Subchapter I. General Provisions
TITLE 24
Professions and Occupations
CHAPTER 29. REAL ESTATE BROKERS AND REAL ESTATE SALESPERSONS
Subchapter I. General Provisions
§ 2901. Definitions and exceptions.
(a) As used in this chapter:
(1) "Appraisal assignment" means an engagement for which an appraiser is employed or retained to act, or would be perceived by third parties or the public as acting, as a disinterested third party in rendering an unbiased appraisal.
(2) "Commission" shall mean the Delaware Real Estate Commission.
(3) "Real estate broker" or "broker" means any person who holds a broker's certificate from the commission and who, for a compensation or valuable consideration, is self-employed or is employed, either directly or indirectly by a broker owner, broker of record, or brokerage organization to sell or offer to sell, or to buy or to offer to buy, or to negotiate the purchase, sale, or exchange of real estate or to lease or rent or offer for rent any real estate, or to negotiate leases or rental agreements thereof or of the improvements thereon, as a whole or partial vocation. This definition shall not apply to an "auctioneer" as that term is defined in § 2301(a)(3) of Title 30.
(4) "Real estate salesperson" or "salesperson" means any person who holds a salesperson certificate from the commission and who, for a compensation or valuable consideration, is employed, either directly or indirectly by a broker, broker owner, broker of record, or brokerage organization to sell or offer to sell, or to buy or offer to buy, or to negotiate the purchase, sale or exchange of real estate, or to lease or rent or offer for rent any real estate, or to negotiate leases or rental agreements thereof or of the improvements thereon, as a whole or partial vocation. This definition shall not apply to an "auctioneer" as that term is defined in § 2301(a)(3) of Title 30.
(5) "Substantially related" means the nature of the criminal conduct, for which the person was convicted, has a direct bearing on the fitness or ability to perform 1 or more of the duties or responsibilities necessarily related to the practice of real estate brokering, real estate sales or real estate appraisal.
(6) "Broker of record" means that individual broker who is primarily responsible for the day to day management of a real estate brokerage office.
(7) "Brokerage organization" means that individual or entity which is not licensed but is acting as a broker under § 2910 of this title.
(8) "Broker owner" means the licensed broker who is also an owner of the Brokerage Organization but does not included owners, partners, members, shareholders or other holders of an equity interest who do not actively participate in the brokerage business of the organization.
(9) "Client" means the principal in a statutory agency or common law agency relationship.
(10) "Consumer" or "prospect" means a member of the public who has not yet become a "client" or "customer".
(11) "Customer" means someone working with a broker or salesperson as a potential buyer, seller, exchangor, tenant, or landlord of real property or is consulting with a broker or salesperson in 1 of these capacities for the purpose of entering into a brokerage agreement or transaction, but who is not yet in the statutory agency or common law agency relationship of principal and agent with the broker or salesperson.
(12) "Consumer Information Statement" or "CIS" means the disclosure form required by § 2972 of this title.
(13) "Licensee" means a person licensed under this chapter as a broker or salesperson without implying what legal relationship they have with a consumer.
(14) "Ministerial task" means a task that does not involve discretion or the exercise of the licensee's own judgment for example:
a. Performing tasks for a client or customer according to the brokerage agreement or other form of consent before or after the signing of an agreement of sale or lease such as arranging an inspection; or
b. Assisting other people to perform their part of the transaction such as providing information to the mortgage lender.
(15) "Statutory agent" or "agent" means a licensee functioning as party in an agency relationship created according to subchapter IV of this chapter as an independent contractor and not as a fiduciary. The agent offers products and services to the public to make a market in real estate by bringing buyer and seller, or landlord and tenant together for the transaction and assisting the parties with advice, assistance with negotiations, and performing ministerial tasks to complete the transaction. Every licensee shall be presumed to be a statutory agent and may refer to themselves as agent or statutory agent unless specifically identified as a common law agent in their brokerage agreement.
(b) This chapter shall not apply to:
(1) Any person who, as owner or lessor, performs any of the acts enumerated in this section with reference to property owned or leased by such person or to the regular employee thereof, with respect to the property so owned or leased, where such acts are performed in the regular course of or as an incident to the management of such property and the investment therein; or
(2) Persons acting as attorney in fact under a duly executed power of attorney from the owner authorizing the final consummation by performance of any contract of sale, leasing or exchange of real estate.
(c) This chapter shall not be construed to include in any way the services rendered by an attorney-at-law, nor shall it be held to include, while acting as such, the receiver, trustee in bankruptcy, administrator or executor, or any person selling real estate under order of any court, or a trustee acting under a trust agreement, deed of trust or will, or the regular salaried employee thereof.
35 Del. Laws, c. 63, § 4; Code 1935, § 5476; 24 Del. C. 1953, § 2901; 57 Del. Laws, c. 151; 59 Del. Laws, c. 468, § 2; 67 Del. Laws, c. 121, §§ 1, 2, 23; 67 Del. Laws, c. 381, §§ 2, 9; 67 Del. Laws, c. 438, §§ 1, 2; 74 Del. Laws, c. 262, § 54; 75 Del. Laws, c. 277, §§ 3-5; 76 Del. Laws, c. 258, §§ 1, 2.;
§ 2902. Real Estate Commission; appointment; qualifications; terms of office; vacancies; compensation.
(a) The Delaware Real Estate Commission shall consist of 9 members appointed by the Governor: 5 professional members, 4 of whom shall be licensed real estate brokers, and 1 salesperson; and 4 public members. All members shall have been residents of the State for 5 years immediately prior to such appointment.
(1) Four of the professional members shall be brokers: 1 shall be a resident of New Castle County; 1 shall be a resident of Kent County; 1 shall be a resident of Sussex County; and 1 shall maintain an office in the City of Wilmington. Broker members of the Commission shall have been active brokers or salespersons for 5 years immediately prior to their appointment.
(2) One of the professional members shall be a salesperson. The salesperson member shall have been an active salesperson for 4 years immediately prior to that salesperson's appointment.
(3) Of the 4 public members, at least 1 public member shall be from each county. To serve on the Commission, a public member shall not be, nor have been within the last 8 years of the effective date of appointment, a real estate salesperson or broker, nor a member of the immediate family of a salesperson or broker; shall not be, nor have been with the last 8 years of the effective date of appointment, employed by a real estate broker; shall not have had a financial interest in the providing of goods and services to a real estate broker or salesperson; and shall not be, nor have been within the last 8 years of the effective date of appointment, engaged in an activity directly related to the real estate profession. Such public member shall be accessible to inquiries, comments and suggestions from the general public.
(b) Each member shall serve for a term of 3 years, unless otherwise specified in this chapter; and may succeed himself or herself for 1 additional term; provided, however, that where a member was initially appointed to fill a vacancy, such member may succeed himself or herself for only 1 additional full term. Any person appointed to fill a vacancy on the Commission shall hold office for the remainder of the unexpired term of the former member.
(c) No member of the Real Estate Commission, while serving on the Commission, shall be a president, president-elect, vice-president, secretary, treasurer or other elected official of a professional association of real estate brokers or salespersons.
(d) No current Commissioner shall be subject to the provisions of § 2902(a)(1) and (3) of this title, unless and until the time of such Commissioner's reappointment to the Delaware Real Estate Commission.
(e) Any act or vote by a person appointed in violation of subsection (b) of this section shall be invalid. An amendment or revision of this chapter is not sufficient cause for any appointment or attempted appointment in violation of subsection (b) of this section, unless such amendment or revision amends this section to permit such an appointment.
(f) The provisions set forth for "employees" in Chapter 58 of Title 29 shall apply to all members of the Commission and to all agents appointed, or otherwise employed by the Commission.
(g) The Governor shall fill vacancies occurring for any reason other than expiration of term for unexpired terms of such Commissioners, and may remove any members of such Board for continued neglect of the duties required by this chapter or for unprofessional or dishonorable conduct.
(h) The members of the Commission shall each receive compensation at the rate of $50 per meeting attended; provided, however, no member shall receive compensation for the year in excess of $500 and the Commission shall not be paid for more than 10 meetings during a calendar year.
35 Del. Laws, c. 63, § 1; Code 1935, § 5473; 24 Del. C. 1953, § 2902; 57 Del. Laws, c. 151; 60 Del. Laws, c. 714, § 1; 63 Del. Laws, c. 463, §§ 1-4; 67 Del. Laws, c. 366, § 11; 67 Del. Laws, c. 368, § 18; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 603, §§ 1-6.;
§ 2903. Election of officers; quorum; special meetings.
(a) In the same month of each year, the members shall elect from among their number a Chairperson, Vice-Chairperson and Secretary. Each officer shall serve for 1 year, and shall not succeed himself or herself in the same office.
(b) The Commission shall hold regularly scheduled business meetings at least once in each quarter of a calendar year and at such other times as the Chair deems necessary, or at the request of a majority of Commission members. Special or emergency meetings may be held without notice, provided a quorum is present.
(c) A majority of members shall constitute a quorum, and no certificate issued under this chapter shall be suspended or revoked nor any civil penalty imposed without the affirmative vote of at least 5 members. Any member who fails to attend 3 consecutive unexcused meetings or who fails to attend at least half of all regular business meetings during any calendar year shall automatically, upon such occurrence, be deemed to have resigned from office and a replacement shall be appointed.
(d) Minutes of all meetings shall be recorded and copies shall be maintained by the Division of Professional Regulation. At any hearing where evidence is presented, such hearing shall be recorded and transcribed by the Division. Each party in such a hearing shall be entitled, upon request, to obtain a copy of such transcript at that party' own expense.
(e) The Commission may adopt a seal and may use that seal on all official documents.
35 Del. Laws, c. 63, § 2; Code 1935, § 5474; 41 Del. Laws, c. 218, § 1; 24 Del. C. 1953, § 2903; 57 Del. Laws, c. 151; 63 Del. Laws, c. 463, §§ 6, 7; 70 Del. Laws, c. 186 § 1; 70 Del. Laws, c. 603, § 7; 71 Del. Laws, c. 103, § 1.;
§ 2904. [Reserved.]
§ 2905. Powers and duties of the Commission; Real Estate Appraiser Certification Committee; testing service contract.
(a) The Commission may:
(1) Adopt and revise such rules and regulations not inconsistent with the law as may be necessary to enable it to carry into effect this chapter;
(2) Examine, license and renew the licenses of duly qualified applicants, including applicants for conducting schools of real estate;
(3) Conduct hearings upon charges calling for discipline of a licensee or revocation of a license;
(4) Issue subpoenas and compel the attendance of witnesses and administer oaths to persons giving testimony at hearings;
(5) Cause the prosecution of all persons violating this chapter and incur necessary expenses therefor;
(6) Keep a record of all its proceedings;
(7) Make an annual report to the Governor.
(b) The Division of Professional Regulation shall contract with a nationally recognized testing service for the preparation and grading of a written examination for the licensing of real estate brokers and real estate salespersons.
(c) The Real Estate Commission shall promulgate regulations specifically identifying those crimes which are substantially related to the practice of real estate brokering, real estate sales or real estate appraisal.
35 Del. Laws, c. 63, §§ 2, 13; 37 Del. Laws, c. 44, § 1; Code 1935, § 5485; 24 Del. C. 1953, § 2905; 57 Del. Laws, c. 151; 57 Del. Laws, c. 741, § 28A; 67 Del. Laws, c. 121, §§ 4, 5; 67 Del. Laws, c. 144, § 5; 67 Del. Laws, c. 381, §§ 3, 4; 74 Del. Laws, c. 262, § 55.;
§ 2906. Certificate requirement.
(a) No person, partnership, association or corporation shall act as a real estate broker or real estate salesperson, or advertise or assume to act as such real estate broker or real estate salesperson without being registered and without a certificate of registration issued by the Commission.
(b) No partnership, association or corporation shall be granted a certificate unless every member or officer of such partnership, association or corporation who actively participates in the brokerage business of such partnership, association or corporation holds a certificate as a real estate broker and unless every employee who acts as a salesperson for such person, partnership, association or corporation holds a certificate as a real estate salesperson.
35 Del. Laws, c. 63, § 3; Code 1935, § 5475; 24 Del. C. 1953, § 2906; 67 Del. Laws, c. 121, §§ 6, 23; 67 Del. Laws, c. 381, § 5.;
§ 2907. Qualifications for certificate; application; examination.
(a) An applicant who is applying for a certificate of registration under this chapter shall have the following qualifications:
(1) The applicant shall be competent to transact the business of a real estate broker or real estate salesperson in such manner as to safeguard the interests of the public;
(2) The applicant shall provide such information as may be required on an application form designed and furnished by the Board with the approval of the Division of Professional Regulation. No application form shall require a picture of the applicant; require information relating to citizenship, place of birth or length of state residency; nor require personal references;
(3) The applicant shall be required to pass a uniform national and state examination, as is contractually arranged for, with a nationally recognized independent testing service, by the Director of the Division of Regulation; and
(4) The applicant shall not have been convicted of a crime that is substantially related to the practice of real estate brokering or real estate sales, nor have been professionally penalized, nor convicted for drug addiction nor have been professionally penalized or convicted for fraud. However, after a hearing or review of documentation demonstrating that the applicant meets the specified criteria for a waiver, the Commission, by an affirmative vote of a majority of the quorum, may waive this paragraph (a)(4), if it finds all of the following:
a. More than 5 years have elapsed since the applicant has fully discharged all imposed sentences. As used herein, the term "sentence" includes, but is not limited to, all periods of modification of a sentence, probation, parole or suspension. However, "sentence" does not include fines, restitution or community service, as long as the applicant is in substantial compliance with such fines, restitution and community service.
b. The applicant is capable of practicing as a real estate broker or salesperson in a competent and professional manner.
c. The granting of the waiver will not endanger the public health, safety or welfare.
(b) Where the Commission has found to its satisfaction that an applicant has been intentionally fraudulent or that false information has been intentionally supplied, it shall report its findings to the Attorney General for further action.
(c) Where the application of a person has been refused or rejected and such applicant feels that the Commission has acted without justification; has imposed higher or different standards for that person than for other applicants or registrants; or has in some other manner contributed to or caused the failure of such application, the applicant may appeal to the Superior Court.
(d) Every application for a certificate under this chapter shall be accompanied by the fee prescribed by § 2908 of this title.
35 Del. Laws, c. 63, §§ 5, 6; Code 1935, §§ 5477, 5478; 24 Del. C. 1953, § 2907; 63 Del. Laws, c. 463, § 8; 67 Del. Laws, c. 121, §§ 7, 23; 67 Del. Laws, c. 381, § 6; 70 Del. Laws, c. 186 § 1; 70 Del. Laws, c. 603, § 8; 74 Del. Laws, c. 262, § 56; 75 Del. Laws, c. 436, § 31; 77 Del. Laws, c. 199, §§ 21, 22.;
§ 2908. Fees.
The amount to be charged for each fee imposed under this chapter shall approximate and reasonably reflect all costs necessary to defray the expenses of the Commission, as well as the proportional expenses incurred by the Division of Professional Regulation in its services on behalf of the Commission. There shall be a separate fee charged for each service or activity, but no fee shall be charged for an activity not specified in this chapter. The application fee shall not be combined with any other fee or charge. At the beginning of each calendar year the Division of Professional Regulation, or any other state agency acting in its behalf, shall compute for each separate service or activity, the appropriate fee for the coming year.
35 Del. Laws, c. 63, §§ 6, 13; Code 1935, §§ 5478, 5485; 48 Del. Laws, c. 161, § 1; 24 Del. C. 1953, § 2908; 57 Del. Laws, c. 151; 57 Del. Laws, c. 741, § 28B; 63 Del. Laws, c. 463, § 10; 65 Del. Laws, c. 380, § 4; 67 Del. Laws, c. 121, § 8.;
§ 2909. Nonresident licensure.
(a) A nonresident of this State who is a licensed broker or salesperson in another state may obtain a similar license as a broker or salesperson in this State by complying with this chapter, provided that the nonresident broker or salesperson is regularly engaged in the real estate business in the other state. Such nonresident licensed broker or salesperson need not maintain a place of business within this State. The Commission may license such nonresident broker or salesperson without examination if such person has been duly licensed for a broker's or salesperson's license in another state. Upon receipt of an application for nonresident licensure, the Commission shall contact each board which has previously licensed the applicant, to determine whether or not there are disciplinary proceedings or unresolved complaints pending against the applicant. In the event there is a disciplinary proceeding or unresolved complaint pending, the applicant shall not be licensed until the proceeding or complaint has been resolved.
(b) Every nonresident applicant, prior to being licensed, shall file an irrevocable consent that legal action may be commenced against the applicant in the proper court of any county of this State in which a cause of action may arise or in which the plaintiff may reside, by service of any process or pleading authorized by the laws of this State upon any member of the Commission. In case any processes or pleadings are served upon any member of the Commission, a copy thereof shall be immediately forwarded by certified or registered mail to the main office of the licensee against which process or pleadings are directed.
35 Del. Laws, c. 63, § 11; Code 1935, § 5483; 24 Del. C. 1953, § 2909; 60 Del. Laws, c. 714, § 2; 67 Del. Laws, c. 121, §§ 9, 23; 67 Del. Laws, c. 171, § 1; 67 Del. Laws, c. 381, §§ 11, 12; 70 Del. Laws, c. 186, § 1.;
§ 2910. Issuance of a broker's certificate within a corporation.
Corporations, partnerships and associations shall not be licensed under this chapter, but nothing in this chapter shall prevent a corporation or partnership from acting as a real estate broker provided that every officer of any corporation and every member of any partnership actually negotiating or attempting to negotiate the listing, sale, purchase, rental, exchange or lease of any real estate or of the improvements thereon, or collecting rents or attempting to collect, on behalf of said corporation or partnership, shall be licensed as a broker or salesperson. All officers of any corporation or all members of any partnership, acting as a broker or salesperson, shall be deemed in violation of this chapter unless there be full compliance with these provisions.
35 Del. Laws, c. 63, § 8; Code 1935, § 5480; 24 Del. C. 1953, § 2910; 60 Del. Laws, c. 714, § 3; 67 Del. Laws, c. 121, § 23.;
§ 2911. Renewal of certificates.
(a) On or before the first day of July biennially, each certificate holder shall make application to the Commission for a renewal of certificate and make payment of the fee prescribed in this chapter.
(b) In addition to the other provisions of this section, each Delaware real estate certificate holder applying for renewal shall be required to successfully complete in the 2-year period prior to renewal continuing education hours in an amount to be prescribed by the rules and regulations of the Commission. Each Delaware real estate certificate holder at the time of certificate renewal shall be required to furnish to the Commission satisfactory evidence that they have attended the required number of hours in approved courses, seminars and lectures. The Commission shall publish guidelines as to acceptable courses of instruction, seminars and lectures, and shall keep the guidelines current.
35 Del. Laws, c. 63, § 12; Code 1935, § 5484; 24 Del. C. 1953, § 2911; 63 Del. Laws, c. 463, § 9; 64 Del. Laws, c. 208, § 1; 70 Del. Laws, c. 603, § 9.;
§ 2912. Revocation of certificate; reprimand of licensee; causes.
(a) The Commission may, upon its own motion, and shall upon the verified complaint in writing of any person, provided such complaint, together with evidence documentary or otherwise presented in connection therewith, shall make out a prima facie case, direct all complaints to the investigative staff of the Division of Professional Regulation for the investigation of the actions of any real estate broker or real estate salesperson or any person who shall assume to act in any of such capacities within this State, and may discipline a certificate-holder in accordance with § 2914 of this title at any time where the certificate holder has by false or fraudulent representation obtained a certificate, or where the certificate holder, in performing or attempting to perform any of the acts mentioned herein, is guilty of:
(1) Making any substantial misrepresentation; or
(2) Making any false promise of a character likely to influence, persuade or induce; or
(3) Pursuing a continued and flagrant course of misrepresentation or the making of false promises through agents or salespersons or advertising or otherwise; or
(4) Acting for more than 1 party in a transaction without the knowledge and written consent of all parties for whom the certificate holder acts; or
(5) Failing, within a reasonable time, to account for or to remit any moneys coming into the certificate holder's possession which belong to others; or
(6) Being incompetent to act as a real estate broker or salesperson in such manner as to safeguard the interest of the public; or
(7) Paying a commission or valuable consideration to any person for acts or services performed in violation of this chapter; or
(8) A violation of any of the rules and regulations of the Commission; or
(9) Receiving or making an arrangement or agreement to receive, directly or indirectly, any form of valuable consideration in exchange for the placement of, or favor in, any business transaction, or any business transaction or transactions incidental thereto, negotiated or handled by said broker, salesperson, or appraiser as agent unless, prior to the time of the placement of, or favor in, said business transaction, the broker, salesperson or appraiser shall have fully disclosed in writing to the parties to such business transaction for whom the broker, salesperson or appraiser is acting as agent the existence of such agreement or arrangement. Nothing in this subsection shall be deemed as limiting the right of a broker, salesperson or appraiser to arrange for and receive valuable consideration for the rendition of any real estate related service in connection with any business transaction which is in addition to those services which the broker, salesperson or appraiser is obligated to provide pursuant to the written agency agreement with one or more of the parties to such business transaction, so long as all parties are, as required above, notified in writing of the existence of such agreement or arrangement; or
(10) Violating the Delaware Consumer Fraud Act as found in Chapter 25 of Title 6; or
(11) Misrepresenting the availability of or content of the form of Seller's Disclosure of Condition of Real Property as provided in Chapter 25 of Title 6; or
(12) Any other conduct, whether of the same or a different character from that specified in this section, which constitutes improper, fraudulent or dishonest dealing.
(b) Any unlawful act or violation of this chapter by any real estate salesperson, employee, or partner or associate of a licensed real estate broker shall not be cause for the revocation of a license of any real estate broker, partial or otherwise, unless it appears to the satisfaction of the Commission that such employer, partner or associate had guilty knowledge thereof.
(c) The Commission shall suspend or revoke any certificate issued under this chapter at any time where the certificate holder has been convicted in a court of competent jurisdiction of this or any other state, or a federal court, of the crime of forgery, embezzlement, obtaining money under false pretenses, bribery, larceny, extortion, conspiracy to defraud or any similar offense or has had entered a plea of guilty or nolo contendere to any similar offense.
(d) The Commission may request from the Secretary of State a waiver of the requirement that the investigation be conducted by the Division of Professional Regulation. Granting of this waiver would permit the Commission itself to investigate the particular complaint or complaints.
35 Del. Laws, c. 63, § 9; Code 1935, § 5481; 41 Del. Laws, c. 218, § 2; 24 Del. C. 1953, § 2912; 60 Del. Laws, c. 714, §§ 4, 5; 67 Del. Laws, c. 121, §§ 10-12, 23; 67 Del. Laws, c. 171, § 2; 67 Del. Laws, c. 256, § 1; 67 Del. Laws, c. 381, § 13; 68 Del. Laws, c. 166, § 2; 69 Del. Laws, c. 86, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 103, § 2; 75 Del. Laws, c. 88, § 17(2).;
§ 2913. Notice and hearing upon revocation of certificate or denial of application; powers of Commission.
The Commission shall, before denying an application for certificate or before imposing disciplinary action upon a certificate-holder, set the matter down for a hearing.
At least 10 days prior to the date set for the hearing, the Commission shall notify in writing the applicant or certificate-holder of the charges made, and shall afford such applicant or certificate-holder an opportunity to be heard in person or by counsel in reference thereto.
The written notice may be served by delivery of same personally to the applicant or certificate-holder, or by mailing same by registered mail to the last known business address of such applicant or certificate-holder. If such applicant or certificate-holder be a salesperson, the Commission shall also notify the broker employing the applicant or certificate holder, or in whose employ the applicant or certificate holder is about to enter, by mailing notice by registered mail to the broker's last known business address.
The hearing on the charges shall be at such time and place as the Commission shall prescribe.
The Commission may subpoena and bring before it any person in this State or take testimony of any such person by deposition with the same fees and mileage in the same manner as prescribed by law in judicial procedure in courts of this State in civil cases.
Any party to any hearing before the Commission shall have the right to the attendance of witnesses in the party's behalf at such hearing upon making request therefor to the Commission and designating the person or persons sought to be subpoenaed.
If the Commission determines that any applicant is not qualified to receive a certificate, a certificate shall not be granted to such applicant, and if the Commission determines that any certificate-holder is guilty of a violation of any of the provisions of this chapter, such certificate-holder shall be subject to discipline in accordance with § 2914 of this title.
35 Del. Laws, c. 63, § 10; Code 1935, § 5482; 24 Del. C. 1953, § 2913; 67 Del. Laws, c. 121, § 23; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 103, § 3.;
§ 2914. Remedial actions and disciplinary sanctions.
(a) The Commission may impose any of the following sanctions, partially, singly or in combination, when it finds that 1 of the conditions or violations set forth in § 2912 of this title applies to a certificate-holder regulated under this chapter:
(1) Publicly reprimand;
(2) Issue a public letter of reprimand;
(3) Place a certificate-holder on probationary status and require the certificate-holder to:
a. Report regularly to the Commission upon the matters which are the basis for the probation; and/or
b. Limit all practice and professional activities to those areas prescribed by the Commission; and/or
c. Continue or renew the certificate-holder's professional education until the required degree of skill has been attained in those areas which are the basis of the probation. Documentation of this professional education must be submitted to the Commission;
(4) Impose a civil penalty;
(5) Suspend or revoke any certificate issued under this chapter.
(b) The Commission may withdraw or reduce conditions of probation when it finds that deficiencies requiring such action have been remedied.
(c) Where the Commission has placed a certificate-holder on probationary status under certain restrictions or conditions and the Commission has determined that such restrictions or conditions are being or have been violated by the certificate-holder, it may, after a hearing on the matter, suspend or revoke the certificate-holder's certificate.
(d) No civil penalty imposed by the Commission may exceed $1,000 for each violation of this chapter, nor shall the Commission impose a civil penalty on a certificate-holder where the certificate of such certificate-holder has been revoked by the Commission for such violation. The power and authority of the Commission to impose such civil penalties is not to be affected by any other proceeding, civil or criminal, concerning the same violation, nor shall the imposition of such civil penalty preclude the Commission from imposing other sanctions short of revocation. The certificate of any certificate-holder upon whom a civil penalty has been imposed by the Commission may be suspended by order of the Commission until the civil penalty is paid. The Commission may seek judicial enforcement of civil penalty imposed by the Commission.
(e) The Commission may temporarily suspend a certificate-holder's certificate in advance of a final adjudication or during the appeals process, with 24 hours' written notice to the certificate-holder, but only in cases where there is a clear and immediate danger to the health, safety or welfare of the public if the certificate-holder is allowed to continue to practice. Such suspension may be appealed to the Superior Court.
(f) Where a certificate has been suspended due to the disability of the certificate-holder, the Commission may reinstate such certificate if, after a hearing, the Commission is satisfied that the certificate-holder is able to practice with reasonable skill and safety.
(g) As a condition for reinstatement of a suspended certificate or removal from probationary status, the Commission may impose such disciplinary or corrective measures as are authorized under this chapter.
71 Del. Laws, c. 103, § 5; 70 Del. Laws, c. 186, § 1.;
§ 2915. Appeals to Superior Court.
The findings of fact made by the Commission acting within its powers shall in the absence of fraud, be conclusive, but the Superior Court may review questions of law involved in any final decision or determination of the Commission.
The application shall be made by the aggrieved party within 30 days after the determination by certiorari, mandamus or by any other method permissible under the rules and practices of such Court or the laws of this State.
The Court may make such further orders in respect thereto as justice may require.
35 Del. Laws, c. 63, § 10; Code 1935, § 5482; 24 Del. C. 1953, § 2914; 71 Del. Laws, c. 103, § 4.;
§ 2916. Effect of revocation of broker's certificate.
The revocation of a broker's certificate shall automatically suspend every real estate salesperson's certificate granted to any person by virtue of employment by the broker whose certificate has been revoked, pending a change of employer and the issuance of a new certificate. Such new certificate shall be issued without charge, if granted during the same year in which the original salesperson's certificate was granted.
35 Del. Laws, c. 63, § 8; Code 1935, § 5480; 24 Del. C. 1953, § 2915; 67 Del. Laws, c. 121, § 23; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 103, § 4.;
§ 2917. Annual list of certified real estate brokers and salespersons.
The Commission shall publish annually the names of the duly certified real estate brokers and salespersons.
The report shall be mailed by the Commission to any person in this State upon request.
35 Del. Laws, c. 63, § 13; Code 1935, § 5485; 24 Del. C. 1953, § 2916; 67 Del. Laws, c. 121, §§ 13, 23; 67 Del. Laws, c. 381, § 14; 71 Del. Laws, c. 103, § 4.;
§ 2918. Form and display of certificate.
All certificates shall be issued by the Commission in such form and size as shall be prescribed by the Commission.
The certificates shall show the name and address of the certificate-holder, and shall have imprinted thereon the seal of the Commission.
Each certificate-holder shall conspicously display the certificate in the place of business.
35 Del. Laws, c. 63, § 7; Code 1935, § 5479; 24 Del. C. 1953, § 2917; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 103, § 4.;
§ 2919. Maintenance of place of business.
(a) Each licensed broker who is a resident of this State shall maintain an office within this State. The original license of a broker and of each salesperson under contract to such broker shall be prominently displayed in the broker's office. The address of the office shall be designated in the broker's license, and no license issued under this chapter shall authorize the licensee to transact real estate business at any other location, unless there is an approved branch office.
(b) Each licensed broker shall also maintain a conspicuous sign on the outside of the office of such size and content as the Commission shall deem proper.
(c) If the broker maintains more than 1 place of business within the State, the broker shall apply for and obtain an additional license in the broker's name at each such branch office. Every such application shall state the location of the branch office and the name of the person in charge of it. Each branch office shall be under the direction and supervision of a broker licensed at that address.
35 Del. Laws, c. 63, § 8; Code 1935, § 5480; 24 Del. C. 1953, § 2918; 60 Del. Laws, c. 714, § 6; 67 Del. Laws, c. 121, § 23; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 103, § 4.;
§ 2920. Notice of change in location of business; new certificate.
Notice in writing shall be given to the Commission by each certificate-holder of any change of principal business location, whereupon the Commission shall issue a new certificate for the unexpired period without charge.
The change of business location without notification to the Commission shall automatically cancel the license theretofore issued.
35 Del. Laws, c. 63, § 8; Code 1935, § 5480; 24 Del. C. 1953, § 2919; 71 Del. Laws, c. 103, § 4.;
§ 2921. Notice and procedure on termination of salesperson's employment; new certificate as prerequisite to resumption.
When any real estate salesperson is discharged or terminates employment with the real estate broker by whom the salesperson is employed, such real estate broker shall immediately notify the Commission of such termination.
The real estate broker, at the time of the notification to the Commission, shall address a communication to the last known address of such real estate salesperson, which communication shall advise such real estate salesperson that employment has been terminated. A copy of the communication to the real estate salesperson shall accompany the notification to the Commission.
No such real estate salesperson shall perform any of the acts contemplated by this chapter or engage directly or indirectly in the business of a real estate salesperson until the Commission, in its discretion, shall issue a new certificate showing change of employment and business location.
Upon the payment of a fee of $10 per year or $20 for 2 years, the Commission shall list any real estate salesperson who is discharged or terminates employment with a real estate broker on an inactive list for a period of no more than 2 years. Any real estate salesperson who ceases to be employed with a real estate broker, due to service in the armed forces of the United States, shall not be required to pay the fee stated in this section, nor be placed on an inactive list, nor be required to pay the annual fee stated in § 2908 of this title while serving in the armed forces of the United States. Upon the reemployment of the real estate salesperson by the same or different broker, a new certificate shall issue from the Commission upon the payment of the real estate salesperson's fee.
Notwithstanding the foregoing provisions, the Real Estate Commission shall permit a real estate salesperson who possesses a valid certificate of registration in this State to put that salesperson's certificate of registration on an inactive list for an unlimited amount of time. The real estate salesperson may reactivate that salesperson's certificate of registration, subject to payment of the biennial registration fees, for such time as the certificate has been inactive, upon submission of proof of fulfillment of continuing education requirements for each renewal period.
35 Del. Laws, c. 63, § 8; Code 1935, § 5480; 24 Del. C. 1953, § 2920; 52 Del. Laws, c. 109; 57 Del. Laws, c. 403, §§ 1-3; 63 Del. Laws, c. 154, § 1; 67 Del. Laws, c. 121, § 23; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 603, § 10; 71 Del. Laws, c. 103, § 4.;
§ 2922. Real Estate Guaranty Fund.
(a) The Commission shall establish and maintain a Real Estate Guaranty Fund (hereinafter referred to as the "Fund") from which, subject to this section, any person who obtains a final judgment against a real estate broker or salesperson holding a certificate issued under this chapter for loss or damage sustained by reason of theft or forgery (as defined in Title 11) or by reason of any fraud, misrepresentation or deceit by or on the part of any such real estate broker or salesperson or any employee thereof who does not hold a certificate, may recover, on order of the Commission, compensation in an amount not exceeding in the aggregate the sum of $25,000 in connection with any 1 transaction or claim, regardless of the number of persons aggrieved or parcels of real estate involved in such transaction or claim.
(b) When an aggrieved person commences an action which may result in collection from the Fund, the aggrieved person's attorney shall notify the Commission in writing within 60 days of the commencement of the action. The written notification shall identify the parties to the action, the court in which the action is brought and the date the action was commenced and shall state the relief sought in the action and shall state that the action may result in a claim against the Fund. A copy of the complaint, counterclaim or cross-claim, if any, setting forth the allegations of the action shall be enclosed with such written notification. Upon receiving notice of an action pursuant to this subsection, the Commission shall have the right to enter an appearance, intervene in or defend the action and may appeal from any judgment entered against a real estate broker or salesperson holding a certificate issued under this chapter.
(c) If the aggrieved person obtains a final judgment against a real estate broker or salesperson holding a certificate issued under this chapter for loss or damage sustained by reason of theft or forgery (as defined in Title 11) or by reason of fraud, misrepresentation or deceit by or on the part of such real estate broker or salesperson or employee thereof who does not hold a certificate, such aggrieved person may file a verified claim with the Commission seeking an order directing payment from the Fund of any amount unpaid upon the judgment, subject to the limitations stated in subsection (a) of this section and this subsection. The Commission shall proceed upon such claim in a summary manner and, upon the hearing thereof, the aggrieved person shall be required to show:
(1) That the aggrieved person is not a spouse of the judgment debtor or the personal representative of said spouse;
(2) That the aggrieved person has complied with all the requirements of this section;
(3) That the aggrieved person has obtained a final judgment as set out in this subsection, stating the amount thereof and the amount owing thereon at the date of the filing of the aggrieved person's verified claim; and
(4) That the aggrieved person has fully pursued and exhausted all available remedies and taken all reasonable steps to collect the amount of the judgment, stating the total amount collected.
If the Commission is satisfied that the aggrieved person has satisfied all the requirements of this section and is entitled to recover compensation from the Fund, it shall enter an order requiring payment from the Fund of whatever sum it shall find to be payable upon the claim, subject to the limitations of subsection (a) of this section. The Commission, in its discretion, may authorize payment of an amount from the Fund less than the claim made pursuant to this subsection.
(d) If the Commission pays from the Fund any amount in settlement of a claim or toward satisfaction of a judgment against a real estate broker or salesperson holding a certificate issued under this chapter, the certificate of such broker or salesperson may be suspended or revoked by the Commission and, in the discretion of the Commission, such broker or salesperson shall be ineligible to receive a new certificate until the broker or salesperson has repaid in full, plus interest at the legal rate, the amount paid from the Fund on the person's account. A discharge in bankruptcy shall not relieve a person from the penalties and disabilities provided in this subsection.
(e) If at any time the money on deposit in the Fund is insufficient to satisfy any duly authorized claim or portion thereof, the Commission shall, when sufficient money has been deposited in the Fund, satisfy such unpaid claims or portions thereof in the order that such claims or portions thereof were originally filed pursuant to subsection (d) of this section, plus accumulated interest at the legal rate.
(f) Any person filing with the Commission any notice, statement or other document required under subsection (b) or (d) of this section which is false or untrue or contains any material misstatement of fact shall be fined not less than $300 nor more than $3,000.
(g) When, upon the order of the Commission or pursuant to a compromise, the Commission has caused to be paid from the Fund any sum to a judgment creditor, the Commission shall be subrogated to all of the rights of the judgment creditor up to the amount paid and the judgment creditor shall assign all of that judgment creditor's right, title and interest in the judgment up to such amount paid to the Commission, and any sums recovered by the Commission on the judgment shall be deposited to the Fund.
(h) Each real estate broker and real estate salesperson entitled to renew that broker's or salesperson's certificate on or after July 1, 1975, shall, when so renewing that broker's or salesperson's certificate on or after July 1, 1975, pay in addition to the appropriate renewal fee a further fee of $25 which shall be credited to the Fund and any person who receives a real estate broker's or real estate salesperson's certificate for the first time after July 1, 1975, shall pay said additional fee of $25 in addition to all other fees payable; provided, that in no case shall any real estate broker or salesperson be required to pay said fee of $25 more than once, unless assessed as provided in subsection (j) of this section.
(i) The Commission shall, at all times after December 31, 1997, maintain the Fund at a level in excess of $250,000, and to this intent all moneys received pursuant to subsection (h) of this section shall be credited to said Fund and held in a special account other than the General Fund prescribed by § 6102(a) of Title 29. Said account shall be an interest-bearing account and the interest accruing from the funds on deposit in the account shall be credited to the Commission to defray the costs of administering the Fund; for seminars within the State and for continuing education for licensees within the State; and to reimburse Commissioners, their administrative staff and legal counsel for expenses paid to attend meetings of the National Association of Real Estate License Law Officials.
(j) If the balance of the Fund should fall below the $250,000 level, the Commission shall, at the next certificate renewal date, assess each real estate broker and real estate salesperson a pro rata fee in such amount that the Fund will be returned to the $250,000 level.
(k) Any person aggrieved by any action, decision, order or regulation of the Commission may appeal to the Superior Court in the manner prescribed by this chapter.
(l) Upon receipt of a written complaint filed against a certificate holder pursuant to this chapter, the Commission shall inform the complainant or complainants that a Real Estate Guaranty Fund is available and of the steps necessary to comply with the provisions of this section to recover compensation from the Fund.
60 Del. Laws, c. 259, § 1; 63 Del. Laws, c. 82, § 1; 65 Del. Laws, c. 274, § 1; 67 Del. Laws, c. 121, §§ 14-20, 23; 67 Del. Laws, c. 381, § 15; 68 Del. Laws, c. 139, § 1; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 603, §§ 11-13; 71 Del. Laws, c. 103, §§ 4, 6.;
§ 2923. Deposits and trust fund accounts; accounting; records inspection and audit.
(a) All deposits accepted by every person, partnership, corporation or association holding a real estate broker's license under this chapter, which deposits are retained by such real estate broker pending consummation or termination of the transaction involved, shall be accounted for in the full amount thereof at the time of the consummation or termination.
(b) Every real estate salesperson promptly, on receipt of a deposit on any transaction in which the salesperson is engaged on behalf of a broker-employer, shall pay over the deposit to the real estate broker.
(c) Every real estate broker shall deposit in an escrow account or accounts in a banking institution all earnest money deposits, rental money and other moneys held by the broker as a real estate broker in which the broker's clients or other persons with whom the broker is dealing have an interest, unless specifically otherwise agreed upon in writing between a broker and a client. The broker shall maintain, at the broker's usual place of business, books, records, contracts and other necessary documents to determine the adequacy of the escrow account or accounts. These accounts and records shall be opened to inspection by the Commission and its duly authorized agents at the broker's usual place of business during regular business hours.
24 Del. C. 1953, § 2920B; 57 Del. Laws, c. 151; 67 Del. Laws, c. 121, § 23; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 103, § 4.;
§ 2924. State license.
No license shall be granted by the Department of Finance to any person to engage in the business of a real estate broker unless and until the applicant presents to the Department of Finance from which such license is requested a certificate from the Commission showing compliance with the requirements of this chapter.
No certificate shall be issued to any real estate salesperson until the regular license fees or taxes shall have been paid by the broker by whom such salesperson is employed.
Nothing contained in this section shall eliminate or change in any manner real estate broker's licenses, fees or taxes as prescribed by the laws of this State or the ordinances of the cities and towns of this State.
35 Del. Laws, c. 63, § 14; 37 Del. Laws, c. 82, § 1; Code 1935, § 5486; 24 Del. C. 1953, § 2921; 57 Del. Laws, c. 740, § 14; 67 Del. Laws, c. 121, § 23; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 103, § 4.;
§ 2925. Taxation by cities and villages unaffected.
Nothing in this chapter shall affect the power of cities and villages to tax and license real estate brokers. The requirements of this chapter shall be in addition to the requirements of any existing or future ordinance of any city or village of taxing or licensing real estate brokers.
35 Del. Laws, c. 63, § 19; Code 1935, § 5490; 24 Del. C. 1953, § 2922; 71 Del. Laws, c. 103, § 4.;
§ 2926. Penalties; enforcement.
(a) Whoever, being a natural person, violates this chapter; or whoever, being an agent or officer of a corporation or member or agent of a copartnership or association, personally participates or is an accessory to any violation of this chapter; shall be fined not less than $200 nor more than $1,000, or imprisoned not more than 6 months, or both.
(b) Any corporation that violates this chapter shall be fined not less than $200 nor more than $1,000.
(c) The Commission shall report all violations of this chapter to the Attorney General of this State.
(d) All fines or penalties shall inure to this State.
35 Del. Laws, c. 63, § 15; Code 1935, § 5487; 24 Del. C. 1953, § 2923; 57 Del. Laws, c. 151; 71 Del. Laws, c. 103, § 4.;
§ 2927. Enforcement.
The Commission may report a defendant for violation of this chapter before any court of competent jurisdiction and it may take the necessary legal steps for the proper legal officers of this State to enforce this chapter and collect the penalties provided in this chapter.
35 Del. Laws, c. 63, § 16; Code 1935, § 5488; 24 Del. C. 1953, § 2924; 57 Del. Laws, c. 151; 71 Del. Laws, c. 103, § 4.;
§ 2928. Revenue and expenses of Commission.
(a) All fees and other money received by the Commission shall be paid over to the State Treasurer, in accordance with Chapter 61 of Title 29.
(b) Expenses of the Commission, within the limits of appropriations made to it, shall be paid by the State Treasurer upon warrants signed by the proper officers of the Commission.
24 Del. C. 1953, § 2925; 57 Del. Laws, c. 151; 71 Del. Laws, c. 103, § 4.;
§ 2929. Objectives of Commission.
The primary objective of the Real Estate Commission, to which all other objectives and purposes are secondary, is to protect the general public, especially those persons who are direct recipients of services regulated by this chapter from unsafe practices, and from occupational practices which tend to reduce competition or fix the price of services rendered. The secondary objectives of the Commission are to maintain and establish minimum standards of licensee competency, and establish and maintain certain standards in the delivery of services to the public.
63 Del. Laws, c. 463, § 5; 71 Del. Laws, c. 103, § 4.;
§ 2929A. Agency disclosure.
Transferred.
§ 2930. Certain psychological impacts not material facts.
(a) As used in this section, "transferee" includes, but shall not be limited to, a buyer, purchaser, grantee, lessee, tenant or one making an exchange of any estate or interest in real property.
(b) As used in this section, the terms "psychologically impacted" and "psychological impacts" mean:
(1) That the property was, or was at any time suspected to have been the site of a homicide, suicide or other felony except arson.
(2) That an occupant of real property is or was at any time suspected to be infected or has been infected with Human Immuno-deficiency Virus or diagnosed with Acquired Immune Deficiency Syndrome (AIDS), or any other disease which has been determined by medical evidence to be highly unlikely to be transmitted through the occupancy of a dwelling place.
(c) As used in this section, "agent" means any person licensed as a broker, salesperson or appraiser pursuant to this chapter.
(d) The fact or suspicion that a property might be or is psychologically impacted is not a material fact that must be disclosed in a real property transaction.
(e) No cause of action shall arise against an owner or appraiser of real property or the agent of such an owner or the agent of a transferee of real property for failure to inquire about, make a disclosure about or release information about the fact or suspicion that such property is psychologically impacted.
(f) If a potential transferee makes a specific written request to the owner or agent about the psychological impacts defined above in subsection (b)(1) of this section regarding a specific property, the owner or agent shall answer the transferee's questions truthfully, to the best of such owner's or agent's knowledge. The agent shall have no duty to inquire about the psychological impacts defined above in subsection (b)(1) of this section regarding a specific property unless a transferee, in writing, specifically requests the agent to ask the owner for such information.
(g) The agent shall not make any disclosure concerning those psychological impacts defined above in subsection (b)(2) of this section even if a buyer specifically asks about such psychological impacts.
68 Del. Laws, c. 154, § 1; 71 Del. Laws, c. 103, § 4.;
§ 2931. Agency disclosure.
(a) All licensees in a common law agency relationship must disclose, in writing, whom they represent. This disclosure shall be made to all parties to a transaction who the licensee does not represent but with whom the licensee has substantive contact, such as prospective sellers, lessors, buyers and lessees.
(b) This disclosure referenced in subsection (a) of this section shall be made at the 1st substantive contact between the licensee and the person the licensee does not represent. A listing broker who is not also the selling agent and who has no substantive contact with the prospective buyer or lessee, need not make any agency disclosure to the prospective buyer or lessee.
(c) The Commission may adopt rules and regulations to prescribe the form of disclosure to be used by licensees or minimum criteria for the form of disclosure.
(d) Licensees shall not function in the capacity of a common law agent for transactions concerning 1 to 4 family residential property unless they have established that relationship in writing and the company policy of the brokerage organization is to represent only the seller or buyer as a single agent for each transaction and never as a dual agent.
68 Del. Laws, c. 166, § 1; 71 Del. Laws, c. 103, § 4; 75 Del. Laws, c. 277, §§ 1, 2.;