§ 2211. Definitions
(a) When used in this chapter, the following definitions shall have the following meanings except where the context clearly indicates that another meaning is intended:
(1) "Commission" means the Vermont real estate commission.
(2) "Person" means and include individuals, corporations, partnerships, trusts, associations, cooperatives, or other firms or entities, foreign or domestic.
(3) "Real estate," "real property," "realty," or words of like import, means any interest or estate in land, excepting leaseholds, whether such interest or estate is corporeal, incorporeal, freehold, or nonfreehold, and whether situated in this state or elsewhere; provided, however, that the meaning as used in this chapter shall not include oil, gas, or mineral leases, nor shall it include any other mineral leasehold, mineral estate, or mineral interest of any nature whatsoever.
(4) "Real estate broker," or "broker," means any person who, for another, for a fee, commission, salary, or other consideration, or with the intention or expectation of receiving or collecting such compensation from another, engages in or offers or attempts to engage in, either directly or indirectly, by a continuing course of conduct, any of the following acts:
(A) lists, offers, attempts, or agrees to list real estate or any interest therein for sale or exchange;
(B) sells, exchanges, or purchases real estate or any interest therein;
(C) offers to sell, exchange, or purchase real estate or any interest therein;
(D) negotiates, or offers, attempts, or agrees to negotiate the sale, exchange, or purchase of real estate, or any interest therein;
(E) buys, sells, offers to buy or sell, or otherwise deals in options on real estate or any interest therein;
(F) advertises or holds himself or herself out as being engaged in the business of buying, selling, or exchanging real estate or any interest therein;
(G) assists or directs in the procuring of prospects, calculated to result in the sale or exchange of real estate or any interest therein; however, a nonlicensed employee of a licensee shall be allowed to respond to inquiries from members of the public, so long as the employee makes it clear that he or she is not licensed and that any information provided should be confirmed by a licensed person.
(5) "Real estate salesperson" or "salesperson" means any person who for a fee, compensation, salary, or other consideration, or in the expectation or upon the promise thereof, is employed by or associated with a licensed real estate broker to do any act or deal in any transaction as provided in subdivision (a)(4) of this section for or on behalf of such licensed real estate broker.
(b) The terms "real estate broker," "real estate salesperson," or "broker" shall not be held to include:
(1) any person, partnership, association, or corporation who as a bona fide owner performs any of the aforesaid acts with reference to property owned by them, nor shall it apply to regular employees thereof, where such acts are performed in the regular course of or as an incident to the management of such property and the investment therein. This subdivision shall not apply to licensees;
(2) any attorney at law, admitted to practice in Vermont, handling sales of real estate in the course of estate or guardianship administration, or trust administration, bankruptcy proceedings, receiverships, or like actions subject to approval by a court of competent jurisdiction, or sales of real estate arising in the usual course of the practice of law;
(3) any person selling real estate as an auctioneer, provided such sale is advertised as a bona fide public auction;
(4) any bank or trust company or any of its officers or employees in the performance of their duties as an officer or employee of any such bank or trust company while performing activities listed in subdivision (a)(4) of this section with respect to real estate owned by that bank or trust company;
(5) any person holding in good faith a duly executed power of attorney from the owner, authorizing a final consummation and execution for the sale, purchase, or exchange of real estate when such acts are not of a recurrent nature and done with the intention of evading this section;
(6) any person while acting as a receiver, trustee, administrator, executor, guardian, or under court order, or while acting under authority of a deed, trust, or will;
(7) public officers while performing their duties as such;
(8) any person who leases real estate or any interest therein or any improvements affixed thereon, or offers to lease, negotiates the lease of, or advertises as being in the business of leasing real estate;
(9) any person registered as a securities dealer or salesperson by the commissioner of financial regulation pursuant to 9 V.S.A. chapter 131 when selling securities. (Amended 1969, No. 283 (Adj. Sess.), § 1; 1979, No. 81, § 1, eff. May 10, 1979; 1985, No. 6, § 1; 1989, No. 225 (Adj. Sess.), § 25; 1995, No. 180 (Adj. Sess.), § 38; 2011, No. 78 (Adj. Sess.), § 2, eff. April 2, 2012.)
§ 2212. Prohibition
Except as may be otherwise provided in this chapter, a person, firm, partnership, association, or corporation shall not engage in the business or act in the capacity of real estate broker or salesperson within this state without first obtaining a license therefor. (Amended 1985, No. 6, § 1.)
§ 2213. Penalties
A person who shall violate any provision of this chapter shall be subject to the penalties provided in 3 V.S.A. § 127(c). (Amended 1985, No. 6, § 1; 2007, No. 29, § 33.)
§ 2214. Trust and escrow accounts
(a) Every real estate broker, within five banking days, shall deposit in a trust or escrow account in a bank or other financial institution licensed to do business in this state all earnest money and contract deposits held by him or her as a real estate broker in which the clients or other persons with whom the broker is dealing have an interest. Trust and escrow accounts shall be maintained separate and apart from a broker's individual or office account. The broker shall maintain at the broker's usual place of business, books, records, contracts, and other documents pertinent to or relating to the trust or escrow account and moneys therein, which shall be open for inspection by the commission and its duly authorized agents at the broker's usual place of business during regular business hours. The broker shall notify the commission, within 10 days after opening any trust or escrow account, of the bank or other financial institution in which the account is located.
(b) If a deposit is reasonably expected to earn a substantial amount of interest, the broker shall place the deposit in an individual interest-bearing trust or escrow account for the benefit of the beneficial owner. In regard to individual interest-bearing trust and escrow accounts:
(1) Unless otherwise agreed to in writing by all parties, the interest earned shall be applied to the purchase price due from the buyer if the sale is consummated, shall be returned to the buyer if the deposit is returned to the buyer, and shall be payable to the seller if the buyer defaults. Contracts shall carry this language conspicuously above the signature lines.
(2) No checks shall be drawn against uncollected deposits in the account.
(3) None of the contract deposits shall be withdrawn until the contract has been terminated by performance, or by operation of its own terms, or by agreement in writing between all parties involved in the contract, or by order of a court of competent jurisdiction.
(c) If a deposit is not reasonably expected to earn a substantial amount of interest, the broker shall place the deposit in a pooled interest-bearing trust or escrow account and direct that the interest be remitted to the Vermont housing finance agency in accordance with the provisions of 8 V.S.A. § 14210.
(d) The broker shall inform the depositor whether funds are deposited into an individual account pursuant to subsection (b) of this section or in a pooled account pursuant to subsection (c) of this section. The broker shall retain a written statement of this disclosure signed by the beneficial owner of the account. (Added 1969, No. 283 (Adj. Sess.), § 12; amended 1985, No. 6, § 1; 1991, No. 86, § 4, eff. Jan. 1, 1992; 1999, No. 153 (Adj. Sess.), § 25, eff. Jan. 1, 2001.)
§ 2251. Real estate commission
(a) A Vermont real estate commission is created, consisting of seven members. One member of the commission shall be an attorney at law. Two shall be members of the public who have no financial interest in the activities regulated under this chapter, other than as consumers or possible consumers of its services. These persons shall have no financial interest personally or through a spouse, parent, child, brother, or sister. "Financial interest" means dealing in goods or services which are uniquely related to activities regulated under this chapter, or investing anything of value in a business licensed under this chapter.
(b) Three members of the commission shall be licensed real estate brokers whose vocations shall have been that of real estate broker for at least four years. At least one of the broker members shall not be a member of a professional real estate association at the time of appointment or at any time during tenure as a member. One of the commission members shall be a licensed salesperson. If a salesperson becomes a broker while serving on the commission, that salesperson shall become ineligible to continue to serve as the salesperson member of the commission.
(c) Commission members shall be appointed by the governor pursuant to 3 V.S.A. §§ 129b and 2004. To the extent possible, appointments shall be geographically representative.
(d)-(f) [Deleted.] (Amended 1963, No. 193, § 13, eff. June 28, 1963; 1969, No. 283 (Adj. Sess.), § 2; 1985, No. 6, § 1; 2005, No. 27, § 65.)
§ 2252. Powers and duties
(a) The commission shall adopt rules in accordance with chapter 25 of Title 3 necessary for the performance of its duties, including:
(1) a definition of the activities which may be performed only by a licensee, in accordance with section 2211 of this title;
(2) qualifications for obtaining licensure, in accordance with section 2292 of this title;
(3) explanations of appeal and other significant rights given to applicants and the public;
(4) procedures for disciplinary and reinstatement cases;
(5) criteria for determining whether or not a deposit is reasonably expected to earn a substantial amount of interest in accordance with subsections 2214(b) and (c) of this title. The criteria shall include, but not be limited to the following:
(A) The amount of the deposit and the time period the deposit is expected to be held.
(B) The cost of establishing and maintaining an interest-bearing account, including minimum account balances, service charges, legal fees, accounting fees, and tax reporting procedures.
(C) The nature of the transaction involved.
(b) The commission shall:
(1) if applications for licensure by examination are pending, offer examinations at least four times each year and pass upon the qualifications of applicants for licensing;
(2) use the administrative and legal services provided by the office of professional regulation under 3 V.S.A. chapter 5;
(3) investigate suspected unprofessional conduct.
(c) The commission may:
(1) investigate suspected cases of unauthorized practice of activities regulated by this chapter, and refer any such case to the attorney general or a state's attorney for possible prosecution and injunctive relief;
(2) conduct hearings;
(3) administer oaths and issue subpoenas pursuant to 3 V.S.A. §§ 809a and 809b;
(4) issue orders relating to discovery in the same manner as a judge under the Vermont Rules of Civil Procedure, which may be enforced in the same manner as a subpoena;
(5) adopt rules relating to the procedures to be followed in handling complaints and conducting hearings under this chapter;
(6) receive assistance from the attorney general or other state agencies, so long as the assistance is not contrary to any other state law.
(d) The commission shall provide proposed rules to the director of the office of professional regulation for review and comment. The director's comments shall be forwarded to the administrative rules committee. (Amended 1969, No. 283 (Adj. Sess.), § 3; 1985, No. 6, § 1; 1989, No. 250 (Adj. Sess.) § 4(d); 1991, No. 86, § 5, eff. June 26, 1991.)
§ 2253. Commission procedures
(a) Annually, the commission shall meet to elect a chairperson, a vice chairperson, and a secretary.
(b) Meetings may be called by the chairperson and shall be called upon the request of any other two members.
(c) Meetings shall be warned and conducted in accordance with 1 V.S.A. chapter 5.
(d) A majority of the members of the commission shall be a quorum for transacting business, and all action shall be taken upon a majority vote of the members present and voting.
(e)-(g) [Deleted.] (Amended 1963, No. 66, § 1; 1969, No. 283 (Adj. Sess.), § 4; 1985, No. 6, § 1; 2005, No. 27, § 66.)
§ 2254. Repealed. 1985, No. 6, § 1.
§ 2255. Fees
Applicants and persons regulated under this chapter shall pay the following fees:
(1) Application (A) Broker license $ 50.00 (B) Salesperson license $ 50.00 (C) Brokerage firm registration (i) Corporation or partnership $ 50.00 (ii) Sole proprietor $ 0.00 (D) Branch office registration $ 50.00 (2) Biennial renewal of broker or salesperson license $ 175.00 (3) Biennial registration renewal (A) Corporation or partnership $ 75.00 (B) Sole proprietor $ 0.00 (4) Temporary permit $ 25.00 (5) Transfer of license $ 10.00 (6) Transfer to inactive status $ 25.00
(Added 1985, No. 6, § 1; amended 1989, No. 250 (Adj. Sess.), § 56; 1995, No. 47, § 25.)
§ 2291. General provisions
A real estate license shall not be authority for more than one person to perform the activities listed in section 2211 of this title. A person, firm, partnership, association, or corporation shall designate in its application the individual who is to serve as broker under the license. Every applicant for licensure shall have attained the age of majority. (Amended 1969, No. 283 (Adj. Sess.), § 5; 1971, No. 184 (Adj. Sess.), § 23, eff. March 29, 1972; 1985, No. 6, § 1.)
§ 2292. Eligibility
(a) A license as a real estate broker shall be granted to a person who satisfies all of the following:
(1) Has passed an examination as required by the commission.
(2) Has gained at least two years' experience satisfactory to the commission as a licensed salesperson, including at least eight separate and unrelated closed transactions.
(3) Has completed a course of instruction of at least 40 hours, approved by the commission.
(b) A license as a real estate salesperson shall be granted to a person who satisfies all of the following:
(1) Has passed an examination as required by the commission.
(2) Is at least 18 years old.
(3) Has been employed by or become associated with a brokerage firm and that firm's principal broker.
(4) Has completed a course of instruction, approved by the commission, of at least 40 hours.
(c) The commission may waive all or a part of the examination requirement if the applicant is a real estate broker or salesperson regulated under the laws of another jurisdiction, who is in good standing to practice in that jurisdiction and, in the opinion of the commission, the jurisdiction's examination is substantially equal to that required by this chapter. (Amended 1963, No. 66, § 2; 1969, No. 283 (Adj. Sess.), § 6; 1979, No. 81, § 2, eff. May 10, 1979; 1985, No. 6, § 1; 1997, No. 40, § 28; 2001, No. 151 (Adj. Sess.), § 21, eff. June 27, 2002; 2005, No. 27, § 67.)
§ 2292a. Examinations
(a) The commission shall select and administer examinations for licensure. The commission may use independent testing services or others to assist in the administration of written examinations.
(b) Examinations and examination procedures shall be fair and reasonable and shall be designed to ensure that all applicants are licensed if they demonstrate that they possess the minimal occupational qualifications which are consistent with the public health, safety, and welfare. They shall not be designed or implemented for the purpose of limiting the number of licensees. (Added 1997, No. 40, § 29.)
§ 2293. Renewal of license; lapsed license
(a) Licenses shall be renewed every two years without examination and on payment of the required fees, provided that the person applying for renewal completes at least 16 hours of instruction for brokers and 16 hours of instruction for salespersons, approved by the commission, during the preceding two-year period. Four hours of this continuing education instruction shall address legislation and other topics specified by the real estate commission for each renewal period.
(b) A broker or salesperson applying for reinstatement of a license that has lapsed shall be assessed both the renewal fee and late renewal penalty established by the director of the office of professional regulation and shall not be assessed renewal fees for the years during which the license was lapsed. Reinstatement shall not take place until the applicant completes the continuing education required for the previous renewal period.
(c) If a broker or salesperson's license has lapsed for greater than five consecutive years, the broker or salesperson shall apply for reinstatement in accordance with the initial licensure requirements as set forth in section 2292 of this title, including a course of instruction and examination. The commission may waive the reinstatement requirements based upon licensed practice in another state.
(d) The commission may waive or postpone compliance with the instructional requirements of this section in cases of extreme hardship on the part of the licensee. No licensee, however, may receive a postponement or waiver for two successive two-year periods of licensure. The commission may accept fewer hours of continuing education instruction for renewal of a license on a prorated basis following an initial licensing period of less than two years.
(e) [Repealed.] (Amended 1969, No. 283 (Adj. Sess.), § 7; 1985, No. 6, § 1; 1989, No. 250 (Adj. Sess.), § 4(d); 1997, No. 145 (Adj. Sess.), § 29a; 2005, No. 27, § 68; 2005, No. 148 (Adj. Sess.), §§ 20, 53.)
§ 2294. Change of name or location
(a) Whenever a licensed broker desires to be licensed under a different name, the broker shall pay the fee established under section 2255 of this title. A license shall not be issued to a broker in a name other than the broker's own, or transferred to a name other than the broker's own, unless he or she has complied with 11 V.S.A. chapter 15 relating to registration of business entities. If a licensee is a partnership, corporation, or association, notice of any change in the names and addresses of the partners, officers, or associates shall be given to the real estate commission within ten days after the change becomes effective.
(b) Each licensee shall notify the commission in writing of any change of the licensee's principal business location, and the commission shall issue a new license with the new address for the fee established under section 2255. Duplicate licenses may be obtained on payment of the fee established under section 2255.
(c) If a broker maintains more than one place of business within the state, a branch office license shall be issued to that broker for each branch office so maintained. Branch offices shall incorporate the same name as the main office and shall have a licensed broker in charge. (Added 1969, No. 283 (Adj. Sess.), § 14; amended 1985, No. 6, § 1.)
§ 2295. Display of license
All licenses shall be conspicuously displayed within licensee's place of business. (Amended 1979, No. 81, § 3, eff. May 10, 1979; 1985, No. 6, § 1.)
§ 2296. Unprofessional conduct; discipline of licensee
(a) Unprofessional conduct means the following conduct and the conduct set forth in 3 V.S.A. § 129a:
(1) makes a material misstatement in the application for his or her license;
(2) uses dishonest or misleading advertising;
(3) demonstrates incompetency to act as a real estate broker or salesperson;
(4) is found by the commission to be guilty of fraud or fraudulent practices; or is convicted for violating this chapter; or is convicted of forgery, embezzlement, obtaining money under false pretenses, or conspiring to defraud;
(5) commingles money or other property to which the licensee's clients or other persons are entitled with the licensee's own;
(6) fails to inform clients, establish trust and escrow accounts, maintain records, and otherwise act in accordance with the provisions of section 2214 of this title with respect to all moneys received by the licensee as a real estate broker, or as escrow agent, or as the temporary custodian of the funds of others, in a real estate transaction;
(7) fails promptly to segregate any properties received which are to be held for the benefit of others;
(8) is found by the commission to have engaged in any act or conduct, whether of the same or different character as that described above, which contributes to or demonstrates incompetency or dishonest fraudulent dealings;
(9) fails to fully disclose to a buyer all material facts within the licensee's knowledge concerning the property being sold;
(10) fails to fully disclose to a buyer the existence of an agency relationship between the licensee and the seller.
(b) The maintenance of nominal amounts of a licensee's funds in a trust account to meet bank service charges is not a violation of this chapter.
(c) The commission shall accept written complaints from any member of the public, any licensee, any state or federal agency, or the attorney general. The commission may initiate disciplinary action in response to any complaint against a licensee.
(d) The burden of proof shall be on the state to show by a preponderance of the evidence that the licensee has engaged in unprofessional conduct.
(e) After hearing and upon a finding of unprofessional conduct, the commission may:
(1) revoke a license;
(2) suspend a license; or
(3) issue a warning or reprimand or both to a licensee.
(f) Before or after hearing, the commission may approve a negotiated agreement between the prosecutor and the licensee when it is in the best interest of the public health, safety, or welfare to do so.
(1) Such an agreement may include, without limitation, any of the following conditions or restrictions which may be in addition to or in lieu of suspension:
(A) a requirement that a licensee submit to care or counseling;
(B) a restriction that a licensee practice only under supervision of a named person or a person with specified credentials;
(C) a requirement that a licensee participate in continuing education in order to overcome specified practical deficiencies;
(D) a requirement that the scope of practice permitted be restricted to a specified extent.
(2) Such an agreement may be modified by agreement of the prosecutor and the licensee, after obtaining the approval of the commission.
(g) A complainant, the prosecutor, or the licensee may petition the commission for modification of the terms of an order under this section.
(h) Where a license has been revoked, the commission may reinstate the license on terms and conditions it deems proper.
(i) In the event the commission takes disciplinary action, its findings and decision shall be in writing and signed by the chairperson. A certified copy of the findings and decision either shall be served on the licensee in the same manner as a subpoena, or shall be mailed to the licensee at the licensee's last known address by certified mail, return receipt requested. (Amended 1963, No. 66, §§ 3, 4; 1969, No. 283 (Adj. Sess.), § 8; 1979, No. 81, § 4, eff. May 10, 1979; 1985, No. 6, § 1; 1991, No. 86, § 6, eff. Jan. 1, 1992; 1997, No. 145 (Adj. Sess.), § 45.)
§ 2297. Nonresident broker
A nonresident of the state, who has held a real estate broker's or salesperson's license in the previous state of residence for a period of two years prior to applying for a license, may be licensed to act in a similar capacity in this state by conforming to the provisions of this chapter regarding application for and securing of license, except that the application shall be accompanied by a statement from the regulatory body of the other state concerning whether the applicant has been the subject of any criminal or disciplinary investigation or action. (Amended 1969, No. 283 (Adj. Sess.), § 9; 1985, No. 6, § 1.)
§ 2298. Director of the office of professional regulation as process agent
Every nonresident applicant shall file a stipulation appointing the director of the office of professional regulation and the director's successor in office as the applicant's true and lawful attorney, upon whom may be served all lawful process in any action or proceeding against the applicant. Such appointment shall contain an express agreement by the applicant that any lawful process against the applicant which is served on such attorney shall have the same legal force and effect as if served upon the applicant, and that the authority given in such appointment shall continue in force so long as any liability to any resident of this state remains unsatisfied. (Amended 1985, No. 6, § 1; 1989, No. 250 (Adj. Sess.), § 4(d).)
§ 2299. Death of broker; temporary license
In the event of the death of a licensed real estate broker, the commission may, upon application by the broker's legal representative, issue without examination a temporary license to such legal representative or to an individual designated by the representative or the broker and approved by the commission on payment of the prescribed fee established under section 2255 of this title. Such temporary licensee may continue to transact said real estate business for a period not to exceed one year. A temporary licensee shall not take new listings. (Added 1969, No. 283 (Adj. Sess.), § 15; amended 1985, No. 6, § 1.)
§§ 2300Repealed. 1985, No. 6, § 1.
§ 2301. Repealed. 1979, No. 81, § 5, eff. May 10, 1979.