Full Text of SB1440 99th General Assembly
SB1440eng 99TH GENERAL ASSEMBLY |
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| 1 | | AN ACT concerning regulation.
| 2 | | Be it enacted by the People of the State of Illinois,
| 3 | | represented in the General Assembly:
| 4 | | Section 5. The Real Estate License Act of 2000 is amended | 5 | | by changing Sections 1-10 and 5-32 as follows:
| 6 | | (225 ILCS 454/1-10)
| 7 | | (Section scheduled to be repealed on January 1, 2020)
| 8 | | Sec. 1-10. Definitions. In this Act, unless the context | 9 | | otherwise requires:
| 10 | | "Act" means the Real Estate License Act of 2000.
| 11 | | "Address of Record" means the designated address recorded | 12 | | by the Department in the applicant's or licensee's application | 13 | | file or license file as maintained by the Department's | 14 | | licensure maintenance unit. It is the duty of the applicant or | 15 | | licensee to inform the Department of any change of address, and | 16 | | those changes must be made either through the Department's | 17 | | website or by contacting the Department. | 18 | | "Advisory Council" means the Real Estate Education | 19 | | Advisory Council created
under Section 30-10 of this Act.
| 20 | | "Agency" means a relationship in which a real estate broker | 21 | | or licensee,
whether directly or through an affiliated | 22 | | licensee, represents a consumer by
the consumer's consent, | 23 | | whether express or implied, in a real property
transaction.
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| 1 | | "Applicant" means any person, as defined in this Section, | 2 | | who applies to
the Department for a valid license as a real | 3 | | estate broker, real estate salesperson, or
leasing agent.
| 4 | | "Blind advertisement" means any real estate advertisement | 5 | | that does not
include the sponsoring broker's business name and | 6 | | that is used by any licensee
regarding the sale or lease of | 7 | | real estate, including his or her own, licensed
activities, or | 8 | | the hiring of any licensee under this Act. The broker's
| 9 | | business name in the case of a franchise shall include the | 10 | | franchise
affiliation as well as the name of the individual | 11 | | firm.
| 12 | | "Board" means the Real Estate Administration and | 13 | | Disciplinary Board of the Department as created by Section | 14 | | 25-10 of this Act.
| 15 | | "Branch office" means a sponsoring broker's office other | 16 | | than the sponsoring
broker's principal office.
| 17 | | "Broker" means an individual, partnership, limited | 18 | | liability company,
corporation, or registered limited | 19 | | liability partnership other than a real
estate salesperson or | 20 | | leasing agent who, whether in person or through any media or | 21 | | technology, for another and for compensation, or
with the | 22 | | intention or expectation of receiving compensation, either
| 23 | | directly or indirectly:
| 24 | | (1) Sells, exchanges, purchases, rents, or leases real | 25 | | estate.
| 26 | | (2) Offers to sell, exchange, purchase, rent, or lease |
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| 1 | | real estate.
| 2 | | (3) Negotiates, offers, attempts, or agrees to | 3 | | negotiate the sale,
exchange, purchase, rental, or leasing | 4 | | of real estate.
| 5 | | (4) Lists, offers, attempts, or agrees to list real | 6 | | estate for sale,
lease, or exchange.
| 7 | | (5) Buys, sells, offers to buy or sell, or otherwise | 8 | | deals in options on
real estate or improvements thereon.
| 9 | | (6) Supervises the collection, offer, attempt, or | 10 | | agreement
to collect rent for the use of real estate.
| 11 | | (7) Advertises or represents himself or herself as | 12 | | being engaged in the
business of buying, selling, | 13 | | exchanging, renting, or leasing real estate.
| 14 | | (8) Assists or directs in procuring or referring of | 15 | | leads or prospects, intended to
result in the sale, | 16 | | exchange, lease, or rental of real estate.
| 17 | | (9) Assists or directs in the negotiation of any | 18 | | transaction intended to
result in the sale, exchange, | 19 | | lease, or rental of real estate.
| 20 | | (10) Opens real estate to the public for marketing | 21 | | purposes.
| 22 | | (11) Sells, leases, or offers for sale or lease real | 23 | | estate at
auction.
| 24 | | (12) Prepares or provides a broker price opinion or | 25 | | comparative market analysis as those terms are defined in | 26 | | this Act, pursuant to the provisions of Section 10-45 of |
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| 1 | | this Act. | 2 | | "Brokerage agreement" means a written or oral agreement | 3 | | between a sponsoring
broker and a consumer for licensed | 4 | | activities to be provided to a consumer in
return for | 5 | | compensation or the right to receive compensation from another.
| 6 | | Brokerage agreements may constitute either a bilateral or a | 7 | | unilateral
agreement between the broker and the broker's client | 8 | | depending upon the content
of the brokerage agreement. All | 9 | | exclusive brokerage agreements shall be in
writing.
| 10 | | "Broker price opinion" means an estimate or analysis of the | 11 | | probable selling price of a particular interest in real estate, | 12 | | which may provide a varying level of detail about the | 13 | | property's condition, market, and neighborhood and information | 14 | | on comparable sales. The activities of a real estate broker or | 15 | | managing broker engaging in the ordinary course of business as | 16 | | a broker, as defined in this Section, shall not be considered a | 17 | | broker price opinion if no compensation is paid to the broker | 18 | | or managing broker, other than compensation based upon the sale | 19 | | or rental of real estate. | 20 | | "Client" means a person who is being represented by a | 21 | | licensee.
| 22 | | "Comparative market analysis" is an analysis or opinion | 23 | | regarding pricing, marketing, or financial aspects relating to | 24 | | a specified interest or interests in real estate that may be | 25 | | based upon an analysis of comparative market data, the | 26 | | expertise of the real estate broker or managing broker, and |
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| 1 | | such other factors as the broker or managing broker may deem | 2 | | appropriate in developing or preparing such analysis or | 3 | | opinion. The activities of a real estate broker or managing | 4 | | broker engaging in the ordinary course of business as a broker, | 5 | | as defined in this Section, shall not be considered a | 6 | | comparative market analysis if no compensation is paid to the | 7 | | broker or managing broker, other than compensation based upon | 8 | | the sale or rental of real estate. | 9 | | "Compensation" means the valuable consideration given by | 10 | | one person or entity
to another person or entity in exchange | 11 | | for the performance of some activity or
service. Compensation | 12 | | shall include the transfer of valuable consideration,
| 13 | | including without limitation the following:
| 14 | | (1) commissions;
| 15 | | (2) referral fees;
| 16 | | (3) bonuses;
| 17 | | (4) prizes;
| 18 | | (5) merchandise;
| 19 | | (6) finder fees;
| 20 | | (7) performance of services;
| 21 | | (8) coupons or gift certificates;
| 22 | | (9) discounts;
| 23 | | (10) rebates;
| 24 | | (11) a chance to win a raffle, drawing, lottery, or | 25 | | similar game of chance
not prohibited by any other law or | 26 | | statute;
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| 1 | | (12) retainer fee; or
| 2 | | (13) salary.
| 3 | | "Confidential information" means information obtained by a | 4 | | licensee from a
client during the term of a brokerage agreement | 5 | | that (i) was made confidential
by the written request or | 6 | | written instruction of the client, (ii) deals with
the | 7 | | negotiating position of the client, or (iii) is information the | 8 | | disclosure
of which could materially harm the negotiating | 9 | | position of the client, unless
at any time:
| 10 | | (1) the client permits the disclosure of information | 11 | | given by that client
by word or conduct;
| 12 | | (2) the disclosure is required by law; or
| 13 | | (3) the information becomes public from a source other | 14 | | than the licensee.
| 15 | | "Confidential information" shall not be considered to | 16 | | include material
information about the physical condition of | 17 | | the property.
| 18 | | "Consumer" means a person or entity seeking or receiving | 19 | | licensed
activities.
| 20 | | "Continuing education school" means any person licensed by | 21 | | the Department as a school
for continuing education in | 22 | | accordance with Section 30-15 of this Act. | 23 | | "Coordinator" means the Coordinator of Real Estate created | 24 | | in Section 25-15 of this Act.
| 25 | | "Credit hour" means 50 minutes of classroom instruction in | 26 | | course work that
meets the requirements set forth in rules |
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| 1 | | adopted by the Department.
| 2 | | "Customer" means a consumer who is not being represented by | 3 | | the licensee but
for whom the licensee is performing | 4 | | ministerial acts.
| 5 | | "Department" means the Department of Financial and | 6 | | Professional Regulation. | 7 | | "Designated agency" means a contractual relationship | 8 | | between a sponsoring
broker and a client under Section 15-50 of | 9 | | this Act in which one or more
licensees associated with or | 10 | | employed by the broker are designated as agent of
the client.
| 11 | | "Designated agent" means a sponsored licensee named by a | 12 | | sponsoring broker as
the legal agent of a client, as provided | 13 | | for in Section 15-50 of this Act.
| 14 | | "Dual agency" means an agency relationship in which a | 15 | | licensee is
representing both buyer and seller or both landlord | 16 | | and tenant in the same
transaction. When the agency | 17 | | relationship is a designated agency, the
question of whether | 18 | | there is a dual agency shall be determined by the agency
| 19 | | relationships of the designated agent of the parties and not of | 20 | | the sponsoring
broker.
| 21 | | "Employee" or other derivative of the word "employee", when | 22 | | used to refer to,
describe, or delineate the relationship | 23 | | between a real estate broker and a real
estate salesperson, | 24 | | another real estate broker, or a leasing agent, shall be
| 25 | | construed to include an independent contractor relationship, | 26 | | provided that a
written agreement exists that clearly |
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| 1 | | establishes and states the relationship.
All responsibilities | 2 | | of a broker shall remain.
| 3 | | "Escrow moneys" means all moneys, promissory notes or any | 4 | | other type or
manner of legal tender or financial consideration | 5 | | deposited with any person for
the benefit of the parties to the | 6 | | transaction. A transaction exists once an
agreement has been | 7 | | reached and an accepted real estate contract signed or lease
| 8 | | agreed to by the parties. Escrow moneys includes without | 9 | | limitation earnest
moneys and security deposits, except those | 10 | | security deposits in which the
person holding the security | 11 | | deposit is also the sole owner of the property
being leased and | 12 | | for which the security deposit is being held.
| 13 | | "Electronic means of proctoring" means a methodology | 14 | | providing assurance that the person taking a test and | 15 | | completing the answers to questions is the person seeking | 16 | | licensure or credit for continuing education and is doing so | 17 | | without the aid of a third party or other device. | 18 | | "Exclusive brokerage agreement" means a written brokerage | 19 | | agreement that provides that the sponsoring broker has the sole | 20 | | right, through one or more sponsored licensees, to act as the | 21 | | exclusive designated agent or representative of the client and | 22 | | that meets the requirements of Section 15-75 of this Act.
| 23 | | "Grandfathered auctioneer" means a person who is exempt | 24 | | from holding a license under paragraph (13) of Section 5-20 of | 25 | | this Act. | 26 | | "Inoperative" means a status of licensure where the |
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| 1 | | licensee holds a current
license under this Act, but the | 2 | | licensee is prohibited from engaging in
licensed activities | 3 | | because the licensee is unsponsored or the license of the
| 4 | | sponsoring broker with whom the licensee is associated or by | 5 | | whom he or she is
employed is currently expired, revoked, | 6 | | suspended, or otherwise rendered
invalid under this Act.
| 7 | | "Interactive delivery method" means delivery of a course by | 8 | | an instructor through a medium allowing for 2-way communication | 9 | | between the instructor and a student in which either can | 10 | | initiate or respond to questions. | 11 | | "Leads" means the name or names of a potential buyer, | 12 | | seller, lessor, lessee, or client of a licensee. | 13 | | "Leasing Agent" means a person who is employed by a real | 14 | | estate broker to
engage in licensed activities limited to | 15 | | leasing residential real estate who
has obtained a license as | 16 | | provided for in Section 5-5 of this Act.
| 17 | | "License" means the document issued by the Department | 18 | | certifying that the person named
thereon has fulfilled all | 19 | | requirements prerequisite to licensure under this
Act.
| 20 | | "Licensed activities" means those activities listed in the | 21 | | definition of
"broker" under this Section.
| 22 | | "Licensee" means any person, as defined in this Section, | 23 | | who holds a
valid unexpired license as a real estate broker, | 24 | | real estate salesperson, or
leasing agent.
| 25 | | "Listing presentation" means a communication between a | 26 | | real estate broker or
salesperson and a consumer in which the |
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| 1 | | licensee is attempting to secure a
brokerage agreement with the | 2 | | consumer to market the consumer's real estate for
sale or | 3 | | lease.
| 4 | | "Managing broker" means a broker who has supervisory | 5 | | responsibilities for
licensees in one or, in the case of a | 6 | | multi-office company, more than one
office and who has been | 7 | | appointed as such by the sponsoring broker.
| 8 | | "Medium of advertising" means any method of communication | 9 | | intended to
influence the general public to use or purchase a | 10 | | particular good or service or
real estate.
| 11 | | "Ministerial acts" means those acts that a licensee may | 12 | | perform for a
consumer that are informative or clerical in | 13 | | nature and do not rise to the
level of active representation on | 14 | | behalf of a consumer. Examples of these acts
include without | 15 | | limitation (i) responding to phone inquiries by consumers as to
| 16 | | the availability and pricing of brokerage services, (ii) | 17 | | responding to phone
inquiries from a consumer concerning the | 18 | | price or location of property, (iii)
attending an open house | 19 | | and responding to questions about the property from a
consumer, | 20 | | (iv) setting an appointment to view property, (v) responding to
| 21 | | questions of consumers walking into a licensee's office | 22 | | concerning brokerage
services offered or particular | 23 | | properties, (vi) accompanying an appraiser,
inspector, | 24 | | contractor, or similar third party on a visit to a property, | 25 | | (vii)
describing a property or the property's condition in | 26 | | response to a consumer's
inquiry, (viii) completing business or |
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| 1 | | factual information for a consumer on an
offer or contract to | 2 | | purchase on behalf of a client, (ix) showing a client
through a | 3 | | property being sold by an owner on his or her own behalf, or | 4 | | (x)
referral to another broker or service provider.
| 5 | | "Office" means a real estate broker's place of business | 6 | | where the general
public is invited to transact business and | 7 | | where records may be maintained and
licenses displayed, whether | 8 | | or not it is the broker's principal place of
business.
| 9 | | "Person" means and includes individuals, entities, | 10 | | corporations, limited
liability companies, registered limited | 11 | | liability partnerships, and
partnerships, foreign or domestic, | 12 | | except that when the context otherwise
requires, the term may | 13 | | refer to a single individual or other described entity.
| 14 | | "Personal assistant" means a licensed or unlicensed person | 15 | | who has been hired
for the purpose of aiding or assisting a | 16 | | sponsored licensee in the performance
of the sponsored | 17 | | licensee's job.
| 18 | | "Pocket card" means the card issued by the Department to | 19 | | signify that the person named
on the card is currently licensed | 20 | | under this Act.
| 21 | | "Pre-license school" means a school licensed by the | 22 | | Department offering courses in
subjects related to real estate | 23 | | transactions, including the subjects upon
which an applicant is | 24 | | examined in determining fitness to receive a license.
| 25 | | "Pre-renewal period" means the period between the date of | 26 | | issue of a
currently valid license and the license's expiration |
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| 1 | | date.
| 2 | | "Proctor" means any person, including, but not limited to, | 3 | | an instructor, who has a written agreement to administer | 4 | | examinations fairly and impartially with a licensed | 5 | | pre-license school or a licensed continuing education school. | 6 | | "Real estate" means and includes leaseholds as well as any | 7 | | other interest or
estate in land, whether corporeal, | 8 | | incorporeal, freehold, or non-freehold,
including timeshare | 9 | | interests, and whether the real estate is situated in this
| 10 | | State or elsewhere.
| 11 | | "Regular employee" means a person working an average of 20 | 12 | | hours per week for a person or entity who would be considered | 13 | | as an employee under the Internal Revenue Service eleven main | 14 | | tests in three categories being behavioral control, financial | 15 | | control and the type of relationship of the parties, formerly | 16 | | the twenty factor test.
| 17 | | "Salesperson" means any individual, other than a real | 18 | | estate broker or
leasing agent, who is employed by a real | 19 | | estate broker or is associated by
written agreement with a real | 20 | | estate broker as an independent contractor and
participates in | 21 | | any activity described in the definition of "broker" under this
| 22 | | Section.
| 23 | | "Secretary" means the Secretary of the Department of | 24 | | Financial and Professional Regulation, or a person authorized | 25 | | by the Secretary to act in the Secretary's stead. | 26 | | "Sponsoring broker" means the broker who has issued a |
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| 1 | | sponsor card to a
licensed salesperson, another licensed | 2 | | broker, or a leasing agent.
| 3 | | "Sponsor card" means the temporary permit issued by the | 4 | | sponsoring real
estate broker certifying that the real estate | 5 | | broker, real estate salesperson,
or leasing agent named thereon | 6 | | is employed by or associated by written
agreement with the | 7 | | sponsoring real estate broker, as provided for in Section
5-40 | 8 | | of this Act.
| 9 | | (Source: P.A. 98-531, eff. 8-23-13; 98-1109, eff. 1-1-15 .)
| 10 | | (225 ILCS 454/5-32) | 11 | | (Section scheduled to be repealed on January 1, 2020) | 12 | | Sec. 5-32. Real estate auction certification. | 13 | | (a) An auctioneer licensed under the Auction License Act | 14 | | who does not possess a valid and active broker's or managing | 15 | | broker's license under this Act, or who is not otherwise exempt | 16 | | from licensure, may not engage in the practice of auctioning | 17 | | real estate, except as provided in this Section. | 18 | | (b) The Department shall issue a real estate auction | 19 | | certification to applicants who: | 20 | | (1) possess a valid auctioneer's license under the | 21 | | Auction License Act; | 22 | | (2) successfully complete a real estate auction course | 23 | | of at least 30 hours approved by the Department, which | 24 | | shall cover the scope of activities that may be engaged in | 25 | | by a person holding a real estate auction certification and |
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| 1 | | the activities for which a person must hold a real estate | 2 | | license, as well as other material as provided by the | 3 | | Department; | 4 | | (3) provide documentation of the completion of the real | 5 | | estate auction course; and | 6 | | (4) successfully complete any other reasonable | 7 | | requirements as provided by rule. | 8 | | (c) The auctioneer's role shall be limited to establishing | 9 | | the time, place, and method of the real estate auction, placing | 10 | | advertisements regarding the auction, and crying or calling the | 11 | | auction; any other real estate brokerage activities must be | 12 | | performed by a person holding a valid and active real estate | 13 | | broker's or managing broker's license under the provisions of | 14 | | this Act or by a grandfathered auctioneer a person who is | 15 | | exempt from holding a license under paragraph (13) of Section | 16 | | 5-20 who has a certificate under this Section. A grandfathered | 17 | | auctioneer must only be certified under this Section if the | 18 | | grandfathered auctioneer sells or leases real estate at auction | 19 | | in a transaction in which a licensed auctioneer with a real | 20 | | estate certification is providing the limited services | 21 | | provided for in this subsection (c). | 22 | | (d) An auctioneer who conducts any real estate auction | 23 | | activities in violation of this Section is guilty of unlicensed | 24 | | practice under Section 20-10 of this Act. | 25 | | (e) The Department may revoke, suspend, or otherwise | 26 | | discipline the real estate auction certification of an |
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| 1 | | auctioneer who is adjudicated to be in violation of the | 2 | | provisions of this Section or Section 20-15 of the Auction | 3 | | License Act. | 4 | | (f) Advertising for the real estate auction must contain | 5 | | the name and address of the licensed real estate broker, | 6 | | managing broker, or a licensed auctioneer under paragraph (13) | 7 | | of Section 5-20 of this Act who is providing brokerage services | 8 | | for the transaction. | 9 | | (g) (Blank). The requirement to hold a real estate auction | 10 | | certification shall not apply to a person exempt from this Act | 11 | | under the provisions of paragraph (13) of Section 5-20 of this | 12 | | Act, unless that person is performing licensed activities in a | 13 | | transaction in which a licensed auctioneer with a real estate | 14 | | certification is providing the limited services provided for in | 15 | | subsection (c) of this Section. | 16 | | (h) Nothing in this Section shall require a person licensed | 17 | | under this Act as a real estate broker or managing broker to | 18 | | obtain a real estate auction certification in order to auction | 19 | | real estate. | 20 | | (i) The Department may adopt rules to implement this | 21 | | Section.
| 22 | | (Source: P.A. 98-553, eff. 1-1-14; 98-756, eff. 7-16-14.)
| 23 | | Section 99. Effective date. This Act takes effect upon | 24 | | becoming law.
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