Full Text of HB5071 96th General Assembly
HB5071 96TH GENERAL ASSEMBLY
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96TH GENERAL ASSEMBLY
State of Illinois
2009 and 2010 HB5071
Introduced 1/29/2010, by Rep. William B. Black SYNOPSIS AS INTRODUCED: |
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Amends the Real Estate License Act of 2000. Deletes the definition of "regular employee". Effective immediately.
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A BILL FOR
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HB5071 |
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LRB096 19771 ASK 35208 b |
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| AN ACT concerning professional regulation.
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| Be it enacted by the People of the State of Illinois,
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| represented in the General Assembly:
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| Section 5. The Real Estate License Act of 2000 is amended | 5 |
| by changing Section 1-10 as follows:
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| (225 ILCS 454/1-10)
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| (Section scheduled to be repealed on January 1, 2020)
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| Sec. 1-10. Definitions. In this Act, unless the context | 9 |
| otherwise requires:
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| "Act" means the Real Estate License Act of 2000.
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| "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.
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| "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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HB5071 |
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LRB096 19771 ASK 35208 b |
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| "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.
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| "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
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| business name in the case of a franchise shall include the | 10 |
| franchise
affiliation as well as the name of the individual | 11 |
| firm.
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| "Board" means the Real Estate Administration and | 13 |
| Disciplinary Board of the Department as created by Section | 14 |
| 25-10 of this Act.
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| "Branch office" means a sponsoring broker's office other | 16 |
| than the sponsoring
broker's principal office.
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| "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
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| directly or indirectly:
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| (1) Sells, exchanges, purchases, rents, or leases real | 25 |
| estate.
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| (2) Offers to sell, exchange, purchase, rent, or lease |
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HB5071 |
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LRB096 19771 ASK 35208 b |
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| real estate.
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| (3) Negotiates, offers, attempts, or agrees to | 3 |
| negotiate the sale,
exchange, purchase, rental, or leasing | 4 |
| of real estate.
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| (4) Lists, offers, attempts, or agrees to list real | 6 |
| estate for sale,
lease, or exchange.
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| (5) Buys, sells, offers to buy or sell, or otherwise | 8 |
| deals in options on
real estate or improvements thereon.
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| (6) Supervises the collection, offer, attempt, or | 10 |
| agreement
to collect rent for the use of real estate.
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| (7) Advertises or represents himself or herself as | 12 |
| being engaged in the
business of buying, selling, | 13 |
| exchanging, renting, or leasing real estate.
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| (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.
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| (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.
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| (10) Opens real estate to the public for marketing | 21 |
| purposes.
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| (11) Sells, leases, or offers for sale or lease real | 23 |
| estate at
auction.
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| "Brokerage agreement" means a written or oral agreement | 25 |
| between a sponsoring
broker and a consumer for licensed | 26 |
| activities to be provided to a consumer in
return for |
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LRB096 19771 ASK 35208 b |
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| compensation or the right to receive compensation from another.
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| Brokerage agreements may constitute either a bilateral or a | 3 |
| unilateral
agreement between the broker and the broker's client | 4 |
| depending upon the content
of the brokerage agreement. All | 5 |
| exclusive brokerage agreements shall be in
writing.
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| "Client" means a person who is being represented by a | 7 |
| licensee.
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| "Compensation" means the valuable consideration given by | 9 |
| one person or entity
to another person or entity in exchange | 10 |
| for the performance of some activity or
service. Compensation | 11 |
| shall include the transfer of valuable consideration,
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| including without limitation the following:
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| (1) commissions;
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| (2) referral fees;
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| (3) bonuses;
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| (4) prizes;
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| (5) merchandise;
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| (6) finder fees;
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| (7) performance of services;
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| (8) coupons or gift certificates;
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| (9) discounts;
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| (10) rebates;
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| (11) a chance to win a raffle, drawing, lottery, or | 24 |
| similar game of chance
not prohibited by any other law or | 25 |
| statute;
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| (12) retainer fee; or
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LRB096 19771 ASK 35208 b |
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| (13) salary.
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| "Confidential information" means information obtained by a | 3 |
| licensee from a
client during the term of a brokerage agreement | 4 |
| that (i) was made confidential
by the written request or | 5 |
| written instruction of the client, (ii) deals with
the | 6 |
| negotiating position of the client, or (iii) is information the | 7 |
| disclosure
of which could materially harm the negotiating | 8 |
| position of the client, unless
at any time:
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| (1) the client permits the disclosure of information | 10 |
| given by that client
by word or conduct;
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| (2) the disclosure is required by law; or
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| (3) the information becomes public from a source other | 13 |
| than the licensee.
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| "Confidential information" shall not be considered to | 15 |
| include material
information about the physical condition of | 16 |
| the property.
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| "Consumer" means a person or entity seeking or receiving | 18 |
| licensed
activities.
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| "Continuing education school" means any person licensed by | 20 |
| the Department as a school
for continuing education in | 21 |
| accordance with Section 30-15 of this Act. | 22 |
| "Coordinator" means the Coordinator of Real Estate created | 23 |
| in Section 25-15 of this Act.
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| "Credit hour" means 50 minutes of classroom instruction in | 25 |
| course work that
meets the requirements set forth in rules | 26 |
| adopted by the Department.
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LRB096 19771 ASK 35208 b |
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| "Customer" means a consumer who is not being represented by | 2 |
| the licensee but
for whom the licensee is performing | 3 |
| ministerial acts.
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| "Department" means the Department of Financial and | 5 |
| Professional Regulation. | 6 |
| "Designated agency" means a contractual relationship | 7 |
| between a sponsoring
broker and a client under Section 15-50 of | 8 |
| this Act in which one or more
licensees associated with or | 9 |
| employed by the broker are designated as agent of
the client.
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| "Designated agent" means a sponsored licensee named by a | 11 |
| sponsoring broker as
the legal agent of a client, as provided | 12 |
| for in Section 15-50 of this Act.
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| "Dual agency" means an agency relationship in which a | 14 |
| licensee is
representing both buyer and seller or both landlord | 15 |
| and tenant in the same
transaction. When the agency | 16 |
| relationship is a designated agency, the
question of whether | 17 |
| there is a dual agency shall be determined by the agency
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| relationships of the designated agent of the parties and not of | 19 |
| the sponsoring
broker.
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| "Employee" or other derivative of the word "employee", when | 21 |
| used to refer to,
describe, or delineate the relationship | 22 |
| between a real estate broker and a real
estate salesperson, | 23 |
| another real estate broker, or a leasing agent, shall be
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| construed to include an independent contractor relationship, | 25 |
| provided that a
written agreement exists that clearly | 26 |
| establishes and states the relationship.
All responsibilities |
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LRB096 19771 ASK 35208 b |
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| of a broker shall remain.
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| "Escrow moneys" means all moneys, promissory notes or any | 3 |
| other type or
manner of legal tender or financial consideration | 4 |
| deposited with any person for
the benefit of the parties to the | 5 |
| transaction. A transaction exists once an
agreement has been | 6 |
| reached and an accepted real estate contract signed or lease
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| agreed to by the parties. Escrow moneys includes without | 8 |
| limitation earnest
moneys and security deposits, except those | 9 |
| security deposits in which the
person holding the security | 10 |
| deposit is also the sole owner of the property
being leased and | 11 |
| for which the security deposit is being held.
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| "Exclusive brokerage agreement" means a written brokerage | 13 |
| agreement that provides that the sponsoring broker has the sole | 14 |
| right, through one or more sponsored licensees, to act as the | 15 |
| exclusive designated agent or representative of the client and | 16 |
| that meets the requirements of Section 15-75 of this Act.
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| "Inoperative" means a status of licensure where the | 18 |
| licensee holds a current
license under this Act, but the | 19 |
| licensee is prohibited from engaging in
licensed activities | 20 |
| because the licensee is unsponsored or the license of the
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| sponsoring broker with whom the licensee is associated or by | 22 |
| whom he or she is
employed is currently expired, revoked, | 23 |
| suspended, or otherwise rendered
invalid under this Act.
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| "Leads" means the name or names of a potential buyer, | 25 |
| seller, lessor, lessee, or client of a licensee. | 26 |
| "Leasing Agent" means a person who is employed by a real |
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HB5071 |
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LRB096 19771 ASK 35208 b |
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| estate broker to
engage in licensed activities limited to | 2 |
| leasing residential real estate who
has obtained a license as | 3 |
| provided for in Section 5-5 of this Act.
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| "License" means the document issued by the Department | 5 |
| certifying that the person named
thereon has fulfilled all | 6 |
| requirements prerequisite to licensure under this
Act.
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| "Licensed activities" means those activities listed in the | 8 |
| definition of
"broker" under this Section.
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| "Licensee" means any person, as defined in this Section, | 10 |
| who holds a
valid unexpired license as a real estate broker, | 11 |
| real estate salesperson, or
leasing agent.
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| "Listing presentation" means a communication between a | 13 |
| real estate broker or
salesperson and a consumer in which the | 14 |
| licensee is attempting to secure a
brokerage agreement with the | 15 |
| consumer to market the consumer's real estate for
sale or | 16 |
| lease.
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| "Managing broker" means a broker who has supervisory | 18 |
| responsibilities for
licensees in one or, in the case of a | 19 |
| multi-office company, more than one
office and who has been | 20 |
| appointed as such by the sponsoring broker.
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| "Medium of advertising" means any method of communication | 22 |
| intended to
influence the general public to use or purchase a | 23 |
| particular good or service or
real estate.
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| "Ministerial acts" means those acts that a licensee may | 25 |
| perform for a
consumer that are informative or clerical in | 26 |
| nature and do not rise to the
level of active representation on |
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HB5071 |
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LRB096 19771 ASK 35208 b |
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| behalf of a consumer. Examples of these acts
include without | 2 |
| limitation (i) responding to phone inquiries by consumers as to
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| the availability and pricing of brokerage services, (ii) | 4 |
| responding to phone
inquiries from a consumer concerning the | 5 |
| price or location of property, (iii)
attending an open house | 6 |
| and responding to questions about the property from a
consumer, | 7 |
| (iv) setting an appointment to view property, (v) responding to
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| questions of consumers walking into a licensee's office | 9 |
| concerning brokerage
services offered or particular | 10 |
| properties, (vi) accompanying an appraiser,
inspector, | 11 |
| contractor, or similar third party on a visit to a property, | 12 |
| (vii)
describing a property or the property's condition in | 13 |
| response to a consumer's
inquiry, (viii) completing business or | 14 |
| factual information for a consumer on an
offer or contract to | 15 |
| purchase on behalf of a client, (ix) showing a client
through a | 16 |
| property being sold by an owner on his or her own behalf, or | 17 |
| (x)
referral to another broker or service provider.
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| "Office" means a real estate broker's place of business | 19 |
| where the general
public is invited to transact business and | 20 |
| where records may be maintained and
licenses displayed, whether | 21 |
| or not it is the broker's principal place of
business.
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| "Person" means and includes individuals, entities, | 23 |
| corporations, limited
liability companies, registered limited | 24 |
| liability partnerships, and
partnerships, foreign or domestic, | 25 |
| except that when the context otherwise
requires, the term may | 26 |
| refer to a single individual or other described entity.
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LRB096 19771 ASK 35208 b |
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| "Personal assistant" means a licensed or unlicensed person | 2 |
| who has been hired
for the purpose of aiding or assisting a | 3 |
| sponsored licensee in the performance
of the sponsored | 4 |
| licensee's job.
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| "Pocket card" means the card issued by the Department to | 6 |
| signify that the person named
on the card is currently licensed | 7 |
| under this Act.
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| "Pre-license school" means a school licensed by the | 9 |
| Department offering courses in
subjects related to real estate | 10 |
| transactions, including the subjects upon
which an applicant is | 11 |
| examined in determining fitness to receive a license.
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| "Pre-renewal period" means the period between the date of | 13 |
| issue of a
currently valid license and the license's expiration | 14 |
| date.
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| "Proctor" means any person, including, but not limited to, | 16 |
| an instructor, who has a written agreement to administer | 17 |
| examinations fairly and impartially with a licensed | 18 |
| pre-license school or a licensed continuing education school. | 19 |
| "Real estate" means and includes leaseholds as well as any | 20 |
| other interest or
estate in land, whether corporeal, | 21 |
| incorporeal, freehold, or non-freehold,
including timeshare | 22 |
| interests, and whether the real estate is situated in this
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| State or elsewhere.
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| "Regular employee" means a person working an average of 20 | 25 |
| hours per week for a person or entity who would be considered | 26 |
| as an employee under the Internal Revenue Service eleven main |
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LRB096 19771 ASK 35208 b |
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| tests in three categories being behavioral control, financial | 2 |
| control and the type of relationship of the parties, formerly | 3 |
| the twenty factor test.
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| "Salesperson" means any individual, other than a real | 5 |
| estate broker or
leasing agent, who is employed by a real | 6 |
| estate broker or is associated by
written agreement with a real | 7 |
| estate broker as an independent contractor and
participates in | 8 |
| any activity described in the definition of "broker" under this
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| Section.
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| "Secretary" means the Secretary of the Department of | 11 |
| Financial and Professional Regulation, or a person authorized | 12 |
| by the Secretary to act in the Secretary's stead. | 13 |
| "Sponsoring broker" means the broker who has issued a | 14 |
| sponsor card to a
licensed salesperson, another licensed | 15 |
| broker, or a leasing agent.
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| "Sponsor card" means the temporary permit issued by the | 17 |
| sponsoring real
estate broker certifying that the real estate | 18 |
| broker, real estate salesperson,
or leasing agent named thereon | 19 |
| is employed by or associated by written
agreement with the | 20 |
| sponsoring real estate broker, as provided for in Section
5-40 | 21 |
| of this Act.
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| (Source: P.A. 96-856, eff. 12-31-09.)
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| Section 99. Effective date. This Act takes effect upon | 24 |
| becoming law.
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