requiring a real estate license in Idaho. 9 (2) "Business opportunity" means and includes an established business, 10 good will of an established business, or any interest therein, or any one (1) 11 or combination thereof, where a sale or transfer of an interest in land, 12 including, but not limited to, an assignment of a lease, is involved in the 13 transaction. 14 (3) "Brokerage company" means a real estate business, whether a sole pro- 15 prietorship, a legal entity, or any other licensed person engaged in acts 16 requiring a real estate license in Idaho, and which is conducting or holding 17 itself out as conducting the business of real estate through a designated bro- 18 ker. 19 (4) "Commission" means the Idaho real estate commission, unless the con- 20 text clearly indicates a different meaning. 21 (5) "Convicted" means a plea of nolo contendere or guilty, a jury verdict 22 of guilty or a court decision of guilt whether or not a judgment or sentence 23 has been imposed, withheld or suspended. 24 (6) "Council" means the Idaho real estate education council. 25 (7) "Dealer in options" means any person, firm, partnership, association 26 or corporation who shall directly or indirectly take, obtain or use options to 27 purchase, exchange, lease option or lease purchase real property or any inter- 28 est therein for another or others whether or not the options shall be in his 29 or its name and whether or not title to the property shall pass through the 30 name of the person, firm, partnership, association or corporation in connec- 31 tion with the purchase, sale, exchange, lease option or lease purchase of the 32 real property, or interest therein. 33 (8) "Double contract" means two (2) or more written or unwritten con- 34 tracts of sale, purchase and sale agreements, loan applications, or any other 35 agreements, one of which is not made known to the prospective loan underwriter 36 or the loan guarantor, to enable the buyer to obtain a larger loan than the 37 true sales price would allow, or to enable the buyer to qualify for a loan 38 which he or she otherwise could not obtain. 39 (9) "Designated broker" means an individual who is licensed as a real 40 estate broker in Idaho and who is designated by the brokerage company to be 41 responsible for the supervision of the brokerage company and the activities of 42 any associated licensees in accordance with this chapter. 43 (10) "Executive director" means the executive director of the Idaho real 44 estate commission. 45 (11) "Legal business entity" means and includes any type of corporation, 46 partnership, limited liability company or limited liability partnership, a 47 governmental entity, trust or other entity capable of conducting business. 48 (12) "Licensee" means any person who is licensed in accordance with this 49 chapter to engage in the business or act in the capacity of real estate bro- 50 ker, associate broker or real estate salesperson. 51 (13) "Limited broker" means a broker individually qualified to do business 52 in Idaho, but who may not have associate brokers or salespersons licensed with 53 that broker. 54 (14) "Person" means and includes an individual, or any legal business 5 1 entity. 2 (15) "Primary Idaho license" means an Idaho real estate license not 3 obtained by reciprocal agreement. 4 (16) "Provisional license" means an extension of the period of active 5 licensure, beyond the licensee's expiration date, granted by the commission 6 for the purpose of allowing the licensee to complete the continuing education 7 requirements set forth in section 54-2023, Idaho Code, or for any other pur- 8 pose allowed by this chapter. 9 (17) "Real estate broker" means and includes: 10 (a) Any person other than a real estate salesperson, who, directly or 11 indirectly, while acting for another, for compensation or a promise or an 12 expectation thereof, engages in any of the following: sells, lists, buys, 13 or negotiates, or offers to sell, list, buy or negotiate the purchase, 14 sale, option or exchange of real estate or any interest therein or busi- 15 ness opportunity or interest therein for others. 16 (b) Any actively licensed broker while, directly or indirectly, acting on 17 the broker's own behalf; 18 (c) Any person who represents to the public that the person is engaged in 19 any of the above activities; 20 (d) Any person who directly or indirectly engages in, directs, or takes 21 any part in the procuring of prospects, or in the negotiating or closing 22 of any transaction which does or is calculated to result in any of the 23 acts above set forth. 24 (e) A dealer in options as defined in this section. 25 (18) "Real estate salesperson" or "salesperson" means any person who has 26 qualified and is licensed as a real estate salesperson in Idaho under this 27 chapter, and is licensed under, associated with, and represents a designated 28 broker in the performance of acts requiring a real estate license in Idaho. 29 (19) "Reciprocal license" means an Idaho real estate license issued to any 30 person based upon a specific, written reciprocal agreement between Idaho and 31 another state where the person holds a primary license. 32 (20) "Regulated real estate transaction" means those real estate transac- 33 tions for which a real estate license is required under chapter 20, title 54, 34 Idaho Code. 35 (21) "Responsible broker" means the designated broker in the regulated 36 real estate transaction who is responsible for the accounting and transaction 37 files for the transaction, in the manner described in section 54-2048, Idaho 38 Code. 39 (22) "Sales associate" means a salesperson or an associate broker licensed 40 under and associated with a designated broker. 41 (23) "State or jurisdiction" means and includes any of the fifty (50) 42 states and any foreign jurisdiction that issue real estate licenses substan- 43 tially similar to those provided for in this chapter. 44 (24) "Wall license" means the certificate of license issued by the commis- 45 sion. 46 54-2005. THE IDAHO REAL ESTATE COMMISSION. There is hereby created in the 47 department of self-governing agencies the Idaho real estate commission, for 48 the purpose of administering this chapter. The commission shall consist of 49 four (4) members appointed by the governor as follows: one (1) from the north- 50 ern district consisting of Idaho, Lewis, Nez Perce, Clearwater, Latah, Bene- 51 wah, Boundary, Shoshone, Kootenai and Bonner counties; one (1) from the south- 52 eastern district consisting of Lemhi, Butte, Clark, Fremont, Jefferson, Madi- 53 son, Teton, Bonneville, Bingham, Caribou, Bear Lake, Franklin, Oneida, Power 54 and Bannock counties; one (1) from the southwestern district consisting of 6 1 Owyhee, Elmore, Ada, Canyon, Boise, Gem, Payette, Washington, Adams and Valley 2 counties; and one (1) from the south central district consisting of Blaine, 3 Camas, Cassia, Custer, Gooding, Jerome, Lincoln, Minidoka and Twin Falls coun- 4 ties. 5 54-2006. QUALIFICATIONS OF COMMISSIONERS, TERM AND ORGANIZATION. (1) Each 6 member of the commission shall be an actively licensed Idaho designated real 7 estate broker or associate broker who has had at least five (5) years active 8 license experience as a designated broker or associate broker in the real 9 estate business in Idaho. 10 (2) Each regular appointment, other than an appointment to fill an unex- 11 pired term, shall commence on July 1 of the year of appointment and be for a 12 term of four (4) years. Each commissioner shall hold office until a qualified 13 successor is appointed. Upon the death, resignation or removal of any member 14 of the commission, the governor shall appoint a qualified licensed real estate 15 broker or associate broker to fill out the unexpired term. The governor may 16 remove any member from the commission for neglect of duty required by law, for 17 incompetency, or for unprofessional or dishonorable conduct. 18 Each year, within thirty (30) days after the appointment of the members of 19 the commission, the commission shall call a meeting and elect a chair, a vice 20 chair, and a commissioner to serve on the Idaho real estate education council. 21 Thereafter the chair may call meetings of the commission whenever he or she 22 deems it advisable, but if the chair refuses to call a meeting upon written 23 demand of the other three (3) members of the commission, then such members may 24 call the meeting. 25 (3) The commission may hire an executive director and such other assis- 26 tants as it may require from either within or without the commission, and 27 shall pay these persons a compensation as determined by the commission. The 28 position of executive director shall be a nonclassified state employee, and 29 such person shall be an at-will employee of the commission. 30 54-2007. COMPENSATION, POWERS AND DUTIES OF COMMISSION. Members shall be 31 compensated as provided by section 59-509(n), Idaho Code. The commission is 32 charged with administering and enforcing all provisions of this chapter, and 33 is expressly vested with the power and authority to make and enforce any and 34 all reasonable rules as it deems necessary for administering and enforcing 35 this chapter. 36 54-2008. ESTABLISHMENT OF IDAHO REAL ESTATE EDUCATION COUNCIL. An educa- 37 tion council consisting of six (6) members, four (4) of whom are to be 38 appointed by the Idaho real estate commission, plus one (1) commissioner and 39 the commission's executive director, may be established to act as an advisory 40 group to the commission, and to perform functions as set forth in this chapter 41 and in the council's bylaws, which bylaws must be approved by the commission. 42 The council shall recommend to the commission real estate education policy and 43 course content quality for all education courses approved by the commission as 44 meeting the education requirements of this chapter and its rules, and for such 45 other courses or clinics deemed advisable by the commission for promoting 46 higher standards of practice in the real estate business. The council will 47 prepare for approval by the commission any additional recommended procedures 48 or guidelines for certifying educational courses, instructors and providers. 49 54-2009. COUNCIL APPOINTMENT, QUALIFICATIONS AND TERM. One (1) member of 50 the council shall be named from each of the four (4) geographic districts of 51 the state: north, south, east and west. The education director of the commis- 7 1 sion shall serve as the council executive at all council meetings and func- 2 tions. Each education council member shall be appointed for a term of four (4) 3 years. The commission may remove any council member for neglect of duty, for 4 incompetency, or for unprofessional, dishonorable or any other conduct which 5 the commission believes interferes with that person's ability to properly act 6 or serve as a council member. 7 54-2010. COMPENSATION. Members of the education council are not employees 8 of the state of Idaho, but shall be reimbursed expenses in the same manner as 9 state employees in addition to a per diem allowance in the same amount as that 10 received by the commissioners for each day of approved service. 11 54-2011. TYPES OF LICENSES. The commission may issue a primary or recip- 12 rocal Idaho real estate license to any individual, sole proprietorship or 13 legal business entity in accordance with the requirements of this chapter. An 14 individual may be licensed as a real estate salesperson, an associate broker, 15 or a designated broker acting for a sole proprietorship or legal business 16 entity. 17 54-2012. MINIMUM REQUIREMENTS FOR AN INDIVIDUAL PRIMARY IDAHO LICENSE. 18 (1) Requirements for all individual primary licenses. Unless a qualification 19 is waived or modified by the commission for good cause and upon special con- 20 sideration, each person seeking a primary Idaho real estate license as a 21 salesperson, associate broker or designated broker shall meet all of the fol- 22 lowing minimum qualifications: 23 (a) Be an individual; 24 (b) Be eighteen (18) years of age or older; 25 (c) Furnish satisfactory proof that the applicant graduated from an 26 accredited high school or its equivalent or holds a certificate of general 27 education; 28 (d) Not have had a real estate or other professional or occupational 29 license revoked, suspended, or surrendered, or the renewal refused, for a 30 disciplinary violation involving fraud, misrepresentation or dishonest or 31 dishonorable dealing, in Idaho or any other jurisdiction, within five (5) 32 years immediately prior to the date the application for license is submit- 33 ted to the commission; 34 (e) Not have been convicted, issued any fine, placed on probation, 35 received a withheld judgment or completed any sentence of confinement for 36 or on account of any felony, or any misdemeanor involving fraud, misrepre- 37 sentation or dishonest or dishonorable dealing, in a state or federal 38 court, within five (5) years immediately prior to the date the application 39 for license is submitted to the commission; 40 (f) Complete all prelicense education requirements as provided for in 41 section 54-2022, Idaho Code, for a salesperson's or broker's license; 42 (g) Pass the commission-approved real estate licensing exam for a sales 43 or broker license in the time and manner stated in section 54-2014, Idaho 44 Code, and pay the required exam fees; 45 (h) Be fingerprinted by an authorized law enforcement agency, and file 46 these fingerprints with the commission for the purpose of determining 47 whether the qualifications for licensure are fulfilled; the fingerprints 48 will be forwarded to the federal bureau of investigation or the Idaho 49 department of law enforcement; all fees charged by the commission and the 50 law enforcement agency for fingerprint services shall be paid by the 51 applicant; 52 (i) Sign and file with the commission an irrevocable consent to service, 8 1 appointing the commission's executive director to act as the licensee's 2 agent upon whom all judicial and other process or legal notices directed 3 to such licensee may be served, and consenting that any lawful process 4 against the licensee that is served upon the executive director shall be 5 of the same legal force and validity as if served upon the licensee and 6 that the authority shall continue in force so long as any liability 7 remains outstanding in this state. Upon receipt of any such process or 8 notice, the executive director shall immediately mail a copy of the same 9 by certified mail to the last known business address of the licensee. All 10 licensees shall provide the commission a full and current mailing address 11 and shall immediately notify the commission in writing of any change in 12 mailing address; 13 (j) If licensing as an active salesperson or associate broker, provide 14 the name and physical address of the main business location of the desig- 15 nated broker with whom the applicant will be licensed, and the signature 16 of that broker; or, if licensing as a designated broker, provide the name 17 and physical address of the main business location; 18 (k) Submit a properly completed application and all license, application 19 and other fees listed in section 54-2020, Idaho Code, or as otherwise 20 required by statute or rule; and 21 (l) Provide satisfactory proof of meeting the mandatory errors and omis- 22 sions insurance requirement for real estate licensees, as stated in sec- 23 tion 54-2013, Idaho Code. 24 (2) Additional requirements for broker and associate broker licenses. 25 Applicants seeking a primary Idaho license as a broker or associate broker 26 shall meet the additional following qualifications: 27 (a) Provide satisfactory evidence of having been actively engaged for two 28 (2) years as a licensed real estate salesperson within five (5) years 29 immediately prior to the date upon which the individual makes application: 30 (i) A broker or associate broker applicant may be required to fur- 31 nish a report of listings and sales accomplished by the applicant 32 during two (2) or more years within the last five (5) years of licen- 33 sure immediately prior to the application date; 34 (ii) This report shall be certified as correct by the broker or bro- 35 kers with whom the applicant has been associated; 36 (iii) The broker experience requirement may be modified or reduced, 37 in whole or in part, at the discretion of the commission, based upon 38 the applicant's educational background, or experience in related or 39 affiliated business activities; 40 (iv) The commission in its discretion may make such additional 41 investigation and inquiry relative to the applicant as it shall deem 42 advisable; 43 (b) Designate a physical office location and a business name. The commis- 44 sion may refuse to issue a license to any person if the business name is 45 the same as that of any person whose license has been suspended or revoked 46 or is so similar as to be easily confused with another licensee's name by 47 members of the general public. However, nothing in this subsection shall 48 restrict an individual from obtaining a license in his or her own legal 49 name. 50 (c) If currently licensed in Idaho as a salesperson and applying for a 51 license as an Idaho broker or associate broker, the individual shall sub- 52 mit a new fingerprint card for processing with the application and pay 53 associated fees. 54 54-2013. ERRORS AND OMISSIONS INSURANCE. (1) Each licensee who is activ- 9 1 ely licensed under this chapter shall, as a condition to licensing, carry and 2 maintain errors and omissions insurance to cover all licensed activities under 3 the provisions of this chapter. 4 (2) The commission shall make the insurance required under the provisions 5 of this section available to each licensee by contracting with an insurance 6 provider for errors and omissions insurance coverage for each licensee after 7 competitive, sealed bidding in accordance with chapter 57, title 67, Idaho 8 Code. The exact premium shall be set by the commission by motion. 9 (3) Any policy obtained by the commission shall be available to each 10 licensee with no right on the part of the insurance provider to cancel cover- 11 age for any licensee. 12 (4) Each licensee shall have the option of obtaining errors and omissions 13 insurance independently, if the coverage contained in an independently 14 obtained policy complies with the minimum requirements established by the com- 15 mission. 16 (5) The commission shall determine the terms and conditions of coverage 17 required under the provisions of this section including, but not limited to, 18 the minimum limits of coverage, the permissible deductible and the permissible 19 exemptions. 20 (6) A certificate of coverage, showing compliance with the required terms 21 and conditions of coverage, shall be filed with the commission ten (10) days 22 prior to the license renewal date by each licensee who elects not to partici- 23 pate in the insurance program administered by the commission. 24 (7) If the commission is unable to obtain errors and omissions insurance 25 coverage to insure all licensees who choose to participate in the insurance 26 program at a reasonable premium, not to exceed one hundred forty dollars 27 ($140) per year, per licensee, the requirement of insurance coverage as pro- 28 vided in this section shall be void during the applicable contract period. 29 (8) The commission is also specifically empowered to charge and collect 30 an administrative fee in addition to the premium paid from each licensee who 31 obtains errors and omissions insurance through the commission contract, which 32 fee shall not exceed ten dollars ($10.00) per licensee. This administrative 33 fee shall be of an amount sufficient to raise that revenue required to admin- 34 ister the provisions of this section. The limit in subsection (7) of this sec- 35 tion applies only to premium cost and not to any administrative fee charged. 36 54-2014. LICENSE EXAMS. (1) Exam required. Unless a written certificate 37 of waiver is obtained from the commission and submitted with the application, 38 an individual applicant seeking a primary Idaho real estate license shall take 39 and pass the national portion and the Idaho state portion of an approved exam 40 administered by or through the commission. The applicant shall take and pass 41 the required portion or portions of the exam within no more than twelve (12) 42 months immediately preceding the date of application. 43 (2) Preregistration for the exam. An applicant may preregister to sit and 44 take the exam by submitting a completed preregistration application form and a 45 nonrefundable exam fee in an amount established by motion of the commission, 46 not to exceed one hundred dollars ($100). The application and fee shall be 47 submitted directly to the testing company administering the exam, or to the 48 commission, as specified by the commission, and shall be postmarked in the 49 manner and time specified by the commission. Failure to appear for any reason 50 for the exam shall cancel the application. A new application and fee shall be 51 required to take the exam at a future time. 52 (3) Walk-in registration for the exam. An applicant may appear at a test- 53 ing center and take the exam without having preregistered so long as seating 54 remains available at the center. The applicant shall submit a completed exam 10 1 application and a walk-in exam fee in an amount established by motion of the 2 commission, not to exceed one hundred ten dollars ($110), at the time the 3 applicant is admitted to take the exam. 4 (4) Waiver of national portion of exam. An applicant who has obtained a 5 written certificate from the commission waiving the national portion of the 6 exam shall be required to take and pass the Idaho state portion of the exam 7 only. The certificate of waiver and exam fee shall be submitted with the 8 application for exam. 9 (5) Failure to pass the exam. An applicant who fails to pass the exam may 10 reapply to take another exam. The applicant must complete a new application 11 and submit a new exam fee. 12 (6) The commission shall establish, by motion, fees for the exam which, 13 in its discretion, are sufficient to raise the revenue required to administer 14 the exam. Fees so established shall remain effective from year to year and may 15 be altered only upon proper motion by the commission. 16 54-2015. INDIVIDUALS ACTIVELY LICENSED IN ANOTHER STATE OR JURISDICTION 17 SEEKING PRIMARY IDAHO LICENSURE. (1) An individual who is currently and activ- 18 ely licensed as a real estate broker or salesperson in another state or juris- 19 diction at the time of application for a primary Idaho real estate license 20 shall meet all qualifications listed in section 54-2012, Idaho Code, for the 21 type of license sought, except that the applicant shall not be required to 22 furnish proof of the educational prerequisites described in subsections (1)(c) 23 and (1)(f) of section 54-2012, Idaho Code. In addition, such applicant shall 24 provide a current, certified license history from the other licensing state or 25 jurisdiction, which history shall indicate any disciplinary action taken 26 against the applicant's license by the other licensing state or jurisdiction, 27 and the status and standing of the applicant's license in the other state or 28 jurisdiction. 29 (2) An applicant who holds an active license, in good standing, in 30 another state or jurisdiction may request a waiver of the national portion of 31 the exam required for Idaho licensure. To have the national portion of the 32 exam waived, a certificate of waiver must be obtained from the Idaho real 33 estate commission and submitted with the application for exam as provided in 34 subsection (4) of section 54-2014, Idaho Code. 35 (3) An individual who is currently and actively licensed in another state 36 or jurisdiction that administers a real estate exam may be issued a primary 37 Idaho license without further exam or proof of educational prerequisites pur- 38 suant to written agreement between Idaho and the other state or jurisdiction, 39 provided that such other state or jurisdiction allows the issuance of real 40 estate licenses in substantially the same manner as set forth in this subsec- 41 tion. 42 54-2016. PRIMARY IDAHO LICENSES FOR LEGAL BUSINESS ENTITIES, SOLE 43 PROPRIETORSHIPS AND BRANCH OFFICES -- ADDITIONAL REQUIREMENTS. (1) Legal busi- 44 ness entities. Each legal business entity, as defined in section 54-2004, 45 Idaho Code, shall be licensed by the Idaho real estate commission to engage in 46 the real estate business in Idaho and shall make proper application, pay all 47 required fees, and meet all requirements listed below. 48 (a) Each legal business entity shall have a properly licensed individual 49 designated broker, who shall be held responsible for the activities of the 50 licensed entity. The individual designated broker shall also hold the fol- 51 lowing legal position within the licensed entity: 52 (i) Corporation -- an officer; 53 (ii) Partnership or limited partnership -- a general partner; 11 1 (iii) Limited liability company -- a member or manager. 2 It is the intent of the law that in these and in any other instance, the 3 individual designated broker for any business entity shall have full 4 authority to act on behalf of the licensed business entity, and shall sub- 5 mit sufficient and satisfactory proof thereof with the application for 6 license. All acts of that individual as designated broker shall be consid- 7 ered acts of the licensed business entity. Nothing in this section is 8 intended to create liability to a legal business entity for illegal or 9 fraudulent acts by the individual broker performed solely on his own 10 account. 11 (b) A license issued to a legal business entity, as defined in this chap- 12 ter, is effective only as long as the individual designated broker's 13 license is in active status and in effect. If the individual so designated 14 has a license refused, revoked, suspended or otherwise made inactive by 15 the commission, or if the individual designated broker voluntarily surren- 16 ders the individual license or ceases to be connected with the entity in 17 the manner required above, the business entity shall have ten (10) busi- 18 ness days in which to designate another qualified individual as designated 19 broker before the entity's license is terminated, and the licenses of all 20 associated licensees are made inactive. 21 (c) One (1) individual may act as designated broker for more than one (1) 22 licensed business entity, however, all entities shall have their main 23 offices in the same physical location. 24 (d) Satisfactory proof of mandatory errors and omissions insurance shall 25 be provided for both the individual designated broker and the licensed 26 business entity. 27 (e) A legal business entity doing business under an assumed name shall 28 provide satisfactory proof of having legally filed a certificate of 29 assumed name with the Idaho secretary of state. 30 (2) Sole proprietorships. An individual designated broker not licensed 31 with a legal business entity, as defined in section 54-2004(11), Idaho Code, 32 shall be licensed as a sole proprietor. Each sole proprietorship seeking a 33 real estate license shall meet all the following requirements: 34 (a) A licensed sole proprietor doing business under an assumed business 35 name shall provide satisfactory proof of having legally filed a certifi- 36 cate of assumed name with the Idaho secretary of state; 37 (b) Satisfactory proof of mandatory errors and omissions insurance shall 38 be provided for the licensed designated broker of a sole proprietorship. 39 (3) Multiple business names prohibited. A legal business entity or sole 40 proprietorship shall be licensed under only one (1) business name. 41 (4) Branch offices. Branch offices in which trust funds or original 42 transaction files are maintained shall be separately licensed by application 43 and payment of fifty dollars ($50.00) for the issuance and renewal of each 44 branch office license. Such branch office shall designate in the application 45 a branch manager, who shall be a salesperson with at least two (2) years expe- 46 rience or an associate broker, to be responsible for the supervision of the 47 branch office. No separate branch office license or manager is required for 48 business locations other than the main office unless trust funds or original 49 transaction records are kept at the branch. Each branch office or business 50 location, whether separately licensed or not, shall conduct business only in 51 the licensed name of the legal entity or sole proprietor. 52 54-2017. RECIPROCAL IDAHO LICENSES. The commission may issue a reciprocal 53 Idaho real estate license to a qualified person who holds an active primary 54 license in another state or jurisdiction if a written reciprocal licensing 12 1 agreement exists between Idaho and the other state or jurisdiction. Each 2 reciprocal license issued shall be limited to and governed by the terms of the 3 applicable written agreement between Idaho and the other jurisdiction. 4 (1) Any reciprocal licensing agreement with Idaho shall require that the 5 person seeking an Idaho reciprocal license make proper application, pay all 6 required fees, and: 7 (a) Be currently and actively licensed as a designated broker in the 8 applicant's primary state or jurisdiction, or be licensed under a desig- 9 nated broker who holds a current, active Idaho reciprocal license; 10 (b) Provide satisfactory proof of holding an active license, in good 11 standing, as defined in the agreement, at the time of application; 12 (c) File an irrevocable consent to service as described in section 13 54-2012(1)(i), Idaho Code, on the form approved and furnished by the Idaho 14 real estate commission; 15 (d) Provide satisfactory proof of errors and omissions insurance covering 16 the applicant's licensed activities in Idaho; and that 17 (2) Whenever a designated broker who holds a reciprocal Idaho license 18 ceases to hold a current active license in the primary licensing jurisdiction, 19 the Idaho reciprocal license of that broker, and the licenses of all persons 20 licensed under that broker, shall immediately be made inactive without further 21 process. If a salesperson who holds a reciprocal Idaho license ceases to hold 22 a current, active license in the primary licensing jurisdiction, that person's 23 Idaho reciprocal sales license shall immediately be made inactive without fur- 24 ther process. 25 54-2018. LICENSE RENEWALS -- INACTIVE LICENSES STATUS. (1) Each new or 26 reactivated license shall be for a period of one (1) year plus the months up 27 to and including the next birth date of the licensee, not to exceed a period 28 of two (2) years, and shall expire on a date to coincide with the last day of 29 the month of the birth date of the licensee. Corporations, partnerships, lim- 30 ited liability companies and other entities defined as "persons" in this chap- 31 ter shall have established as the equivalent of a birth date, the birth date 32 of its designated broker. Licensed branch offices shall have established as 33 the equivalent of a birth date, the birth date of the real estate broker 34 establishing the branch office. 35 (2) Each license shall be renewable for a period of two (2) years by sub- 36 mitting a properly completed application, including evidence of having met the 37 commission's continuing education requirements as set forth in section 38 54-2023, Idaho Code, and all renewal fees established by this chapter or by 39 the commission, on or before 5 p.m. of the last day of the birth month of the 40 licensee. If mailed, the application and fee shall be postmarked by that same 41 date and time. 42 (3) If the licensee fails to submit a proper application or pay the 43 renewal fee on or before the last day of the birth month of the licensee, the 44 commission may accept a later payment, subject to such conditions as the com- 45 mission may require including, but not limited to, the assessment of a late 46 fee; provided that between the last day of the month of the licensee's birth 47 date and the date of renewal of the license, the rights of the licensee under 48 such license shall be suspended, and during such period of suspension it shall 49 be unlawful for any licensee to do or attempt to offer to do any of the acts 50 of the kind and nature described in the definitions of real estate broker or 51 real estate salesperson in section 54-2004, Idaho Code, in consideration of 52 compensation of any kind or expectation thereof. 53 (4) A licensee may place his license on inactive status. The holder of 54 an inactive license shall not engage in the business or act in the capacity of 13 1 real estate broker, associate broker or salesperson. An inactive license may 2 be reactivated as provided in this chapter and the rules of the commission. 3 54-2019. DENIAL OF LICENSE APPLICATIONS. The commission may deny any 4 license application, including an application for license renewal, upon the 5 commission's determination of any of the following: 6 (1) The applicant does not possess all of the qualifications required for 7 the license sought; 8 (2) The applicant employed fraud, deception, misrepresentation, misstate- 9 ment or omission or any unlawful means in applying for a license or taking the 10 exam; 11 (3) Within the five-year period immediately preceding the application, 12 the applicant committed any act for which a real estate license in Idaho may 13 be revoked or suspended; or 14 (4) There exist any other specific facts about the applicant that cause 15 the commission to reasonably conclude that granting the applicant's request 16 for Idaho licensure is not in the best interests of the citizens of the state 17 of Idaho. 18 54-2020. FEES. The Idaho real estate commission shall establish fees 19 which, in its discretion, are sufficient, when added to the other fees autho- 20 rized by this chapter, or any other law or rule, to raise that revenue 21 required to administer the provisions of this chapter. 22 Each person seeking any type of Idaho real estate license shall pay the 23 following fees, in addition to any other fees established in this chapter or 24 by rule: 25 (1) For each year or portion thereof for which an active or inactive 26 license is issued or renewed, a license fee in an amount not to exceed one 27 hundred dollars ($100), the exact fee to be determined by administrative rule 28 of the commission. Fees so established shall remain effective from year to 29 year unless changed through the rules promulgation process prescribed in chap- 30 ter 52, title 67, Idaho Code; 31 (2) A tuition or registration fee for real estate education courses, 32 course materials and any course exam fee. These fees shall be established 33 based upon the total annual costs involved in the provision of all real estate 34 education courses, course materials and course exam fees; 35 (3) A fee in the amount of twenty-five dollars ($25.00) for late license 36 renewal; 37 (4) A fee in the amount of fifteen dollars ($15.00) for any license 38 change that necessitates the printing of a new license certificate; 39 (5) A fee in the amount allowed by law for insufficient funds checks or 40 other types of insufficient payment; 41 (6) A fee in the amount of ten dollars ($10.00) for each certified copy 42 of a licensee's education history or license history; 43 (7) A fee in the amount of fifty dollars ($50.00) for issuance or renewal 44 of a branch office license. 45 54-2021. DISPOSITION OF FUNDS. All fees collected by the commission under 46 the provisions of this chapter, except as designated in section 54-2070, Idaho 47 Code, shall be deposited at least monthly in the state treasury and all moneys 48 so deposited shall be deposited to the credit of the special real estate fund, 49 which fund is hereby created. All moneys so deposited in the special real 50 estate fund are hereby perpetually appropriated for the purpose of carrying 51 out the provisions of this chapter. All expenditures from the fund by the com- 52 mission under the provisions of this chapter shall be paid out on warrants 14 1 drawn by the state controller upon presentation of proper vouchers approved by 2 the commission. Such claims and supporting vouchers shall be examined by the 3 state board of examiners in the same manner as other claims against the state 4 of Idaho. For the purposes of carrying out the objectives of this chapter and 5 in the exercise of the powers herein granted, the commission shall have power 6 to make orders concerning the disbursement of the moneys in the special real 7 estate fund, including the payment of compensation and expenses of its mem- 8 bers, clerks and employees and for the payment of printing and for the train- 9 ing and education of all licensees under this chapter. Moneys in the fund may 10 be expended by the commission for the promotion and improvement of the real 11 estate profession, the advancement of education and research in the field of 12 real estate including, but not limited to, courses sponsored by the commission 13 or in conjunction with any university or college in the state and/or contract- 14 ing for a particular research project in the field of real estate, and the 15 promotion and advertising of the state of Idaho. 16 54-2022. REAL ESTATE EDUCATION -- PRELICENSE REQUIREMENTS. (1) Except as 17 provided in section 54-2015, Idaho Code, an applicant seeking a primary Idaho 18 license as a real estate salesperson, broker or associate broker shall furnish 19 satisfactory proof to the commission that the applicant has successfully com- 20 pleted current commission-approved and accredited courses of real estate study 21 as follows: 22 (a) Salesperson's license. For a salesperson's license, the applicant 23 shall complete a total of ninety (90) classroom hours, or the equivalent 24 in available correspondence hours; 25 (b) Broker's or associate broker's license. Applicants seeking a broker's 26 or associate broker's license shall, in addition to meeting the require- 27 ments for salesperson's license, successfully complete four (4) specified 28 courses in advanced real estate study, for a minimum of ninety (90) addi- 29 tional classroom hours, or the equivalent in available correspondence 30 hours. 31 (2) Each applicant shall successfully complete all prelicense real estate 32 courses within no more than five (5) years prior to the date of the license 33 application. However, upon written request for special consideration by the 34 license applicant, the commission may waive or modify the five-year require- 35 ment at its discretion, based on the applicant's experience or additional edu- 36 cation. Each waiver request shall be submitted with a current certified 37 license history from Idaho or the applicant's other licensing jurisdiction, 38 which history shall indicate all disciplinary actions taken against the 39 applicant's license and the status and standing of such license in such 40 licensing state or jurisdiction, along with sufficient proof of education com- 41 pletion. 42 (3) To receive credit for prelicense real estate courses, a student 43 must regularly attend and complete the course, and such course must meet all 44 requirements set forth in section 54-2036, Idaho Code. 45 (4) No credit will be given for courses taken for audit. 46 (5) Credit for completion of approved prelicense education course work 47 will not be granted when the content of a course repeats that for which credit 48 has been previously received. 49 54-2023. CONTINUING EDUCATION REQUIREMENTS. Each licensee seeking renewal 50 of an Idaho real estate license on active status, and each Idaho licensee 51 seeking to change from inactive to active license status, shall submit satis- 52 factory proof to the commission of having successfully completed at least 53 twelve (12) classroom hours of commission-approved and certified continuing 15 1 education course work. Failure to provide proof of meeting the continuing edu- 2 cation requirements as set forth in this chapter constitutes an incomplete 3 application for a renewal of an active license or for a change in license sta- 4 tus from inactive to active, and, as such, constitutes grounds for denial of 5 those applications. 6 (1) Renewing active license. Licensees renewing on active status must 7 successfully complete the continuing education requirement on or before the 8 license expiration date, in the manner stated in section 54-2018, Idaho Code. 9 (2) Change from inactive to active. Licensees changing from inactive to 10 active status must successfully complete one (1) continuing education require- 11 ment offered during their current inactive license period. 12 (3) No duplicate credit. Credit for completion of any approved continuing 13 education course will not be granted twice. 14 (4) Excess credits. The twelve (12) hours of course work shall apply to 15 the license period in which such course work is completed; hours completed in 16 excess of those required for the license period shall not accumulate or be 17 credited for the purposes of subsequent license renewal periods. 18 (5) Challenge exams. The commission may substitute all or a portion of 19 the course work required when a licensee shows evidence of passing an approved 20 challenge exam or of completing equivalent education determined by the commis- 21 sion to be in full compliance with such continuing education requirements. 22 (6) Provisional license -- Extension of time. A three-month extension of 23 time for completing the education requirements may be obtained by submitting 24 with the renewal application, or application to activate, satisfactory evi- 25 dence showing that the applicant was unable to comply with such education 26 requirements. Such evidence may be: 27 (a) Bona fide hardship preventing completion of the reinstatement 28 requirements of an inactive license; 29 (b) Health reasons preventing attendance or completion; 30 (c) Active duty in the military service with assignment to a permanent 31 duty station outside of the state during the last twelve (12) months of a 32 license period; or 33 (d) Other compelling cause beyond the control of the applicant while 34 engaged in the real estate business. 35 If such an extension is granted, the licensee shall receive a provisional 36 license for a period of time not to exceed three (3) months. 37 54-2024. PURPOSE OF CERTIFICATION. It is the intent of this chapter that 38 delivery of high quality real estate education to licensees and to those seek- 39 ing to become licensed in the state of Idaho is a necessary and reasonable way 40 to protect the citizens, businesses and public interests in Idaho. Therefore, 41 the commission shall create and maintain a certification program for real 42 estate education providers, instructors and course content. 43 54-2025. CERTIFICATION REQUIREMENTS. (1) Certification required. Certifi- 44 cation must be obtained by all course providers, course instructors and for 45 all course content in order for the course to be credited toward prelicense or 46 continuing education requirements in Idaho under this chapter. 47 (2) Courses, instructors and providers monitored. The commission or its 48 representative may monitor any course for the purpose of course, instructor or 49 provider certification. 50 54-2026. CERTIFICATION OF COURSE PROVIDERS. (1) Degree-granting institu- 51 tions. Degree-granting, accredited colleges and universities in any state or 52 jurisdiction shall be deemed to be approved course providers in Idaho. How- 16 1 ever, course content must still be approved for the real estate education 2 course to receive credit toward prelicense or continuing education licensing 3 requirements in Idaho. 4 (2) Other course providers. All other course providers desiring to offer 5 real estate courses for credit toward Idaho prelicense or continuing education 6 requirements must first meet the following qualifications and receive certifi- 7 cation. Each applicant seeking certification as a course provider shall comply 8 with the following: 9 (a) File an application for certification in the form and manner required 10 by the commission, along with proper fees, at least two (2) months prior 11 to contemplated date of opening or first accredited course offering; 12 (b) Designate a "director" or "individual in charge," who shall be 13 responsible for the course provider's operation and its real estate 14 courses, and with whom the commission may communicate. Unless this 15 requirement is waived upon special review of the commission in the manner 16 stated below, the individual in charge must not have had a real estate or 17 other professional or occupational license suspended or revoked for disci- 18 plinary reasons or have been refused a renewal of a license issued by the 19 state of Idaho or any other state or jurisdiction. The designated individ- 20 ual in charge must not have been convicted, issued any fine, placed on 21 probation, received a withheld judgment, or completed any sentence of con- 22 finement for or on account of any felony or a misdemeanor involving fraud, 23 misrepresentation, or dishonest or dishonorable dealing in a court of 24 proper jurisdiction. 25 (c) File a properly executed "irrevocable consent to service of process" 26 in the manner and form prescribed by the commission and in substantial 27 accordance with section 54-2012(1)(i), Idaho Code. The commission, in its 28 discretion, may make such additional investigation and inquiry relative to 29 the applicant for provider certification as it deems advisable and, if 30 good cause exists, may deny or accept the application for certification. 31 54-2027. DUTIES AND REQUIREMENTS OF ALL CERTIFIED COURSE PROVIDERS. Fail- 32 ure of a certified course provider to comply with the following duties and 33 requirements shall be grounds for the commission to withdraw or cancel the 34 provider's certification for cause. 35 (1) Discrimination prohibited. Each certified course provider shall at 36 all times be in compliance with state and federal laws, rules and regulations 37 regarding all aspects of equal opportunity and protection of civil rights. No 38 course provider shall engage in discriminatory practices, nor allow their 39 course instructor, or method of delivery to violate laws prohibiting discrimi- 40 nation. Each course provider will fully comply with any requirements of the 41 Americans with disabilities act regarding access to and delivery of its 42 courses, including the provision of accessible facilities and reasonable 43 accommodations for students. 44 (2) Open access to course offerings. Registration and attendance at all 45 certified courses offered for prelicense or continuing education credit shall 46 be open to all persons meeting normal course prerequisites. A certified course 47 provider located in or affiliated with a licensed real estate brokerage com- 48 pany may not refuse reasonable access to any licensee based on that licensee's 49 affiliation with another organization or brokerage company, or the licensee's 50 membership status in any professional organization. However, a course provider 51 is not prohibited from charging a separate and reasonable course fee to 52 nonaffiliated or nonmember licensees. 53 (3) Facilities and supportive personnel. The provider shall provide the 54 facilities and all supportive qualified personnel or approved proctors neces- 17 1 sary to adequately implement its real estate program. 2 (4) Student records and other requirements. Each Idaho certified course 3 provider shall comply with the following requirements: 4 (a) Records. Maintain for each individual student a complete, accurate 5 and detailed record which shall include the total number of hours of 6 instruction undertaken and satisfactorily or unsatisfactorily completed in 7 the area of study; 8 (b) Course completion lists. Within five (5) working days after conclu- 9 sion of each course of instruction, the provider shall submit to the coun- 10 cil or commission an alphabetical list which shall include the names, 11 addresses and social security numbers of the students completing the 12 course of instruction, the name of the course, the name of the instructor, 13 the number of hours included in the course, the date of the course and the 14 location. The list shall be certified by the instructor from whom the stu- 15 dents received instruction and an authorized representative of the pro- 16 vider; 17 (c) Grades. The provider will provide written notification to students 18 who successfully or unsuccessfully complete a course within thirty (30) 19 days of the course completion date; 20 (d) Evaluations. Each provider shall submit acceptable student evalua- 21 tions for each course and instructor, which must be on commission-approved 22 forms. The use of the commission evaluation form is recommended; 23 (e) Course schedules. Each provider shall submit schedules of courses and 24 instructors as requested by the commission and submit changes promptly as 25 they occur. 26 (5) Advertising restrictions: 27 (a) Providers may advertise that they are currently certified by the com- 28 mission, if current certification has been approved, but no such advertis- 29 ing may state or imply that the provider is an agency of the commission or 30 the council; 31 (b) No course provider shall provide any information to the public or to 32 prospective students which is misleading in nature. Information is mis- 33 leading when, taken as a whole, there is distinct probability that it will 34 deceive the persons whom it is intended to influence. 35 (6) Changes in certification. Certification shall be granted to the par- 36 ticular provider for the specific ownership, provider location, and named 37 individual in charge as designated in the application for certification. Any 38 changes in ownership, provider location, or provider name, or named individual 39 in charge must be submitted for approval to the commission, at least one (1) 40 month in advance of the effective date of the proposed changes. 41 54-2028. TERM OF PROVIDER CERTIFICATION AND RENEWAL. Each course 42 provider's certification issued by the commission shall be for a term of two 43 (2) years. The exact expiration date will be shown on the provider certifi- 44 cate. In order to maintain certification, each provider must return a properly 45 completed renewal application on a form provided by the commission, along with 46 all necessary attachments and renewal fees to the commission office prior to 47 the expiration date for commission approval. Recertification is not effective 48 until the commission has formally approved the application for renewal. Fail- 49 ure to obtain approved renewal of certification prior to its expiration date 50 will result in no credit being given for courses not yet successfully com- 51 pleted by the expiration date. 52 54-2029. NOTICE OF POTENTIAL EXPIRATION OF CERTIFICATION. Certified 53 providers who have not applied for renewal of certification or whose renewal 18 1 applications do not meet the qualifications for renewal of certification shall 2 be notified by the commission of potential termination at least fifteen (15) 3 days before termination occurs. 4 54-2030. EXPIRATION OR WITHDRAWAL OF PROVIDER CERTIFICATION -- NOTICE TO 5 STUDENTS. If a provider's certification expires, is terminated or withdrawn 6 for any reason, the provider will no longer be approved by the commission, and 7 no credit will be given to students for any courses starting after the expira- 8 tion date. A provider whose certification has expired, been terminated or 9 withdrawn for any reason, shall immediately notify every present or future 10 student in writing that it is not a certified provider of approved real estate 11 courses in Idaho, and that no credit for prelicense or continuing education 12 will be given for its courses. 13 54-2031. WITHDRAWAL OF IDAHO CERTIFICATION FOR CAUSE -- PROCESS. The com- 14 mission may withdraw a provider's certification at any time, for cause, 15 including the violation of any provision of this chapter by the provider or 16 those for whom the provider is responsible. Any withdrawal of certification 17 shall be governed by the Idaho administrative procedure act, chapter 52, title 18 67, Idaho Code, the rules of practice and procedure of the Idaho real estate 19 commission, this chapter and all laws of the state of Idaho. 20 54-2032. CERTIFICATION OF INSTRUCTORS. All individuals wishing to teach 21 real estate courses for credit toward prelicense or continuing education 22 requirements in Idaho must first be approved or certified by the commission 23 for each course the individual wishes to teach. 24 54-2033. INSTRUCTOR QUALIFICATIONS. (1) Qualified instructors at degree- 25 granting institutions. A qualified or full-time instructor or professor of an 26 accredited college or university in any state or jurisdiction and who teaches 27 real estate related courses is deemed to be an approved instructor of such 28 courses, in Idaho, for the purposes of this chapter. 29 (2) Other instructor applicants. All other individuals wishing to teach 30 real estate courses for credit toward Idaho prelicense or continuing education 31 requirements must first meet the following additional qualifications and 32 receive separate certification for each course to be taught: 33 (a) Unless this requirement is waived upon special review of the commis- 34 sion in the manner stated below, no individual instructor seeking certifi- 35 cation may have had a real estate or other professional or occupational 36 license suspended or revoked for disciplinary reasons or have been refused 37 a renewal of a license issued by the state of Idaho or any other state or 38 jurisdiction. Further, the individual may not have been convicted, issued 39 any fine, placed on probation, received a withheld judgment, or completed 40 any sentence of confinement for or on account of any felony, or any misde- 41 meanor involving fraud, misrepresentation, or dishonest or dishonorable 42 dealing, in a court of proper jurisdiction. 43 (b) Each applicant for certification shall also: 44 (i) Submit a properly completed application for instructor certifi- 45 cation in the form and manner required by the commission, with all 46 proper fees; 47 (ii) File a properly executed "irrevocable consent to service of 48 process" in the manner and form prescribed by the commission and 49 according to section 54-2012(1)(i), Idaho Code; 50 (iii) Qualify as at least one (1) of the following: 51 1. An attorney at law actively licensed in any state or juris- 19 1 diction with at least five (5) years of active practice in the 2 areas of study proposed to be taught, and who has also success- 3 fully completed a commission-approved instructor training course 4 or procedure, including a student teaching period; 5 2. An individual currently approved or certified and in good 6 standing as a real estate instructor for the same or similar 7 course material in any other state or jurisdiction; 8 3. An individual who is appointed to teach a nationally recog- 9 nized real estate course which is generally accepted in other 10 states or jurisdictions; or 11 4. An individual with at least five (5) years active real 12 estate-related experience who has also successfully completed a 13 commission-approved instructor training procedure, including a 14 student teaching period. 15 54-2034. SPECIAL CONSIDERATION -- DISCRETION OF THE COMMISSION. The com- 16 mission may, in its discretion, make such additional investigation and inquiry 17 relative to the applicant for instructor certification as it shall deem advis- 18 able, and if other good cause exists, may deny or accept the application for 19 certification. Based upon an applicant's educational background, experience 20 in related activities, or a review of the applicant's evaluations as a student 21 teacher, the commission may modify the requirements for instructor certifica- 22 tion; such modification may include reducing the requirements or assigning 23 additional requirements for certification. 24 54-2035. TERM OF INSTRUCTOR CERTIFICATION AND RENEWAL. (1) Certification. 25 Each instructor certification issued by the commission shall be for a term of 26 two (2) years. The exact expiration date will be shown on the instructor cer- 27 tificate. In order to maintain certification, each instructor shall: 28 (a) Return a properly completed renewal application on a form provided by 29 the commission, along with all necessary attachments and renewal fees to 30 the commission office prior to the expiration date, for commission 31 approval; 32 (b) Have taught, or assistant taught during the preceding two (2) years 33 at least twenty (20) hours of each council certified course for which the 34 instructor wishes to continue to be certified; and 35 (c) Have attended a commission-sponsored instructor development seminar 36 or received other acceptable training in methods of teaching adults during 37 the preceding two (2) years. 38 (2) Recertification. Recertification shall not be effective until the 39 commission formally approves the application for renewal. An instructor's 40 failure to obtain approved recertification prior to the expiration of the 41 certification will result in no credit being given for any course taught by 42 the instructor whose certification has expired prior to conclusion of the 43 course. 44 54-2036. CERTIFICATION OF COURSES AND COURSE CONTENT. Every real estate 45 course offered for prelicense or continuing education credit for an Idaho real 46 estate license shall first be certified and accredited by the Idaho real 47 estate commission. 48 (1) An application for course certification must be submitted in the form 49 and manner required by the commission, with proper fees, at least two (2) 50 months prior to contemplated date of the first course offering. 51 (2) Minimum requirements for course certification: 52 (a) Each course must be certified individually, offered only through a 20 1 provider certified or approved in Idaho, and taught by an instructor cer- 2 tified or approved in Idaho in accordance with this chapter. 3 (b) Each prelicense course must contain at least twenty (20) hours of 4 classroom instruction. 5 (c) Exam time shall not be included as approved classroom hours of 6 instruction. 7 (d) A course hour is defined as a period of at least fifty (50) minutes 8 of actual instruction. 9 (e) Distance learning and alternative course delivery. The length of a 10 certified distance learning or other alternative course shall be based 11 upon the same number of hours which would be awarded in an equivalent 12 classroom course, and must include a commission-approved, proctored final 13 exam. 14 (f) Each prelicense course must include a proctored, commission-approved 15 final exam requiring a minimum passing score of seventy percent (70%). 16 (i) Exam retake policy. Each certified course provider, may, at its 17 option, allow students who fail the initial course exam one (1) 18 opportunity to retake the approved course exam within the following 19 time periods: 20 1. Prelicense course exam retakes must occur within one (1) 21 month of the original course exam; 22 2. Continuing education course challenge exam retakes must 23 occur within that course's certification period; 24 (ii) If a student fails the retake exam for any prelicense or con- 25 tinuing education course, the student must repeat the entire course 26 and pass the final exam to receive credit. 27 (g) Challenge exams. A student shall not earn credit for any prelicense 28 course by challenging and passing the course exam without otherwise com- 29 pleting all course requirements. Credit for continuing education courses 30 may be earned by challenge exam only as allowed in section 54-2023(5), 31 Idaho Code. 32 (3) Approved topics. The commission shall establish specific, approved 33 topics for course content as it deems appropriate to current real estate prac- 34 tices and laws. 35 54-2037. TERM OF COURSE CERTIFICATION AND RENEWAL. Each course certifica- 36 tion issued by the commission shall be for a term of two (2) years. The exact 37 expiration date will be shown on the course certificate. In order to maintain 38 certification a course provider, for each course, must return a properly com- 39 pleted renewal application on a form provided by the commission, along with 40 all necessary attachments and renewal fees to the commission office prior to 41 the expiration date and within sufficient time for commission review and 42 approval. Recertification is not effective until the commission has formally 43 approved the application for renewal. Failure to obtain approved renewal of 44 certification prior to its expiration date will result in no credit being 45 given for a course if its certification has expired prior to conclusion of the 46 course. 47 54-2038. DESIGNATED BROKER -- GENERAL RESPONSIBILITIES. The requirement 48 that each brokerage company be maintained and conducted in compliance with the 49 Idaho real estate license law and the Idaho real estate brokerage representa- 50 tion act is the responsibility of its designated broker. The designated broker 51 is responsible for the actions of its licensees and associated unlicensed per- 52 sons performed within the course and scope of their employment or agency, 53 regardless of the location of the company's business or where representation 21 1 is conducted. 2 (1) A designated broker is required to: 3 (a) Supervise and control, in the manner required by law and rule, all 4 office locations, and the activities of all licensees and unlicensed per- 5 sons associated with that brokerage company or for whom that designated 6 broker is responsible; 7 (b) Review and approve all real estate agreements including, but not lim- 8 ited to, those related to listing, selling or purchasing property and bro- 9 kerage representation agreements; 10 (c) Be reasonably available to manage and supervise the brokerage company 11 during regular business hours. When a broker is a regular full-time 12 employee or is engaged in a full-time activity at a location other than 13 where the broker is licensed to do business, a presumption will be made 14 that the broker is unable to manage and supervise the brokerage company in 15 accordance with these requirements, and no sales associate shall be 16 licensed under the broker until such presumption is overcome by evidence 17 to the contrary, satisfactory to the commission. 18 (2) A broker who is otherwise qualified to do business in Idaho, but is 19 not able to manage and supervise according to this section, may be licensed as 20 a "limited broker" in Idaho and shall not have any sales associates licensed 21 under that broker. 22 (3) A designated broker shall not allow any person who is not properly 23 licensed to represent that broker as a sales associate or otherwise, in any 24 real estate business activities requiring a real estate license. "Properly 25 licensed" means a license or a change in license that has been made effective 26 by the commission. 27 54-2039. BROKER AND BRANCH OFFICE MANAGER ABSENCES AND CHANGES. Each real 28 estate brokerage company must have a legally qualified individual acting as 29 designated broker at all times. Each branch office licensed under section 30 54-2016(4), Idaho Code, shall have, at all times, a legally qualified individ- 31 ual acting as branch office manager. 32 (1) Broker or branch manager absent for more than twenty-one days. A des- 33 ignated broker who is absent from his main office for more than twenty-one 34 (21) calendar days shall appoint a qualified designated broker of another 35 office, or an associate broker who is licensed and associated with the absent 36 broker, to manage, supervise and oversee the regular office operations of the 37 company in his absence. A branch office manager who is absent for more than 38 twenty-one (21) days from a branch office in which trust funds and original 39 transaction files are maintained shall appoint a qualified individual to man- 40 age, supervise and oversee the regular office operations of the company in his 41 absence. The appointee shall conduct all supervisory activities normally 42 required of the designated broker or branch manager. Except in the event of an 43 emergency, the designated broker or branch manager shall notify the commission 44 in writing of the name of the appointee prior to the broker or manager leaving 45 the office for an extended period of more than twenty-one (21) days. 46 (2) Broker or branch manager absent for more than sixty days. A desig- 47 nated broker, or manager of a branch office in which trust funds and original 48 transaction files are maintained, shall not be absent from his main office for 49 a period longer than sixty (60) days. In the case of such extended absence, 50 another qualified individual shall be designated to act as broker or branch 51 office manager. If a designated broker is absent from his main office for a 52 period longer than sixty (60) days, and no new broker is designated to act as 53 broker for the brokerage company, the commission shall place on inactive sta- 54 tus the licenses of the absent broker and of all licensees associated with 22 1 him, and all brokerage listing agreements and all buyer brokerage agreements 2 shall be terminated. 3 (3) Change of broker in business entity. A license issued to a legal 4 business entity, as defined in this chapter, is effective only as long as the 5 individual designated broker's license is in active status and in effect. If 6 the individual so designated has a license refused, revoked, suspended or 7 otherwise made inactive by the commission, or if the individual designated 8 broker voluntarily surrenders the individual license or ceases to be connected 9 with the entity in the manner required in this chapter, the business entity 10 shall have ten (10) business days in which to designate another qualified 11 individual as designated broker before the entity's license is terminated, and 12 the licenses of all associated licensees are made inactive. 13 (4) Effective date of changes. No change in designated broker shall be 14 effective until written notice is received and approved by the commission, in 15 the form required. 16 (5) Failure to comply -- Original broker to remain responsible except in 17 the case of revocation. Where a licensed brokerage company fails to comply 18 with this section and its office is closed, or during any period where the 19 designated broker has left the brokerage company and no new broker has been 20 designated to act for the company, the original designated broker shall remain 21 responsible for trust account funds, pending transactions and records in the 22 manner described in sections 54-2041 through 54-2049, Idaho Code. However, if 23 the license of the original designated broker of the brokerage company is 24 revoked, the license of that brokerage company shall be made inactive and its 25 office closed until the company designates another qualified individual to act 26 as broker. 27 54-2040. MAIN OFFICE OR BUSINESS LOCATION. (1) Definite location 28 required. Each individual licensed as a designated real estate broker under 29 the provisions of this chapter shall be required to have and maintain a defi- 30 nite, physical place of business, which place shall serve as his main office 31 for the transaction of business and be regarded for the intent and purpose of 32 this chapter as his principal place of business. Notice in writing shall be 33 given to the commission of any change by the broker of the business name or 34 business location, whereupon a new license shall be issued reflecting the 35 changed business name or address. A change of business name or location with- 36 out notification to the commission and issuance of a new license shall auto- 37 matically cancel the license heretofore issued. The broker shall also notify 38 the commission in writing of any change in the business mailing address. 39 (2) Broker for more than one business. A qualified individual may be the 40 designated broker for more than one (1) licensed real estate business entity 41 only if all licensed businesses operate their main offices at the same physi- 42 cal location. 43 (3) Brokers sharing same business location. More than one (1) individu- 44 ally licensed broker may operate an office at the same address only if each 45 broker operates under a business name which clearly identifies the broker as 46 an individual within the group of brokers, and each broker shall maintain his 47 or her records and trust accounts separate from all other brokers. 48 (4) Business name and display of licenses. A broker shall not conduct 49 business under any name other than the one in which the license is issued. 50 Current licenses of the broker and all associates licensed with the broker 51 shall be prominently displayed or available for public inspection in the 52 office designated with the commission as the broker's main office location. No 53 other location may be used as a main office location until proper notice is 54 acknowledged by the commission. 23 1 (5) Lending license prohibited. A broker shall not lend or permit the use 2 of the broker's license, whether for compensation or not, to enable anyone 3 licensed or unlicensed to, in fact, establish or carry on a business for which 4 a real estate broker's license is required, wherein the broker does not activ- 5 ely manage and have full control. In like manner, a salesperson shall not use 6 another person's broker's license, whether for compensation or not, to estab- 7 lish or carry on a business for which a broker's license is required, nor to 8 manage and control the office, except as allowed by sections 54-2016(4), and 9 54-2039(1), Idaho Code. 10 54-2041. TRUST ACCOUNTS AND ENTRUSTED PROPERTY. A licensed Idaho real 11 estate broker shall be responsible for all moneys or property entrusted to 12 that broker or to any licensee representing the broker. Immediately upon 13 receipt, the broker shall place entrusted moneys in a neutral, qualified trust 14 fund account in Idaho, and shall properly care for any entrusted property. The 15 real estate broker shall remain fully responsible and accountable for all 16 entrusted funds until a full accounting has been given to the parties 17 involved. 18 54-2042. CREATION OF NONINTEREST-BEARING TRUST ACCOUNTS -- REQUIREMENTS. 19 A broker may establish one (1) or more real estate trust accounts but each 20 account must meet all requirements of this chapter, including the following: 21 (1) Each trust account must be established at an approved depository, 22 which must be located in the state of Idaho, and must be noninterest-bearing, 23 except as allowed in section 54-2043, Idaho Code, or as otherwise may be pro- 24 vided by law. Approved depositories are state or federally chartered banks 25 and trust companies, state or federally chartered savings and loan associa- 26 tions, properly licensed title insurance companies in Idaho, or an actively 27 licensed attorney at law in Idaho. 28 (2) Each account must be identified by the term "real estate trust 29 account," on checks, deposit slips, and with the depository. 30 (3) Each trust account must be established and maintained under the 31 licensed business name of the broker, and shall be under the full control of 32 the broker. 33 (4) Each broker trust account must have a separate and complete set of 34 records, which must consist of a monthly accounting, deposits, charges, and 35 withdrawals or checks, even if the moneys are on deposit with a title company, 36 attorney or other approved depository. The broker is responsible for ensuring 37 that these separate account records are provided by the depository. 38 (5) Funds deposited in a real estate trust account must be subject to 39 withdrawal on demand at the order or direction of the broker at all times, 40 even if deposited with a title company or other approved depository. 41 (6) A commission-approved form giving notice of opening a trust account 42 and giving authorization for the commission to inspect the account must be 43 completed for each trust account, signed by the broker and an officer of the 44 bank or depository and returned to the commission. 45 (7) No deposits to the trust account shall be made of funds that belong 46 to the broker or real estate firm, except that the broker may deposit broker 47 or firm funds for the purpose of opening and maintaining the account and for 48 the payment of anticipated bank service charges for the trust account. In no 49 event shall the balance of broker or firm funds in the account exceed three 50 hundred dollars ($300). Maintenance funds shall not be disbursed for any pur- 51 pose other than to cover bank charges charged directly to the trust account by 52 the bank. 24 1 54-2043. INTEREST-BEARING TRUST ACCOUNTS. The broker may deposit funds in 2 a separate, interest-bearing trust account for a single transaction if 3 directed in writing by both parties to the transaction, and only if the fol- 4 lowing additional requirements are met: 5 (1) The interest-bearing trust account must be established in accordance 6 with all requirements in section 54-2042, Idaho Code. However, the interest- 7 bearing trust account shall be created at an approved depository in Idaho. 8 (2) The deposit shall be made in the name of the broker, as described 9 above, and each such account shall contain only the funds relating to one (1) 10 transaction. 11 (3) The interest-bearing trust account, when created for this purpose, 12 must allow for withdrawal of the funds upon the broker's demand, unless all 13 parties direct the broker in writing to do otherwise. 14 (4) There must be a written agreement signed by both the buyer and the 15 seller stating who is to receive the interest accrued from the deposit. This 16 agreement is to be retained by the responsible broker in the transaction file 17 with a copy given to the buyer and the seller. 18 54-2044. TRUST ACCOUNT RECORDKEEPING -- FORMAT OF RECORDS REQUIRED. In 19 order that the financial interests of the consumers of Idaho be adequately 20 protected, each designated broker is required to create and maintain the fol- 21 lowing records regarding any real estate trust account, and is required to 22 reconcile and balance each trust account with all ledger records, the check 23 register and the bank statement at least once each month. Any electronic 24 recordkeeping system is required to have a generally accepted and adequate 25 backup system in use at all times. 26 (1) Maintenance ledger record. A separate ledger card or record, herein 27 called "ledgers," identified as "trust account maintenance fund" shall be ini- 28 tiated when the broker's or firm's funds are initially deposited into the 29 trust account. These ledgers shall be filed at all times with the broker's 30 current "open" ledgers of pending transactions. Additions or deductions to 31 trust account maintenance funds shall be posted to the ledger records as soon 32 as the broker is given notice of the deposit or deduction. The balance on this 33 maintenance fund ledger shall be kept current at all times. 34 (2) Individual trust ledger records. An individual trust ledger shall be 35 immediately created whenever a broker, or any licensed or unlicensed person 36 representing the broker, receives earnest money or other consideration, even 37 if the consideration will be deposited with, held by, paid directly to, trans- 38 ferred or delivered to a title company, other approved depository, or any 39 other person, as directed in writing, and signed by both parties to the trans- 40 action. Receipt of consideration, for purposes of this chapter, occurs when 41 the broker or any person representing the broker, takes physical possession of 42 the consideration or assumes the responsibility to deliver or deposit it. 43 (3) When a broker deposits funds with another broker, an approved deposi- 44 tory, or directly to the seller or any other person, as directed in writing by 45 both parties to the transaction, a ledger record must be created by the trans- 46 ferring broker, with a transaction number assigned. Upon transfer of funds or 47 consideration, a receipt for such deposit shall be obtained and retained in 48 the transaction files of the transferring broker. The receipt must show the 49 name of the payee and date of transfer. 50 (4) Additional requirements for creating an individual trust ledger 51 record are set forth in section 54-2045, Idaho Code. Individual trust ledger 52 records must each be assigned a transaction number. In addition, each individ- 53 ual trust account ledger record created must contain: 54 (a) The next chronological transaction number for each transaction; 25 1 (b) The names of both parties to the transaction; 2 (c) The location of the property; 3 (d) The date of each deposit and disbursement; 4 (e) The name of the payor or payee; 5 (f) The amount and check number of each disbursement; 6 (g) The amount and nature of the deposit; 7 (h) The current balance; and 8 (i) After the transaction is closed, each individual ledger record must 9 show the final disposition of the transaction and funds. 10 A broker's trust account ledger records must be maintained with one (1) file, 11 electronic or hard copy, for closed, terminated and rejected transactions, and 12 a separate file for transactions pending but not closed. Ledger records shall 13 be kept in order by transaction number. Ledger posting must be kept current at 14 all times. 15 (5) Trust account checks. The broker shall maintain consecutively num- 16 bered checks for each trust account, which checks must: 17 (a) Contain the broker's licensed business name and current business 18 address; and 19 (b) Be imprinted with the words "real estate trust account." 20 (6) Check register or journal. A check register or journal must be posted 21 properly, maintained and kept current by the broker at all times even if funds 22 are held at a title company or other approved depository. The register must 23 itemize deposits and disbursements in consecutive order, and must also clearly 24 show: 25 (a) The date of the deposit or disbursement; 26 (b) The payee or payor; 27 (c) The amount and purpose of any deposits or disbursements; 28 (d) The check number; 29 (e) The transaction number; and 30 (f) The current cash balance remaining in that trust account. 31 (7) Duplicate bank deposit record. For each trust account, the broker 32 shall maintain, in hard copy, a duplicate bank deposit record, which shall be 33 imprinted with the broker's business name and the words, "real estate trust 34 account." Each deposit record shall state: 35 (a) The name of the person or firm placing the money with the broker's 36 office; 37 (b) The date of the deposit; and 38 (c) The transaction number. The duplicate deposit record shall be 39 retained in the bank deposit records in proper chronological sequence and 40 shall be date stamped by the bank or the bank deposit receipt shall be 41 attached to the duplicate deposit record in the deposit records. 42 (8) Real estate trust account checks. For each trust account, the broker 43 shall maintain a set of consecutively numbered checks, which shall be 44 imprinted with the broker's business name and address and the words "real 45 estate trust account." Any check drawn on such a trust account shall be iden- 46 tified by a transaction number noted on the face of the check. Any voided 47 trust account check shall be marked "VOID" and retained in numerical sequence 48 with the other checks for the banking month. 49 54-2045. TRUST ACCOUNT DEPOSITS AND RECEIPT OF CONSIDERATION. Except as 50 otherwise provided in this section, all entrusted funds received by a broker 51 in connection with a regulated real estate transaction, including, but not 52 limited to, earnest money, shall be deposited into a real estate trust account 53 maintained by the broker at an approved depository located in the state of 54 Idaho. In addition, all earnest money, option money, promissory notes, tangi- 26 1 ble personal property and any other consideration received by a broker, 2 regardless of form, must be accounted for upon receipt and in the following 3 manner: 4 (1) Time of deposit. All moneys received by a broker for another in a 5 real estate transaction are to be deposited on or before the banking day imme- 6 diately following the receipt day of such funds, unless written instructions 7 signed by the party or parties having an interest in the funds direct the bro- 8 ker to do otherwise. 9 (2) Checks held in uncashed form. A ledger record must also be created 10 when the broker or associate receives a check to be held for later deposit. 11 However, such a check must be accompanied by written instructions in the pur- 12 chase and sale agreement or offer to withhold deposit until a time certain, 13 such as acceptance of the offer by the seller. 14 (3) Consideration returned before deposit. A ledger record must also be 15 created even if the consideration received by a broker or salesperson is to be 16 returned before it has been deposited or otherwise properly transferred. A 17 written and dated notation must be placed on both the purchase and sale agree- 18 ment, offer or other document dealing with the consideration, and on the led- 19 ger record. No consideration is to be returned without the knowledge and con- 20 sent of the broker. 21 (4) Consideration received by sales associate. All consideration, includ- 22 ing cash, checks held in uncashed form and promissory notes, received by a 23 sales associate in connection with a real estate transaction shall be immedi- 24 ately delivered to the broker or the broker's office. 25 54-2046. TRUST ACCOUNT DISBURSEMENTS. The broker who holds entrusted 26 funds or like payments in lieu of cash received in a regulated real estate 27 transaction is fully responsible for all such funds until a full accounting 28 has been made to the parties involved. All cash or like payments in lieu of 29 cash must be disbursed from the real estate trust account only in accordance 30 with this section. Failure to comply with this section is a violation of 31 license law and will subject the broker to discipline. 32 (1) Written authorization required. No disbursements shall be made with- 33 out a written, signed authorization by the parties to the transaction or an 34 order of the court. Written and signed instructions from parties to the trans- 35 action may be in the purchase and sale agreement or in a separate document. 36 (2) Disbursements in advance of closing. No disbursements shall be made 37 in advance of closing or before the happening of a condition set forth in the 38 purchase and sale agreement or other agreement in a regulated real estate 39 transaction to the seller, closing agent or any other person without the 40 required written and signed authorization. 41 (3) Withdrawal of broker's commission. No disbursement of any portion of 42 the broker's commission shall take place without prior written, signed autho- 43 rization from the buyer and seller or until copies of the closing statements, 44 signed by the buyer and seller, have been delivered to the broker and until 45 the buyer or seller has been paid the amount due as determined by the closing 46 statement. 47 (4) Provision for forfeited earnest money. The purchase and sale agree- 48 ment must include a provision for division of moneys taken as earnest money 49 when the transaction is not closed and such moneys are retained by any person 50 as forfeited payment. 51 54-2047. DISPUTED EARNEST MONEY. (1) Any time more than one (1) party to 52 a transaction makes demand on funds or other consideration for which the bro- 53 ker is responsible, such as, but not limited to, earnest money deposits, the 27 1 broker shall: 2 (a) Notify each party, in writing, of the demand of the other party; and 3 (b) Keep all parties to the transaction informed of any actions by the 4 broker regarding the disputed funds or other consideration, including 5 retention of the funds by the broker until the dispute is properly 6 resolved. 7 (2) The broker may reasonably rely on the terms of the purchase and sale 8 agreement or other written documents signed by both parties to determine how 9 to disburse the disputed money and may, at the broker's own discretion, make 10 such disbursement. Discretionary disbursement by the broker based on a reason- 11 able review of the known facts is not a violation of license law, but may sub- 12 ject the broker to civil liability. 13 (3) If the broker does not believe it is reasonably possible to disburse 14 the disputed funds, the broker may hold the funds until ordered by a court of 15 proper jurisdiction to make a disbursement. The broker shall give all parties 16 written notice of any decision to hold the funds pending a court order for 17 disbursement. 18 54-2048. RESPONSIBLE BROKER FOR THE TRANSACTION -- DUTIES AND RECORDKEEP- 19 ING. The "responsible broker," as referred to in this section, shall be 20 responsible to the commission for the transaction, transaction records, the 21 funds and closing in accordance with the requirements of this chapter. The 22 broker who lists and sells any real property shall be deemed the responsible 23 broker in the transaction. In the case of a cooperative sale, the broker who 24 holds entrusted funds in a real estate trust account while the transaction is 25 pending, or who delivers or transfers the funds to the closing agency or any 26 authorized party other than the cooperating broker in the transaction, shall 27 be deemed the broker responsible for the transaction. The responsible broker 28 shall: 29 (1) Ensure the correctness and delivery of detailed closing statements 30 which accurately reflect all receipts and disbursements for their respective 31 accounts to both the buyer and seller in a transaction, even if the closing is 32 completed by a real estate escrow closing agent, title company or other autho- 33 rized third party and regardless of the responsible broker's agent or nonagent 34 relationship to the buyer or seller. 35 (2) Show proof of delivery of the closing statement to the buyer and 36 seller by their signatures on copies of such closing statements which shall be 37 retained in the broker's transaction file. When signatures of the parties 38 cannot be obtained, a copy of the closing statement transmittal letter, sent 39 by certified mail, return receipt requested, or a written certification of 40 delivery signed by an officer of the escrow closing agency, shall be retained 41 in the broker's transaction files. 42 (3) Create and maintain, for the retention period required in section 43 54-2049, Idaho Code, a transaction file containing the following documents, as 44 applicable. For all pending, closed or fallen transactions, the original or a 45 true and correct copy of: 46 (a) Signed closing statements, if applicable; 47 (b) Written and signed brokerage representation agreements, if any. A 48 responsible broker who is representing both the seller and the buyer in a 49 transaction shall retain properly executed brokerage representation agree- 50 ments in the transaction file, and, if appropriate to the transaction, a 51 properly executed "consent to limited dual representation" statement. A 52 responsible broker who has a signed brokerage representation agreement 53 with only one (1) party to the transaction, either buyer or seller, must 54 only retain that one (1) agreement in the transaction file; 28 1 (c) All offers accepted, countered or rejected, which must each be 2 retained in the manner required in section 54-2049, Idaho Code; 3 (d) All offers presented to the seller and not accepted by that seller 4 shall be clearly marked and dated as rejected. The original or a true and 5 correct copy of all rejected offers must be retained in the files of the 6 selling broker for the statutory records retention period in section 7 54-2049, Idaho Code. 8 54-2049. RECORD RETENTION SCHEDULES. All records required in this chapter 9 to be kept and maintained by a real estate broker, including trust account and 10 financial records, transaction files and other records are to be kept in the 11 broker's files according to this section. The following records must be kept 12 by a broker for three (3) calendar years after the year in which the event 13 occurred, the transaction closed, all funds were disbursed, or the agreement 14 and any written extension expired: 15 (1) The original or true copy of all accepted, countered or rejected 16 offers; 17 (2) Listing or buyer brokerage representation agreements and "consent to 18 limited dual representation" forms; 19 (3) Transaction files and the contents required in section 54-2048(3), 20 Idaho Code; 21 (4) Trust account ledger records; and 22 (5) All trust account reconciliation records, as defined in this chapter. 23 54-2050. BROKERAGE REPRESENTATION AGREEMENTS -- REQUIRED ELEMENTS. All 24 real estate brokerage representation agreements, whether with a buyer or 25 seller, must be in writing in the manner required by section 54-2085, Idaho 26 Code, and must contain the following contract provisions: 27 (1) Seller representation agreements. Each seller representation agree- 28 ment, whether exclusive or nonexclusive, must contain the following provi- 29 sions: 30 (a) Conspicuous and definite beginning and expiration dates; 31 (b) A legally enforceable description of the property; 32 (c) Price and terms; 33 (d) All fees or commissions; and 34 (e) The signature of the owner of the real estate or the owner's legal, 35 appointed and duly qualified representative, and the date of such signa- 36 ture. 37 (2) Buyer representation agreements. Each buyer representation agreement, 38 whether exclusive or nonexclusive, must contain the following provisions: 39 (a) Conspicuous and definite beginning and expiration dates; 40 (b) All financial obligations of the buyer or prospective buyer, if any, 41 including, but not limited to, fees or commissions; 42 (c) The manner in which any fee or commission will be paid to the broker; 43 and 44 (d) Appropriate signatures and their dates. 45 (3) Prohibited provisions and exceptions -- Automatic renewal clauses. No 46 buyer or seller representation agreement shall contain a provision requiring 47 the party signing the agreement to notify the broker of the party's intention 48 to cancel the agreement after the definite expiration date, unless the repre- 49 sentation agreement states that it is completely nonexclusive and it contains 50 no financial obligation, fee or commission due from the party signing the 51 agreement. 52 (4) Copies required. A broker or salesperson who obtains a written bro- 53 kerage representation agreement of any kind shall, at the time of securing 29 1 such agreement, give the person or persons signing such agreement, a legible, 2 signed, true and correct copy thereof. Copies may be electronically generated 3 or transmitted, faxed or delivered in another method as long as the represen- 4 tation agreement specifically allows for such transmission and the parties to 5 the agreement agree in writing to accept such copies or documents as true and 6 correct. 7 (5) Electronically generated agreements. Brokerage representation agree- 8 ments with a buyer or seller may be electronically generated or transmitted, 9 faxed or delivered in another method as long as the representation agreement 10 specifically allows for such transmission and the parties to the representa- 11 tion agreement agree in writing to accept such copies or documents as true and 12 correct and enforceable as originals. 13 54-2051. OFFERS TO PURCHASE. (1) A broker or sales associate shall, as 14 promptly as practicable, tender to the seller every written offer to purchase 15 obtained on the real estate involved, up until time of closing, and shall 16 obtain the signature of the seller or seller's agent verifying time and date 17 such offer was received. A purchase and sale agreement signed by the prospec- 18 tive buyer shall be deemed in all respects an offer to purchase. 19 (2) Immediately upon receiving any offer to purchase signed and dated by 20 the buyer and any consideration, a broker or salesperson shall provide a copy 21 of the offer to purchase to the buyer as a receipt. 22 (3) Upon obtaining a properly signed and dated acceptance of an offer to 23 purchase, the broker or sales associate shall promptly deliver true and legi- 24 ble copies of such accepted offer to both the buyer and the seller. 25 (4) The broker or sales associate shall make certain that all offers to 26 purchase real property or any interest therein are in writing and contain all 27 of the following specific terms, provisions and statements: 28 (a) All terms and conditions of the real estate transaction as directed 29 by the buyer or seller; 30 (b) The actual form and amount of the consideration received as earnest 31 money; 32 (c) The name of the responsible broker in the transaction, as defined in 33 section 54-2048, Idaho Code; 34 (d) The "representation confirmation" statement required in section 35 54-2085(4), Idaho Code, and, only if applicable to the transaction, the 36 "consent to limited dual representation" as required in section 54-2088, 37 Idaho Code; 38 (e) A provision for division of earnest money retained by any person as 39 forfeited payment should the transaction not close; 40 (f) All appropriate signatures; and 41 (g) A legal description of the property. 42 (5) All changes made to any offer to purchase or other real estate pur- 43 chase agreement shall be initialed and dated by the parties to the transac- 44 tion. 45 54-2052. ELECTRONICALLY GENERATED AGREEMENTS. Offers to purchase, 46 counteroffers and acceptances may be electronically generated or transmitted, 47 faxed or delivered in another method only if the representation agreement spe- 48 cifically allows for such transmission and the parties to the representation 49 agreement agree in writing to accept such copies or documents as true and cor- 50 rect and enforceable as originals. 51 54-2053. ADVERTISING. (1) Only licensees who are actively licensed in 52 Idaho may be named by an Idaho broker in any type of advertising of Idaho real 30 1 property, may advertise Idaho property in Idaho or may have a sign placed on 2 Idaho property. 3 (2) All advertising of listed property shall contain the broker's 4 licensed business name. A new business name shall not be used or shown in 5 advertising unless and until a proper notice of change in the business name 6 has been approved by the commission. 7 (3) All advertising by licensed branch offices shall contain the broker's 8 licensed business name. 9 (4) No advertising shall provide any information to the public or to pro- 10 spective customers or clients which is misleading in nature. Information is 11 misleading if, when taken as a whole, there is a distinct probability that 12 such information will deceive the persons whom it is intended to influence. 13 54-2054. COMPENSATION, COMMISSIONS AND FEES -- PROHIBITED CONDUCT. (1) 14 Court action for fee collection. No person engaged in the business or acting 15 in the capacity of real estate broker or salesperson in Idaho shall bring or 16 maintain any action in the courts for the collection of a fee, commission or 17 other compensation for the performance of any acts requiring a real estate 18 license as provided in section 54-2002, Idaho Code, without alleging and prov- 19 ing that such person was an actively licensed broker or salesperson in Idaho 20 at the time the alleged cause of action arose. 21 (2) Fee-splitting with unlicensed persons prohibited. Unless otherwise 22 allowed by statute or rule, a real estate broker, associate broker or 23 salesperson licensed in the state of Idaho shall not pay any part or share of 24 a commission, fee or compensation received in the licensee's capacity as such 25 in a regulated real estate transaction to any person who is not actively 26 licensed as a real estate broker in Idaho or in another state or jurisdiction. 27 The Idaho broker making the payment to another licensed person is responsible 28 for verifying the active licensed status of the receiving broker. This section 29 shall not prohibit payment of a part or share of a commission, fee or compen- 30 sation by the broker to a corporation, all of whose shareholders and directors 31 are active real estate licensees. 32 (3) Finder's fees prohibited. Any offer of monetary value, by an Idaho 33 licensee, to any person who is not licensed in Idaho or any state or jurisdic- 34 tion, made for the purpose of inducing such unlicensed person to secure pros- 35 pects to buy, sell, option, or otherwise dispose of an interest in real prop- 36 erty shall be considered to be splitting fees with an unlicensed person, and 37 is prohibited. 38 (4) Interference with real estate brokerage agreement prohibited. It 39 shall be unlawful for any person, licensed or unlicensed, to interfere with 40 the contractual relationship between a broker and a client. Communicating a 41 company's relocation policy or benefits to a transferring employee or consumer 42 shall not be considered a violation of this subsection so long as the communi- 43 cation does not involve advice or encouragement on how to terminate or amend 44 an existing contractual relationship between a broker and client. 45 (5) Double contracts prohibited. No licensed broker or salesperson shall 46 use, propose the use of, agree to the use of, or knowingly permit the use of a 47 double contract, as defined in section 54-2004, Idaho Code, in connection 48 with any regulated real estate transaction. Such conduct by a licensee shall 49 be deemed flagrant misconduct and dishonorable and dishonest dealing and shall 50 subject the licensee to disciplinary action by the commission. 51 (6) Kickbacks and rebates prohibited. No licensed real estate broker or 52 salesperson shall receive a kickback or rebate for directing any transaction 53 to any individual for financing. A licensee shall not receive a kickback or 54 unearned fee for directing any transaction to any lending institution, escrow 31 1 or title company, as those practices are defined and prohibited by the real 2 estate settlement and procedures act of 1974, as amended, 12 U.S.C. section 3 2601 et seq. However, a licensee legally receiving any fee or rebate from any 4 person providing direct services to either the buyer or the seller in connec- 5 tion with a regulated real estate transaction is required to disclose the 6 licensee's intent to receive such fee, rebate or compensation in writing to 7 all parties to the transaction prior to closing. 8 (7) Compensation from more than one party. No licensed real estate broker 9 or salesperson shall charge or accept compensation from more than one (1) 10 party in any one (1) transaction, without first making full disclosure in 11 writing of the broker's intent to do so, to all parties involved in the trans- 12 action. 13 (8) After-the-fact referral fees prohibited. It shall be unlawful for any 14 person to solicit or request a referral fee or similar payment from a licensed 15 Idaho real estate broker or sales associate, for the referral of a buyer or 16 seller in connection with a regulated real estate transaction, unless the per- 17 son seeking the referral fee has reasonable cause. "Reasonable cause" shall 18 not exist unless: 19 (a) The person seeking the referral fee has a written contractual rela- 20 tionship with the Idaho real estate broker for a referral fee or similar 21 payment; and 22 (b) The contractual relationship providing for the referral fee exists at 23 the time the buyer or seller purportedly referred by such person signs a 24 written agreement with the Idaho broker for the listing of the real estate 25 or for representation by the broker, or the buyer signs an offer to pur- 26 chase the real estate involved in the transaction. It shall be unlawful 27 for any person including, but not limited to, a relocation company or com- 28 pany with a relocation policy or benefits, to directly or indirectly 29 threaten to or actually reduce or withhold promised or expected employee 30 or customer relocation benefits from a buyer or seller in a regulated real 31 estate transaction based upon a broker's participation in payment of a 32 referral fee or other fee. 33 (9) All fees must be paid through broker. No sales associate shall accept 34 any commission, compensation or fee for the performance of any acts requiring 35 a real estate license from any person except the real estate broker with whom 36 the sales associate is licensed. However, a broker may pay a former sales 37 associate for services performed while the sales associate was actively 38 licensed with that broker, regardless of the former sales associate's license 39 status at the time the commission or fee is actually paid. 40 54-2055. LICENSEES DEALING WITH THEIR OWN PROPERTY. (1) Any actively 41 licensed Idaho broker, sales associate, or legal business entity shall comply 42 with this entire chapter when that licensee is buying, selling or otherwise 43 acquiring or disposing of the licensee's own interest in real property in a 44 regulated real estate transaction. 45 (2) A licensee shall disclose in writing to any buyer or seller that the 46 licensee holds an active Idaho real estate license, if the licensee directly, 47 indirectly, or through a third party, sells or purchases an interest in real 48 property for personal use or any other purpose; or acquires or intends to 49 acquire any interest in real property or any option to purchase real property. 50 (3) Each actively licensed person buying or selling real property or any 51 interest therein, in a regulated real estate transaction, must conduct the 52 transaction through an actively licensed responsible broker, whether or not 53 the property is listed. 32 1 54-2056. TERMINATING LICENSE BUSINESS RELATIONSHIPS. (1) Sales associate 2 terminating license with broker. Any sales associate who terminates his asso- 3 ciation with a broker and licenses with another broker shall immediately 4 return his wall license to the commission, along with the completed forms and 5 fees necessary for relicensing. If the sales associate is unable to obtain his 6 wall license from the broker, the sales associate shall send written notice of 7 his termination, by certified mail, return receipt requested, to the broker, 8 and shall deliver a copy of such notice to the commission. Upon receipt of 9 such notice from the sales associate, the broker shall immediately return the 10 sales associate's wall license to the commission. 11 (2) Broker terminating sales associate. Any broker who terminates the 12 association of a sales associate shall return the sales associate's wall 13 license along with a completed termination form to the commission. 14 (3) Closing a branch office. A written notice shall be sent to the com- 15 mission office along with the branch office license and the wall licenses of 16 all licensees licensed in the branch office immediately upon closing the 17 branch office. 18 (4) Property of the broker. Upon termination of the business relationship 19 as a sales associate licensed under a broker, the sales associate shall imme- 20 diately turn over to the broker all listing information and listing contracts, 21 keys, purchase and sale agreements and similar contracts, buyer brokerage 22 information and contracts, and other property belonging to the broker. A sales 23 associate shall not engage in any practice or conduct, directly or indirectly, 24 which encourages, entices or induces clients of the broker to terminate any 25 legal business relationship with the broker unless he first obtains written 26 permission of the broker. 27 (5) Location of trust accounts and file records. When an actively 28 licensed broker changes to a license status other than that of a designated 29 broker, that individual must notify the commission in writing of the location 30 of all trust accounts and transaction file records which the broker was 31 responsible for during the term of licensure as a designated broker. These 32 records shall be available to the commission for three (3) years following the 33 year in which each transaction was closed. 34 (6) Terminating relationships between a broker and a sole proprietorship 35 owned by a person other than the broker. When a broker for a sole proprietor- 36 ship, owned by a person other than the broker, terminates an association with 37 the owner, all records and trust account funds shall become the property of, 38 and be maintained and disbursed by, the terminating broker in accordance with 39 this chapter and applicable rules promulgated thereunder. The terminating bro- 40 ker shall deliver, upon request made in writing by the clients and the new 41 broker of that sole proprietorship, such records and trust account funds per- 42 taining to that client, to the new broker who shall thereafter have the 43 responsibility for preservation and disbursement, in accordance with this 44 chapter and applicable rules promulgated thereunder. 45 54-2057. DEATH OR INCAPACITY OF A DESIGNATED BROKER. (1) Legal business 46 entities. Upon the death or incapacity of a designated broker for a legal 47 business entity licensed as a real estate brokerage company in Idaho, the 48 licensed entity shall appoint and designate a qualified individual as desig- 49 nated broker in the manner and within the time required in section 54-2039, 50 Idaho Code, or shall cease to be licensed. 51 (2) Sole proprietorships. Upon the death or incapacity of a sole propri- 52 etor broker, the commission may issue a limited authorization for an executor, 53 administrator, conservator, personal representative, court-appointed guardian, 54 or some other person or agency to close out the pending transactions on behalf 33 1 of the deceased or incapacitated broker, and only in accordance with the pro- 2 visions of this section. The person given temporary authority shall close out 3 the affairs of the deceased or incapacitated sole proprietor broker by taking 4 the following actions: 5 (a) Termination of listings and buyer brokerage agreements. Termination 6 of all listings and buyer brokerage agreements in which there are not out- 7 standing offers or earnest money receipts. 8 (b) Completion of negotiations. Completion of all negotiations between 9 buyers and sellers on transactions in which an offer to purchase has been 10 written or received. 11 (c) Accounting for moneys. Depositing and withdrawing moneys from the 12 real estate trust account in connection with completion of all transac- 13 tions still pending at the time of death of a sole proprietor broker. 14 (d) Commissions. Prompt payment of all real estate commissions owing 15 after closing of all transactions, both to the decedent broker's duly 16 appointed personal representative and to sales associates of the deceased 17 broker or participating brokers entitled to commissions resulting from the 18 transactions. 19 54-2058. AUTHORITY TO INVESTIGATE AND DISCIPLINE. (1) General authority 20 to investigate. The commission may investigate the action of any person 21 engaged in the business or acting in the capacity of real estate broker or 22 salesperson within the state of Idaho. The commission may initiate an investi- 23 gation at its own discretion or upon receipt of a written complaint from any- 24 one who claims to have been injured or defrauded as a result of such action. 25 A person is acting "within the state of Idaho" if that person is dealing 26 with any interest in real property or a business opportunity involving an 27 interest in real property, which is situated in this state, or is conducting 28 or attempting to conduct or solicit real estate business with residents of the 29 state of Idaho. 30 (2) Unlicensed persons. The commission also may investigate and file a 31 formal administrative complaint under this chapter against any person believed 32 to have acted as a real estate broker or salesperson without a license in 33 violation of section 54-2002, Idaho Code. 34 (3) Audits. The commission or its duly authorized representative is 35 vested with the authority to conduct periodic inspections, surveys and audits 36 of the transaction records and real estate trust accounts of all Idaho 37 licensed designated brokers. If the analysis of a broker's real estate trust 38 account indicates a deficiency or any irregularity which cannot be resolved 39 between the commission and the broker, the commission may order a complete 40 audit of the trust account by a certified public accountant at the broker's 41 expense. 42 (4) The commission or its staff also has the authority to investigate the 43 action of any Idaho licensee. The licensee or broker shall answer all reason- 44 able investigative questions of the commission or its staff, and must make 45 available, promptly upon request, any and all records to the commission at the 46 licensee's own cost and at the location or in the manner requested by the com- 47 mission. 48 54-2059. DISCIPLINARY POWERS -- REVOCATION, SUSPENSION OR OTHER DISCI- 49 PLINARY ACTION. (1) The commission may temporarily suspend or permanently 50 revoke licenses issued under the provisions of this chapter, issue a formal 51 reprimand and impose a civil penalty in an amount not to exceed five thousand 52 dollars ($5,000), and assess costs and attorney's fees for the cost of any 53 investigation and administrative or other proceedings against any licensee who 34 1 is found to have violated any section of the Idaho Code, the commission's 2 administrative rules or any order of the commission. The executive director 3 may issue informal letters of reprimand to licensees without civil penalty or 4 cost assessment. 5 The commission may impose a civil penalty in an amount not to exceed five 6 thousand dollars ($5,000) and assess costs and attorney's fees for the cost of 7 any investigation and administrative or other proceedings against any person 8 who is found, through a court or administrative proceeding, to have acted 9 without a license in violation of section 54-2002, Idaho Code. The civil pen- 10 alty provisions of this section are in addition to and not in lieu of any 11 other actions or criminal penalties for acting as a broker or salesperson 12 without a license which might be imposed by other sections of this chapter or 13 Idaho law. 14 The commission may also accept, on such conditions as it may prescribe, or 15 reject any offer to voluntarily terminate the license of a person whose activ- 16 ity is under investigation or against whom a formal complaint has been filed. 17 (2) If the commission suspends or revokes a license, or imposes a civil 18 penalty, or assesses costs and attorney's fees, the commission may withhold 19 execution of the suspension, revocation or civil penalty, or costs and 20 attorney's fees on such terms and for such time as it may prescribe. 21 (3) If any amounts assessed against a defendant by final order of the 22 commission become otherwise uncollectible or payment is in default, and only 23 if all the defendant's rights to appeal have passed, the commission may then 24 proceed to district court and seek to enforce collection through judgment and 25 execution. 26 (4) All civil penalties, costs, and attorney's fees collected by the com- 27 mission under this chapter shall be deposited in the state treasury to the 28 credit of the special real estate fund established by section 54-2021, Idaho 29 Code. 30 54-2060. GROUNDS FOR DISCIPLINARY ACTION. A person found guilty of mis- 31 conduct while performing or attempting to perform any act requiring an Idaho 32 real estate broker or salesperson's license, regardless of whether the act was 33 for the person's own account or in his capacity as broker or salesperson, 34 shall be subject to disciplinary action by the commission. The following acts 35 shall constitute misconduct within the meaning of this section: 36 (1) Making fraudulent misrepresentations; 37 (2) Engaging in a continued or flagrant course of misrepresentation or 38 making of false promises, whether done personally or through agents or 39 salespersons; 40 (3) Failure to account for or remit any property, real or personal, or 41 moneys coming into the person's possession which belong to another; 42 (4) Failure to keep adequate records of all property transactions in 43 which the person acts in the capacity of real estate broker or salesperson; 44 (5) Failure or refusal, upon lawful demand, to disclose any information 45 within the person's knowledge, or to produce any documents, books or records 46 in the person's possession for inspection by the commission or its authorized 47 representative; 48 (6) Acting as a real estate broker or salesperson under an assumed name; 49 (7) Employment of fraud, deception, misrepresentation, misstatement or 50 any unlawful means in applying for or securing a license to act as a real 51 estate broker or salesperson in the state of Idaho; 52 (8) Using, proposing to use, or agreeing to use a "double contract" as 53 prohibited in section 54-2054(5), Idaho Code; 54 (9) Seeking or receiving a "kickback" or rebate prohibited in section 35 1 54-2054(6), Idaho Code; 2 (10) Violation of any provision of sections 54-2001 through 54-2097, Idaho 3 Code, or any administrative rule made or promulgated by the commission or any 4 final order of the commission; 5 (11) Any other conduct whether of the same or a different character than 6 hereinabove specified which constitutes dishonest or dishonorable dealings; 7 (12) Gross negligence or reckless conduct in a regulated real estate 8 transaction. Conduct is grossly negligent or reckless if, when taken as a 9 whole, it is conduct which substantially fails to meet the generally accepted 10 standard of care in the practice of real estate in Idaho. 11 54-2061. ADDITIONAL GROUNDS FOR DISCIPLINARY ACTION -- COURT ACTIONS. (1) 12 The commission may also take disciplinary action against a licensee including, 13 but not limited to, suspension or revocation of a license, where, in a court 14 of competent jurisdiction, the licensee: 15 (a) Has been convicted of a felony, or has been convicted of a misde- 16 meanor involving fraud, misrepresentation, or dishonest or dishonorable 17 dealing or which otherwise demonstrates the licensee's lack of trustwor- 18 thiness to engage in the real estate business; 19 (b) Has been declared to lack capacity or to be incompetent or under an 20 infirmity, for the duration of such declaration only; 21 (c) Has a judgment entered against the licensee in a civil action upon 22 grounds of fraud, misrepresentation, deceit or gross negligence with ref- 23 erence to a real estate-related transaction. 24 (2) The court's record of conviction, order determining legal competency, 25 or the order entering judgment in a civil case, or certified copies thereof, 26 shall be prima facie evidence of a conviction, or the court's action. 27 54-2062. ADDITIONAL GROUNDS FOR DISCIPLINARY ACTION -- OTHER ADMINISTRA- 28 TIVE ACTIONS. The commission may also take any disciplinary action, including, 29 but not limited to, suspension or revocation of a license where the licensee: 30 (1) Has an order or determination of debarment, suspension, or any limi- 31 tation on participation in government loan programs issued against the licen- 32 see for misconduct; or 33 (2) Has a license, issued by another jurisdiction, suspended or revoked 34 for a disciplinary violation involving fraud, misrepresentation, or dishonest 35 or dishonorable dealings. A certified copy of the order of the administrative 36 agency in the other jurisdiction shall be prima facie evidence of the suspen- 37 sion or revocation. 38 54-2063. DISCIPLINARY PROCEDURE AND REVIEW OF AGENCY ACTION. All disci- 39 plinary actions under this chapter and all rights of review or appeal are gov- 40 erned by chapter 52, title 67, Idaho Code, and the rules of practice and pro- 41 cedure of the Idaho real estate commission. 42 54-2064. PROOF OF COMPLAINT -- PROSECUTION BY COUNTY PROSECUTING ATTOR- 43 NEY. The commission may prefer a complaint for violation of any section of 44 this chapter before any court of competent jurisdiction. It shall be the duty 45 of the prosecuting attorney of each county in the state to prosecute all 46 violations of the provisions of this chapter in their respective counties in 47 which the violations occur. 48 54-2065. PENALTY FOR ACTING AS A BROKER OR SALESPERSON WITHOUT LICENSE. 49 Any person acting as a real estate broker or real estate salesperson within 50 the meaning of this chapter without a license as herein provided shall be 36 1 guilty of a misdemeanor and, upon conviction thereof, if a natural person, be 2 punished by a fine of not to exceed five thousand dollars ($5,000), or by 3 imprisonment in the county jail for a term not to exceed one (1) year, or by 4 both such fine and imprisonment in the discretion of the court; or if a lim- 5 ited liability company or corporation, by a fine of not to exceed ten thousand 6 dollars ($10,000). Additionally, the court may assess a civil penalty against 7 a natural person in an amount not to exceed five thousand dollars ($5,000), 8 and against a limited liability company or corporation, in an amount not to 9 exceed ten thousand dollars ($10,000). All civil penalties shall be credited 10 to the special real estate fund. 11 54-2066. INJUNCTIVE RELIEF. The commission is hereby authorized to insti- 12 tute injunction proceedings in the district court of competent jurisdiction, 13 pursuant to the Idaho rules of civil procedure, for cause shown, to restrain 14 any person or persons from violating any provision of this chapter regardless 15 of whether or not there exists an adequate remedy at law. 16 54-2067. CEASE AND DESIST ORDERS. The commission is authorized to order 17 that any person violating any provision of this chapter cease and desist such 18 activity immediately. Violation of the cease and desist order shall be a 19 violation of this chapter and shall subject the person to any and all remedies 20 available to the commission in this or other chapters of the Idaho Code. 21 54-2068. WITNESSES -- DEPOSITIONS -- FEES -- SUBPOENAS. (1) The commis- 22 sion, or any member thereof, the executive director of the commission, or such 23 other person so designated by the commission by rule, shall have power to 24 administer oaths, certify to all official acts, issue subpoenas for attendance 25 of witnesses and the production of books and papers, take the testimony of any 26 person by deposition in the manner prescribed for in the rules of procedure of 27 the district court of this state, in civil cases, in any investigation or 28 hearing in any part of the state. 29 (2) Each witness who appears pursuant to a subpoena shall receive for his 30 attendance the fees and mileage allowed to a witness in civil cases in the 31 district court. Witness fees shall be paid by the party at whose request the 32 witness is subpoenaed. 33 (3) If a witness, who has not been required to attend at the request of 34 any party, is subpoenaed by the commission or executive director, his fees and 35 mileage shall be paid from funds appropriated for the use of the commission in 36 the same manner as other expenses of the commission are paid. 37 54-2069. REAL ESTATE RECOVERY FUND ESTABLISHED. There is hereby created 38 in the state treasury the real estate recovery fund. A balance of not more 39 than twenty thousand dollars ($20,000) shall be maintained in the fund, to be 40 used for satisfying claims against persons licensed under this chapter, as 41 provided in sections 54-2069 through 54-2078, Idaho Code. Any balance over 42 twenty thousand dollars ($20,000) shall be deposited in the special real 43 estate fund and be subject to appropriation by the legislature for the use of 44 the commission to carry out the provisions of this chapter. 45 54-2070. AUGMENTATION OF FUND. Upon the original application or renewal 46 of every real estate broker's, associate broker's and salesperson's license 47 for a two-year period, the licensee shall pay, in addition to the original or 48 renewal license fee, a fee of twenty dollars ($20.00). Such additional fees 49 and all education fees charged and collected for tuition or registration, 50 course materials and such other fees involved with the commission education 37 1 programs shall be paid into the state treasury and credited to the special 2 real estate fund as provided in section 54-2021, Idaho Code, except for such 3 funds as are required to maintain a balance of twenty thousand dollars 4 ($20,000) in the real estate recovery fund as provided for in section 5 54-2069, Idaho Code. 6 54-2071. RECOVERY FROM FUND -- PROCEDURE -- GROUNDS -- AMOUNT -- HEARING. 7 (1) When any person obtains a final judgment in any court of competent juris- 8 diction against any licensee under this chapter, upon grounds of fraud, mis- 9 representation or deceit with reference to any transaction for which a license 10 is required under this chapter, such person may, upon termination of all pro- 11 ceedings, including appeals in connection with any judgment, file a verified 12 petition in the court in which the judgment was entered for an order directing 13 payment out of the real estate recovery fund in the amount of actual damages 14 included in the judgment and unpaid, but not more than ten thousand dollars 15 ($10,000) per licensee per calendar year. The recovery fund's liability for 16 all claims arising from the acts or omissions of any one (1) licensee in any 17 calendar year shall be limited to a payment of not more than ten thousand dol- 18 lars ($10,000), regardless of the number of persons damaged by the acts or 19 omissions of a licensee, or the total amount of damage caused by such licen- 20 see, in any one (1) calendar year. If a claim is made against the fund and the 21 commission has actual knowledge of any other claims against the recovery fund 22 which have been filed or asserted against the same licensee and arise from 23 acts or omissions of the licensee in the same calendar year, then the commis- 24 sion shall file an interpleader action in accordance with the applicable stat- 25 utes and the Idaho rules of civil procedure against all known parties who may 26 claim a right to payment from the fund. Unless the commission has actual 27 knowledge of other potential claims, as stated above, and so files the inter- 28 pleader action, the first person who obtains a final judgment against a licen- 29 see shall be entitled to the payment of that amount equal to the lesser of the 30 judgment or ten thousand dollars ($10,000), providing the claimant meets the 31 other criteria set forth herein. 32 (2) A copy of the petition shall be served upon the commission and an 33 affidavit of such service shall be filed with the court. 34 (3) The court shall act upon such petition within thirty (30) days after 35 such service and, upon the hearing thereof, the petitioner shall be required 36 to show that: 37 (a) He is not the spouse of the debtor, or the personal representative of 38 such spouse; 39 (b) He has complied with all the requirements of sections 54-2069 through 40 54-2078, Idaho Code; 41 (c) He has obtained a judgment of the kind described in subsection (1) of 42 this section, stating the amount thereof and the amount owing thereon at 43 the date of the petition; 44 (d) He has caused to be issued a writ of execution upon the judgment and 45 the officer executing the same has made a return showing that no personal 46 or real property of the judgment debtor liable to be levied upon in satis- 47 faction of the judgment could be found, or that the amount realized on the 48 sale of them or of such of them as were found, under the execution, was 49 insufficient to satisfy the judgment, stating the amount so realized and 50 the balance remaining due on the judgment after application thereon of the 51 amount realized; 52 (e) He has made all reasonable searches and inquiries to ascertain 53 whether the judgment debtor is possessed of real or personal property or 54 other assets liable to be sold or applied in satisfaction of the judgment; 38 1 and 2 (f) That by such search he has discovered no personal or real property or 3 other assets liable to be sold or applied, or that he has discovered cer- 4 tain of them, describing them, owned by the judgment debtor and liable to 5 be so applied, and that he has taken all necessary action and proceedings 6 for the realization thereof, and that the amount thereby realized was 7 insufficient to satisfy the judgment, stating the amount so realized and 8 the balance remaining due on the judgment after application of the amount 9 realized. 10 (4) Whenever the aggrieved person satisfies the court that it is not 11 practicable to comply with one (1) or more of the requirements enumerated in 12 subsections (3)(d), (e) and (f) of this section, and that the aggrieved person 13 has taken all reasonable steps to collect that amount of the judgment or the 14 unsatisfied part thereof and has been unable to collect the same, the court 15 may in its discretion dispense with the necessity for complying with such 16 requirements. 17 54-2072. COMMISSION MAY ANSWER PETITION -- COMPROMISE OF CLAIMS. (1) 18 Whenever the court proceeds upon a petition as provided in section 54-2071, 19 Idaho Code, the commission may answer and defend any such action against the 20 recovery fund on behalf of the recovery fund and in the name of the defendant 21 and may use any appropriate method of review on behalf of the recovery 22 account. 23 (2) The judgment set forth in the petition shall be considered as prima 24 facie evidence only, and the findings of fact therein shall not be conclusive 25 for the purposes of sections 54-2069 through 54-2078, Idaho Code. 26 (3) The commission may, subject to court approval, compromise a claim 27 based upon the application of a petitioner. 28 54-2073. COURT ORDER REQUIRING PAYMENT FROM RECOVERY FUND. If the court 29 finds, after hearing that the claim should be levied against the portion of 30 the recovery fund allocated for the purpose of carrying out the provisions of 31 sections 54-2069 through 54-2078, Idaho Code, the court shall enter an order 32 directed to the commission requiring payment from the recovery fund of what- 33 ever sum it finds to be payable upon the claim pursuant to the provisions of 34 and in accordance with the limitations contained in section 54-2071, Idaho 35 Code. 36 54-2074. AUTOMATIC SUSPENSION OF BROKER'S, ASSOCIATE BROKER'S OR 37 SALESPERSON'S LICENSE ON PAYMENT BY COMMISSION -- CONDITION FOR LICENSE REIN- 38 STATEMENT. If, pursuant to court order, the commission pays from the recovery 39 fund any amount in settlement of a claim or towards satisfaction of a judgment 40 against a licensed broker, associate broker or salesperson, the license of 41 such broker, associate broker or salesperson shall be automatically suspended 42 without further order of the commission upon the effective date of any order 43 by the court as set forth herein authorizing payment from the recovery fund. 44 No such broker, associate broker or salesperson shall be granted reinstatement 45 until he has repaid in full, the amount so paid from the recovery fund plus 46 interest at the legal rate of interest allowable by law for judgments. 47 54-2075. ORDER OF PAYMENT OF CLAIMS IF RECOVERY FUND BALANCE INSUFFICIENT 48 -- INTEREST. If, at any time, the money deposited in the recovery fund and 49 allotted for satisfying claims against licensees is insufficient to satisfy 50 any authorized claim or portion thereof, the commission shall, when sufficient 51 money has been deposited in the recovery fund, satisfy such unpaid claims or 39 1 portions thereof, in the order that such claims or portions thereof were orig- 2 inally filed, plus accumulated interest at the rate of eleven percent (11%) 3 per annum. 4 54-2076. COMMISSION'S RIGHT TO SUBROGATION. When the commission has paid 5 from the recovery fund any sum to the judgment creditor, the commission has 6 subrogated all other rights of the judgment creditor and the judgment creditor 7 shall assign all his right, title and interest in the judgment to the commis- 8 sion and any amount and interest so recovered by the commission on the judg- 9 ment shall be deposited to the recovery fund. 10 54-2077. WAIVER OF RIGHTS. The failure of a person to comply with all of 11 the provisions of sections 54-2069 through 54-2071, Idaho Code, shall consti- 12 tute a waiver of any rights hereunder. 13 54-2078. DISCIPLINARY ACTION AGAINST LICENSEES NOT RESTRICTED FOR VIOLA- 14 TIONS OF LAW OR RULES. Nothing contained in sections 54-2069 through 54-2078, 15 Idaho Code, limits the authority of the commission to take disciplinary action 16 against a licensee for a violation of any of the provisions of the chapter, or 17 of the rules of the commission, nor shall the repayment in full of all obliga- 18 tions to the recovery fund by any licensee nullify or modify the effect of any 19 other disciplinary proceeding brought pursuant to the provisions of this chap- 20 ter or the rules promulgated thereunder. 21 54-2079. TERMINATION OF SALESPERSON FOR VIOLATION OF DISCIPLINARY PROVI- 22 SIONS -- STATEMENT TO BE FILED WITH COMMISSION. When any real estate 23 salesperson shall be terminated by his broker for a violation of any of the 24 provisions of sections 54-2060 through 54-2062, Idaho Code, a written state- 25 ment of the facts in reference thereto shall be filed forthwith with the com- 26 mission. 27 54-2080. RECORDS -- DISCLOSURE TO PUBLIC. Records kept in the office of 28 the commission under authority of this chapter and chapter 18, title 55, Idaho 29 Code, shall be open to public inspection as provided in chapter 3, title 9, 30 Idaho Code. 31 54-2081. [RESERVED.] 32 SECTION 4. That Section 54-2060, Idaho Code, be, and the same is hereby 33 amended to read as follows: 34 54-20 6082. SHORT TITLE. Sections 54-20 6082 through 54-20 7497, Idaho Code, 35 shall be known and may be cited as "The Idaho Real Estate Brokerage Represen- 36 tation Act." 37 SECTION 5. That Section 54-2061, Idaho Code, be, and the same is hereby 38 amended to read as follows: 39 54-20 6183. DEFINITIONS. As used in this actsections 54-2082 through 40 54-2097, Idaho Code: 41 (1) "Adverse material fact" means a fact that would significantly affect 42 the desirability or value of the property to a reasonable person or which 43 establishes a reasonable belief that a party to the transaction is not able to 44 or does not intend to complete that party's obligations under a real estate 45 contract. 40 1 (2) "Agency representation" or "representation" means the statutory 2 agency relationship between a client and a brokerage in a regulated real 3 estate transaction with respect to which the duties defined in section 4 54-20 6587, Idaho Code, are applicable. See also "representation." 5 (3) "Brokerage" means a licensed designated broker, the licensed real 6 estate business represented by that broker and its affiliated licensees. 7 (4) "Client" means a buyer or seller, or a prospective buyer or seller, 8 or both who have entered into an express written contract or agreement with a 9 brokerage for agency representation in a regulated real estate transaction. 10 (5) "Confidential client information" means information gained from or 11 about a client that: 12 (a) Is not a matter of public record; 13 (b) The client has not disclosed or authorized to be disclosed to third 14 parties; 15 (c) If disclosed, would be detrimental to the client; and 16 (d) The client would not be personally obligated to disclose to another 17 party to the transaction. Information which is required to be disclosed by 18 statute or rule or where the failure to disclose would constitute fraudu- 19 lent misrepresentation is not confidential client information within the 20 provisions of this act. Information generally disseminated in the 21 marketplace, including "sold" prices of property, is also not confidential 22 client information within the provisions of this act. 23 (6) "Customer" means a buyer or seller, or prospective buyer or seller, 24 who is not represented in an agency relationship in a regulated real estate 25 transaction. 26 (7) "Express agreement" or "express contract" means a written agreement 27 by the parties to undertake brokerage representation. An express agreement 28 under this statute can only be made in writing, and cannot be made orally or 29 by assumption or implication. 30 (8) "Idaho real estate license law and rules" means chapter 20, title 54, 31 Idaho Code, and all administrative rules promulgated thereunder. 32 (9) "Limited disclosed dual agent" means only that limited brokerage rep- 33 resentation in which both a buyer and a seller are clients for the purposes of 34 a regulated real estate transaction, and as specifically allowed in this act. 35 (10) "Ministerial acts" means reasonably necessary and customary acts typ- 36 ically performed by real estate licensees in assisting a transaction to its 37 closing or conclusion. 38 (11) "Nonagent" means a brokerage and its licensees working with or 39 assisting a buyer or seller as a customer to which the duties provided in sec- 40 tion 54-20 6486, Idaho Code, are applicable. 41 (12) "Regulated real estate transaction" means those real estate transac- 42 tions for which a real estate license is required under chapter 20, title 54, 43 Idaho Code. 44 (13) "Representation" or "brokerage representation" or "represented" means 45 the statutory agency relationship between a client and a brokerage in a regu- 46 lated real estate transaction with respect to which the duties provided in 47 section 54-20 6587, Idaho Code, are applicable. 48 SECTION 6. That Section 54-2062, Idaho Code, be, and the same is hereby 49 amended to read as follows: 50 54-20 6284. BROKERAGE AGENCY RELATIONSHIPS -- CREATION. For all regulated51 real estate transactions first executed on or after July 1, 1996, aA buyer or 52 seller is not represented by a brokerage in a regulated real estate transac- 53 tion unless the buyer or seller and the brokerage agree, in writinga separate 41 1 written document, to such representation. No type of agency representation 2 may be assumed by a brokerage, buyer or seller or created orally or by impli- 3 cation. 4 SECTION 7. That Section 54-2063, Idaho Code, be, and the same is hereby 5 amended to read as follows: 6 54-20 6385. DISCLOSURE AND WRITING REQUIREMENTS -- AGENCY DISCLOSURE BRO- 7 CHURE AND REPRESENTATION CONFIRMATION. (1) A licensee shall give to a prospec- 8 tive buyer or seller at the first substantial business contact the agency dis- 9 closure brochure established by the Idaho real estate commission. The commis- 10 sion by rule shall establish the form and contents of the brochure in accor- 11 dance with the provisions of this act. Each brokerage shall keep an initialed 12 and dated record of a buyer or seller's receipt of the agency disclosure bro- 13 chure. 14 (2) The agency disclosure brochure shall list the types of representation 15 available to a buyer or seller in a regulated real estate transaction, the 16 legal duties and obligations owed to the buyer or seller in each type of rep- 17 resentation and a conspicuous notice that no representation will exist absent 18 a written agreement between the buyer or seller and the brokerage. 19 (3) A brokerage's relationship with a buyer and seller as an agent, 20 nonagent, or limited dual agent must be determined and all necessary agree- 21 ments executed no later than the preparation of a purchase and sale agree- 22 ment. A brokerage must disclose its relationship to both buyer and seller in 23 any transaction no later than the preparation or presentation of a purchase 24 and sale agreement. 25 (4) In addition, a purchase and sale agreement or other document drafted 26 in connection with a real estate transaction shall contain the following con- 27 firmation of the relationship, whether it involved representation or not, 28 between the buyer, seller and licensees involved: 29 REPRESENTATION CONFIRMATION 30 In this transaction, the brokerage(s) involved had the following 31 relationship(s) with the BUYER ("agent" or "nonagent" or "limited 32 dual agent"): 33 Listing broker acted as a(n) ................ for the buyer. 34 Selling broker acted as a(n) ................ for the buyer. 35 In this transaction, the brokerage(s) involved had the following 36 relationship(s) with the SELLER ("agent" or "nonagent" or "limited 37 dual agent"): 38 Listing broker acted as a(n) ................ for the seller. 39 Selling broker acted as a(n) ................ for the seller. 40 Each party signing this document confirms that he or she has 41 received, read and understood the Agency Disclosure Brochure and has 42 elected the relationship confirmed above. In addition, each party 43 confirms that the broker's agency office policy was made available 44 for inspection and review. EACH PARTY UNDERSTANDS THAT HE OR SHE IS A 45 "CUSTOMER" AND IS NOT REPRESENTED BY A BROKER UNLESS THERE IS A 46 SIGNED WRITTEN AGREEMENT FOR AGENCY REPRESENTATION. 47 (5) The failure of a licensee to timely give a buyer or seller the agency 48 disclosure brochure or the failure of a licensee to properly and timely obtain 49 any written agreement or confirmation required by this act shall be a viola- 50 tion of the Idaho real estate license law and may subject the licensee to dis- 51 ciplinary action according to the provisions of sections 54-20 4058 through 52 54-2078, Idaho Code. 53 (6) Neither the commission brochure nor the representation confirmation 42 1 shall create a brokerage relationship. A separate, signed, written agreement 2 is required for that purpose. 3 SECTION 8. That Section 54-2064, Idaho Code, be, and the same is hereby 4 amended to read as follows: 5 54-20 6486. DUTIES TO A CUSTOMER. (1) If a buyer, prospective buyer, or 6 seller is not represented by a brokerage in a regulated real estate transac- 7 tion, that buyer or seller remains a customer, to whomand as such, the bro- 8 kerage and its licensees are nonagents and owe onlythe following legal duties 9 and obligations: 10 (a) To perform ministerial acts to assist the buyer or seller in the sale 11 or purchase of real estate; 12 (b) To perform these acts with honesty, good faith, reasonable skill and 13 care; 14 (c) To properly account for moneys or property placed in the care and 15 responsibility of the brokerage; 16 (d) To disclose to the buyer/customer all adverse material facts actually 17 known or which reasonably should have been known by the licensee; 18 (e) To disclose to the seller/customer all adverse material facts actu- 19 ally known or which reasonably should have been known by the licensee; 20 (2) A nonagent brokerage and its licensees owe no duty to a 21 buyer/customer to conduct an independent inspection of the property for the 22 benefit of that buyer/customer and owe no duty to independently verify the 23 accuracy or completeness of any statement or representation made by the seller 24 or any source reasonably believed by the licensee to be reliable. 25 (3) A nonagent brokerage and its licensees owe no duty to a 26 seller/customer to conduct an independent investigation of the buyer's finan- 27 cial condition for the benefit of that seller/customer and owe no duty to 28 independently verify the accuracy or completeness of statements made by the 29 buyer or any source reasonably believed by the licensee to be reliable. 30 SECTION 9. That Section 54-2065, Idaho Code, be, and the same is hereby 31 amended to read as follows: 32 54-20 6587. DUTIES TO A CLIENT. If a buyer or seller enters into a written 33 contract for representation in a regulated real estate transaction, that buyer 34 or seller becomes a client to whom the brokerage and its licensees owe the 35 following agency duties and obligations: 36 (1) To perform the terms of the written agreement with the client; 37 (2) To exercise reasonable skill and care; 38 (3) To promote the best interests of the client in good faith, honesty 39 and fair dealing including, but not limited to: 40 (a) Disclosing to the client all adverse material facts actually known or 41 which reasonably should have been known by the licensee; 42 (b) Seeking a buyer to purchase the seller's property at a price, and 43 under terms and conditions acceptable to the seller and assisting in the 44 negotiation therefor; or 45 (c) Seeking a property for purchase at a price and under terms and condi- 46 tions acceptable to the buyer and assisting in the negotiation therefor; 47 (d) For the benefit of a client/buyer: conducting a reasonable investiga- 48 tion of the property and material representations about the property made 49 by the seller or seller's agent, or when appropriate, advising the client 50 to obtain professional inspections of the property or to seek appropriate 51 tax, legal and other professional advice or counsel; 43 1 (e) For the benefit of a client/seller: requesting reasonable proof of a 2 prospective buyer's financial ability to purchase the real property which 3 is the subject matter of the transaction. This duty may be satisfied by 4 any appropriate method suitable to the transaction or, when deemed neces- 5 sary by the real estate licensee, by advising the client to consult with 6 an accountant, lawyer, or other professional as dictated by the transac- 7 tion. 8 (4) To maintain the confidentiality of specific client information as 9 defined by and to the extent required in this act. 10 (5) To properly account for moneys or property placed in the care and 11 responsibility of the brokerage. 12 SECTION 10. That Section 54-2066, Idaho Code, be, and the same is hereby 13 amended to read as follows: 14 54-20 6688. LIMITED DISCLOSED DUAL AGENCY PERMITTED. (1) A brokerage may 15 act as a limited disclosed dual agent only with the express written consent of 16 all parties to the transaction. Such consent shall contain separate signatures 17 of all parties to the transaction and shall contain the following language: 18 CONSENT TO LIMITED DUAL REPRESENTATION 19 The undersigned have received, read and understand the Agency 20 Disclosure Brochure. The undersigned understand that the brokerage 21 involved in this transaction will be or may be providing agency rep- 22 resentation to both the buyer(s) and the seller(s). The undersigned 23 each understand that as agents for both buyer and seller, the 24 brokerage(s) will be limited dual agents and cannot legally disclose 25 to either party certain confidential information concerning price 26 negotiations, terms or factors motivating the buyer to buy or the 27 seller to sell without specific written permission of the disclosing 28 party. The specific duties, obligations and limitations of a limited 29 dual agent are contained in the Agency Disclosure Brochure as 30 required by Section 54-20 6385, Idaho Code. The undersigned each 31 understand that a limited dual agent does not have a duty of undi- 32 vided loyalty to either client. 33 (2) All duties and obligations owed to a buyer or a seller client under 34 section 54-20 6587, Idaho Code, apply to limited disclosed dual agency rela- 35 tionships to the extent they do not unreasonably conflict with duties and 36 obligations owed to the other client, except that: 37 (a) A limited disclosed dual agent shall not disclose any of the follow- 38 ing without express written consent of the client to whom the information 39 pertains: 40 (i) That a buyer is willing to pay more than the listing price of 41 the property; 42 (ii) That a seller is willing to accept less than the listing price 43 for the property; 44 (iii) The factors motivating the buyer to buy or the seller to sell; 45 (iv) That a buyer or seller will agree to a price or financing terms 46 other than those offered. 47 (b) A limited disclosed dual agent does not have a duty of undivided loy- 48 alty to either buyer/client or seller/client, and by consenting to limited 49 dual agency, the buyer and seller agree to those limitations. 50 (3) No cause of action for any buyer or seller shall arise against a lim- 51 ited disclosed dual agent for making any required or permitted disclosure 52 under this act, nor does making such disclosure terminate the limited dis- 53 closed dual agency. 44 1 (4) Receipt of the agency disclosure brochure required by section 2 54-20 6385, Idaho Code, and the signed consent to dual representation by buyer 3 and seller agreeing to limited disclosed dual agency representation shall be 4 sufficient informed legal consent to dual representation under this act. A 5 consent by the buyer and seller to possible dual representation in the future, 6 such as may be contained in a written marketing or representation agreement 7 between a brokerage and client, shall also be considered effective and 8 informed legal consent to dual representation. 9 SECTION 11. That Section 54-2067, Idaho Code, be, and the same is hereby 10 amended to read as follows: 11 54-20 6789. BROKER COMPENSATION. Payment of compensation or a written 12 agreement only for payment of compensation to a brokerage shall not constitute 13 an express agreement creating an agency relationship. 14 SECTION 12. that Section 54-2068, Idaho Code, be, and the same is hereby 15 amended to read as follows: 16 54-20 6890. WRITTEN OFFICE POLICY REQUIRED. Each designated broker shall 17 be responsible to adopt and maintain in each office, including branch offices, 18 a written policy which identifies and describes the types of representation in 19 which that brokerage and its affiliated licensees may engage with any buyer or 20 seller, or both, as a part of that office's real estate brokerage services. 21 SECTION 13. That Section 54-2069, Idaho Code, be, and the same is hereby 22 amended to read as follows: 23 54-20 6991. DURATION OF EXPRESS REPRESENTATION. (1) A brokerage represen- 24 tation under this act shall commence on the date indicated on the written 25 agreement between the brokerage and a buyer/client or seller/client and shall 26 end at the earliest of: 27 (a) Performance or completion of the representation; 28 (b) Agreement by the parties; 29 (c) Expiration of the agency relationship agreement. 30 (2) Nothing in this act shall prohibit the brokerage and the buyer or 31 seller from changing the legal nature of their relationship or representation 32 in accordance with this act during the course of the real estate transaction. 33 However, the brokerage is not relieved thereby from meeting the disclosure 34 requirements and obtaining the written agreements, consents or confirmations 35 required by this act. 36 SECTION 14. That Section 54-2070, Idaho Code, be, and the same is hereby 37 amended to read as follows: 38 54-20 7092. DUTIES AND OBLIGATIONS OWED AFTER TERMINATION OF REPRESENTA- 39 TION. Except as otherwise agreed in writing, a brokerage owes no further duty 40 or obligation to a client after termination of the agreed representation 41 except: 42 (1) Accounting for all moneys and property received by the brokerage dur- 43 ing the representation; and 44 (2) Maintaining the confidentiality of all information defined as confi- 45 dential client information by this act. 46 SECTION 15. That Section 54-2071, Idaho Code, be, and the same is hereby 45 1 amended to read as follows: 2 54-20 7193. VICARIOUS LIABILITY ABOLISHED. (1) A client, as defined in 3 this act, whether buyer or seller, shall not be liable for a wrongful act, 4 error, omission or misrepresentation of his broker/representative or subagent 5 unless the client had actual knowledge of or reasonably should have known of 6 the wrongful act, error, omission or misrepresentation. 7 (2) A licensee or brokerage engaged in representation of a client shall 8 not be liable for a wrongful act, error, omission or misrepresentation of the 9 client or of any subagent unless the licensee or brokerage had actual knowl- 10 edge or reasonably should have known of the wrongful act, error, omission or 11 misrepresentation. 12 (3) Nothing in this section shall be construed to diminish or limit any 13 of the broker's or licensee's responsibilities under chapter 20, title 54, 14 Idaho Code, or the rules promulgated thereunder. 15 SECTION 16. That Section 54-2072, Idaho Code, be, and the same is hereby 16 amended to read as follows: 17 54-20 7294. REPRESENTATION NOT FIDUCIARY IN NATURE. While this act is 18 intended to abrogate the common law of agency as it applies to regulated real 19 estate transactions, nothing in this act shall prohibit a brokerage from 20 entering into a written agreement with a buyer or seller which creates an 21 agency relationship in which the duties and obligations are greater than those 22 provided in this act. However, unless greater duties are specifically agreed 23 to in writing between the brokerage and a represented client, the duties and 24 obligations owed to a represented client in a regulated real estate transac- 25 tion are not fiduciary in nature and are not subject to equitable remedies for 26 breach of fiduciary duty. 27 SECTION 17. That Section 54-2073, Idaho Code, be, and the same is hereby 28 amended to read as follows: 29 54-20 7395. CONFLICTS WITH OTHER LAW. If the provisions of this act are 30 found to be in conflict with any other provision of Idaho law, the provisions 31 of this act shall control. 32 SECTION 18. That Chapter 20, Title 54, Idaho Code, be, and the same is 33 hereby amended by the addition thereto of a NEW SECTION, to be known and des- 34 ignated as Section 54-2096, Idaho Code, and to read as follows: 35 54-2096. SEVERABILITY. The provisions of this chapter are severable and 36 if any provision of this chapter or the application of such provision to any 37 person or circumstance is declared invalid for any reason, such declaration 38 shall not affect the validity of the remaining portions of this chapter. 39 SECTION 19. That Section 54-2074, Idaho Code, be, and the same is hereby 40 amended to read as follows: 41 54-20 7497. RULEMAKING AUTHORITY OF THE COMMISSION. The Idaho real estate 42 commission shall have authority to promulgate rules in accordance with the 43 provisions of chapter 52, title 67, Idaho Code, to implement the provisions of 44 this actchapter. 45 SECTION 20. That Section 33-2101A, Idaho Code, be, and the same is hereby 46 1 amended to read as follows: 2 33-2101A. JUNIOR COLLEGE SHALL MEAN COMMUNITY COLLEGE. Notwithstanding 3 any other provision of law, in sections 21-805, 21-806, 21-809, 23-404, 4 31-808, 33-101, 33-107, 33-107B, 33-601, 33-1252, 33-2101, 33-2102, 33-2103, 5 33-2104, 33-2105, 33-2106, 33-2107, 33-2107A, 33-2107B, 33-2107C, 33-2108, 6 33-2109A, 33-2110, 33-2110A, 33-2110B, 33-2111, 33-2112, 33-2113, 33-2114, 7 33-2115, 33-2116, 33-2117, 33-2118, 33-2119, 33-2121, 33-2122, 33-2123, 8 33-2124, 33-2125, 33-2126, 33-2130, 33-2135, 33-2137, 33-2138, 33-2139, 9 33-2141, 33-2142, 33-2143, 33-2144, 33-2211, 33-3716, 33-3717, 33-4001, 10 33-4003, 33-4004, 33-4006, 33-4201, 33-4306, 33-4315, 46-314, 50-1405, 11 50-1721, 54-2029,57-1105A, 59-1324, 59-1371, 59-1374, 67-2320, 67-2322, 12 67-5309C and 67-5332, Idaho Code, the term "junior college" shall mean and 13 shall be denoted as "community college." 14 SECTION 21. This act shall be in full force and effect on and after July 15 1, 2000.
STATEMENT OF PURPOSE RS09402CI This is a comprehensive re-codification of Idaho Real Estate License law, Chapter 20, Title 54. No significant substantive changes are included. Rather, this legislation responds to chronic and widespread complaint that the existing statute is difficult to use or understand and that its requirements are unclear. The present license law was drafted in 1947 and has been amended some twenty times. This proposal will make the chapter more readable and "user-friendly" by reorganization, by adding badly needed definitions, and by re-working existing sections to clarify the statute's requirements. Also, the proposed legislation will move many of the Commission's rules into law, making the statute the primary source to which the public may turn to discover the governing law. FISCAL IMPACT None to the General Fund or to any political subdivision. Miscellaneous fee changes will increase revenue to the Idaho Real Estate Commission's special real estate account by an estimated $5,000 per year. CONTACT Name: Donna M. Jones Agency: Idaho Real Estate Commission Phone: 334-3285 ext. 232 Statement of Purpose/Fiscal Impact S1312