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09.11 - Maryland Real Estate Commission - Proposed Regulations

PROPOSED ACTION ON REGULATIONS
MARYLAND REGISTER, VOLUME 44, ISSUE 2,
FRIDAY, JANUARY 20, 2017

Title 09 DEPARTMENT OF LABOR, LICENSING, AND REGULATION

Subtitle 11 REAL ESTATE COMMISSION

Notice of Proposed Action
[17-031-P]

The Real Estate Commission proposes to:
(1) Amend Regulation .01 under COMAR 09.11.02 Code of Ethics;
(2) Repeal Regulation .04 under COMAR 09.11.03 Hearing Regulations;
(3) Amend Regulations .01—.03 under COMAR 09.11.04 Time Share Registrations;
(4) Amend Regulations .01, .03, .05, and .08—.10 under COMAR 09.11.06 Continuing Education;
(5) Amend Regulation .02 under COMAR 09.11.07 Residential Property Disclosure/Disclaimer Statement; and
(6) Amend Regulation .01 under COMAR 09.11.08 Agency Relationship Disclosure/Dual Agency Consent.
This action was considered at a public meeting held on July 20, 2016, notice of which was given by posting notice on the agency website, pursuant to General Provisions Article, §3-302(c), Annotated Code of Maryland.

Statement of Purpose

The purpose of this action is to amend certain regulations which are inconsistent with or duplicative of current statutes; make corrections to outdated or invalid terminology, references, and typographical errors; amend certain regulations which do not accurately reflect current Commission policy; and amend regulations pertaining to course content and credit for continuing education (CE) to expand the potential CE courses available to licensees.

Comparison to Federal Standards

There is no corresponding federal standard to this proposed action.

Estimate of Economic Impact

The proposed action has no economic impact.

Economic Impact on Small Businesses

The proposed action has minimal or no economic impact on small businesses.

Impact on Individuals with Disabilities

The proposed action has no impact on individuals with disabilities.

Opportunity for Public Comment

Comments may be sent to Kathie Connelly, Executive Director, Real Estate Commission, 500 North Calvert Street, or call 410-230-6227, or email to kathie.connelly@maryland.gov, or fax to 410-333-0023. Comments will be accepted through March 6, 2017. A public hearing has not been scheduled.

09.11.02 Code of Ethics

Authority: Business Occupations and Professions Article, §§17-207 and 17-208, Annotated Code of Maryland

.01 Relations to the Public.
  A. — I. (text unchanged)
  [J. If the licensee offers the name of a service provider, including, but not limited to, a mortgage lender or mortgage broker, a real estate appraiser, a home inspector, a home improvement contractor, a plumber, an electrician, or a heating/ventilation/air conditioning/cooling (HVAC) contractor, in the provision of real estate brokerage services, the licensee shall first verify that the provider’s State license to perform those services is current. The licensee shall also give the person the electronic link to the licensing record information as well as the date on which the licensee last verified the information, so that the person may verify continued license status before entering into a contract with the provider.]

09.11.04 Time Share Registrations

Authority: Business Occupations and Professions Article, [§16-208] §17-208, Annotated Code of Maryland

.01 Application for Registration.
  A. — D. (text unchanged)
  E. Denial of an application on other than technical grounds will be communicated to the applicant by at least first class mail at the address stated on the application. The denial notice will inform the applicant that the applicant may file a written request for a hearing on the denial before a Hearing Panel of the Commission. [If a hearing is requested, the applicant shall be notified in writing of the time, date, and place of the hearing, which will be mailed so as to give the applicant 10 days’ notice.
  F. At all stages of the proceeding, the burden of affirmatively showing that the standards and requirements established by statute or by regulation have been met or complied with shall rest on the applicant. Parties to the proceeding will be the applicant and the Commission. Other persons may not participate in the proceeding except that the Commission may, in its discretion, allow any person to file a written statement or memorandum addressing the issues.
  G. If the applicant does not appear for a hearing after notice as provided in these regulations, and without a postponement, then the applicant has not met the burden established in § F of this regulation.
  H. Order of Proceeding at Hearing. The manner and order of proceeding at the hearing is as follows:
    (1) The Assistant Attorney General assigned to the Commission for the purpose will introduce the case stating its present posture including evidence to support the denial of the application.
    (2) The applicant will then proceed to present to the Commission any matters which the applicant deems relevant to the issue of registration.
    (3) After the applicant has presented relevant matters to the Commission, the Commission may ask for a response by way of argument, testimony, or exhibits by the Assistant Attorney General.
    (4) After the response, if any, the applicant may be allowed a rebuttal addressed to those matters raised in the Assistant Attorney General’s response.
    (5) The testimony and evidence will then be deemed closed and the Panel may, in its discretion, accept or request closing comments in the same order as the evidence, or instead of comments, or in addition to comments, may accept or request written memoranda or statements.
    (6) If the parties agree, the case may proceed on a statement of facts. In that event, the Commission may call for the production of evidence or testimony to clarify the issues.]

.02 Rules of Procedure for Revocation or Suspension of Registration.
[The regulations of the Commission governing rules of procedure for revocation or suspension of licenses contained in COMAR 09.01.03.03 shall apply to registration] All hearings regarding denials of applications or revocations or suspensions of registration of time share developers are governed by COMAR 09.01.02.

.03 Records of Transactions.
  A. (text unchanged)
  B. Purchase Money.
    (1) (text unchanged)
    (2) The penalty of bond shall reflect the amount of purchase money held by the developer, [his] the developer’s agents, employees, licensed real estate brokers or independent contractors engaged by the developer resulting from the sale of time share estates in Maryland.
    (3) The developer shall make available to the Commission, upon its request, all records concerning the amount of purchase money held by the developer, [his] the developer’s agents, employees, or independent contractors.
    (4) (text unchanged)
  C. — D. (text unchanged)

09.11.06 Continuing Education

Authority: Business Occupations and Professions Article, §§17-208 and 17-315, Annotated Code of Maryland

.01 Definitions.
  A. (text unchanged)
  B. Terms Defined.
    (1) — (8) (text unchanged)
    (9) Distance Learning Instruction.
      (a) (text unchanged)
      (b) Distance learning methods include:
        (i) The specific delivery systems listed in Business Occupations and Professions Article, §17-315, Annotated Code of Maryland; and [Remote access satellite;
        (ii) Closed circuit video;
        (iii) Computer;
        (iv) Disk;
        (v) CD-ROM;
        (vi) Internet;
        (vii) World Wide Web;
        (viii) Correspondence/home study;
        (ix) Audiotape;
        (x) Videotape; and
        (xi)]
        (xi) Any other delivery system approved by the Commission.
(10) (text unchanged)

.03 Course Providers.
  A. — D. (text unchanged)
  E. All payments for courses shall be made directly to the approved course provider or to the course provider’s third party payment processor.
  [F. All course completion certificates shall be approved and issued, in the name of the attendee, by the course provider.]
  [G.] F. — [I.] H. (text unchanged)
  [J.] I. The following situations could form the basis on which course provider approval is denied, suspended, or withdrawn:
    (1) — (7) (text unchanged)
     (8) Submission of inaccurate course completion information to the Commission;
    [(8)] (9) (text unchanged)
    (10) Submission of course completion information to the Commission for licensees who were not entitled to obtain credits;
    [(9)] (11) — [(11)] (13) (text unchanged)

.05 Course Content.
  A. The Commission may approve a continuing education course that meets all of the following [six] five criteria:
    (1) — (2) (text unchanged)
    [(3) The course is related to the activities for which a licensee has responsibility under the Real Estate Brokers Act;]
    [(4)] (3) — [(6)] (5) (text unchanged)
  B. (text unchanged)

.08 Conduct of Courses.
  A. — F. (text unchanged)
  G. Certificate of Completion.
    [(1) A certificate of completion shall include:
      (a) The full name of the student;
      (b) The approved course provider’s name and address, and the course approval number;
      (c) The title of the course as approved by the Commission, the approved topic letter, and the number of clock hours for which it was approved;
      (d) The date of completion; and
      (e) An official signature or seal.
    (2) A certificate of completion shall be issued by the course provider to each student who has met all the requirements for completion of the course and is entitled to receive the certificate.
    (3)] (1) [The] A certificate of completion [may] shall be distributed by the instructor at the end of the class, or mailed or electronically transmitted to the student at a later date.
    [(4)] (2) A course provider or instructor may not [issue]:
      [(a) A blank certificate of completion to a student; or
      (b) A] (a) Issue a certificate of completion to a student who has not complied with all regulations governing the conduct of the course, including the timeliness and attendance requirements[.]; or
      (b) Submit course completion information to the Commission for a student who has not complied with all regulations governing the conduct of the course, including the timeliness and attendance requirements.
    [(5) A licensee who completes an approved continuing education course to qualify for license renewal shall submit the certificate of completion to the Commission on request.]
  H. (text unchanged)

.09 Licensee Credit Hours.
  A. — B. (text unchanged)
  [C. Technology. A licensee may only use continuing education credits that total 3 clock hours on the topic of technology relating to real estate brokerage services toward license renewal during a 2-year licensing period.]
  [D.] C. Licenses Originating in Other Jurisdictions.
    (1) (text unchanged)
    (2) A licensee may receive credit for an elective course taken in a jurisdiction where the licensee holds a license if that course was approved for continuing education credit by the real estate licensing authority in that jurisdiction[, and the course meets the requirements of Maryland law and regulation].
    (3) — (4) (text unchanged)
  [E.] D. — [H.] G. (text unchanged)

.10 Distance Learning.
  A. — D. (text unchanged)
E. Student Affirmation.
    (1) The course provider shall be responsible for obtaining from students who have completed a distance learning course the following affirmation: “I (name of student) affirm that I have personally completed every requirement of the course and that I have not provided any aspect of the course to others.”
    (2) The course provider may obtain the affirmation described in §E(1) of this regulation by electronic means.
  [F. Notwithstanding Regulation .03E of this chapter, payment for a distance learning course may be made to the course developer.]

09.11.07 Residential Property Disclosure/Disclaimer Statement

Authority: Business Occupations and Professions Article, §17-208; Real Property Article, §10-702; Annotated Code of Maryland

.02 Guidelines.
  A. A licensed broker, associate broker, or salesperson acting as a [listing agent for a seller] seller’s agent should obtain a written residential property condition disclosure statement or a written residential property disclaimer statement at the time the licensed broker, associate broker, or salesperson obtains the listing on the property.
  B. The [listing] seller’s agent should provide the disclosure statement or disclaimer statement to the prospective purchaser or to the [selling or cooperating] buyer’s agent assisting the purchaser promptly upon notification that an offer is going to be made. If the [listing] seller’s agent does not know in advance that an offer is to be made, the [listing] seller’s agent should provide the disclosure statement or disclaimer statement at the time the [listing] seller’s agent receives the written offer.
  C. The [selling or cooperating] buyer’s agent should make every effort to ensure that the prospective purchaser has the disclosure statement or the disclaimer statement in hand before submission of the offer to purchase the property.

09.11.08 Agency Relationship Disclosure/Dual Agency Consent

Authority: Business Occupations and Professions Article, [§17-528] §17-530, Annotated Code of Maryland

.01 Agency Relationship Disclosure Form/Dual Agency Consent Form.
In accordance with the provisions of Business Occupations and Professions Article, [§17-528] §17-530, Annotated Code of Maryland, model Agency Disclosure and Dual Agency Consent forms provided by the Maryland Real Estate Commission shall be used in all applicable real estate property transactions.

KATHIE CONNELLY
Executive Director
Real Estate Commission