Bill Summary – FastDemocracy

LB1135                                                                               LB1135
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                                LEGISLATURE OF NEBRASKA
                           ONE HUNDRED EIGHTH LEGISLATURE
                                        SECOND SESSION
                        LEGISLATIVE BILL 1135
      Introduced by Dover, 19.
      Read first time January 11, 2024
      Committee: Banking, Commerce and Insurance
  A BILL FOR AN ACT relating to real property; to amend sections 81-885.01,
         81-885.24, and 87-302, Revised Statutes Cumulative Supplement, 2022;
        to prohibit recording right-to-list home sale agreements and certain
         liens and encumbrances and provide for such agreements, liens, and
         encumbrances to be void; to define a term and provide for an unfair
         trade practice under the Nebraska Real Estate License Act;   to
         provide a deceptive trade practice under the Uniform Deceptive Trade
        Practices Act; to provide a duty for the Revisor of Statutes; and to
        repeal the original sections.
    Be it enacted by the people of the State of Nebraska,
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            Section 1.       (1) No person shall present for recording, cause to be
  presented for recording, or record in the office of the register of deeds
     or county clerk any (a) right-to-list home sale agreement as defined in
     section 81-885.01 or (b) lien or encumbrance resulting from such right-
  to-list home sale agreement.
            (2) Any right-to-list home sale agreement as defined in section
     81-885.01 or lien or encumbrance resulting from such right-to-list home
    sale agreement that is     executed,    modified,      or extended after the
    effective date of this act is void and unenforceable.
            Sec. 2. Section 81-885.01, Revised Statutes Cumulative Supplement,
  2022, is amended to read:
            81-885.01 For purposes of the Nebraska Real Estate License Act,
  unless the context otherwise requires:
            (1) Associate broker means a person who has a broker's license and
  who is    employed by     another broker to   participate in   any activity
  described in subdivision (2) of this section;
            (1) Real estate means and includes condominiums and leaseholds, as
    well as    any other interest or    estate in   land,    whether corporeal,
     incorporeal, freehold, or nonfreehold, and whether the real estate is
  situated in this state or elsewhere;
           (2) Broker means any person who, for any form of compensation or
     consideration or with the intent or expectation of receiving the same
  from another, negotiates or attempts to negotiate the listing, sale,
  purchase,        exchange,        rent,    lease,     or option for any real estate or
  improvements thereon, or assists in procuring prospects or holds himself
     or herself out as a referral agent for the purpose of securing prospects
     for the listing, sale, purchase, exchange, renting, leasing, or optioning
    of any real estate or collects rents or attempts to collect rents, gives
     a broker's price opinion or comparative market analysis, or holds himself
 or herself out as engaged in any of the foregoing. Broker also includes
     any person: (a) Employed, by or on behalf of the owner or owners of lots
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     or other parcels of   real estate,    for any form of    compensation or
 consideration to sell such real estate or any part thereof in lots or
    parcels or make other disposition thereof; (b) who auctions, offers,
    attempts, or agrees to auction real estate; or (c) who buys or offers to
    buy or sell or otherwise deals in options to buy real estate;
           (3) Broker's price opinion means an analysis, opinion, or conclusion
  prepared by a person licensed under the Nebraska Real Estate License Act
 in the ordinary course of his or her business relating to the price of
     specified interests in or aspects of identified real estate or identified
 real property for the purpose of (a) listing, purchase, or sale, (b)
    originating, extending, renewing, or modifying a loan in a transaction
     other than a federally related transaction, or (c) real property tax
  appeals;
          (3) Associate broker means a person who has a broker's license and
    who is     employed by   another broker to   participate in   any activity
    described in subdivision (2) of this section;
          (4) Commission means the State Real Estate Commission;
          (5)     Comparative market analysis means an   analysis,     opinion,    or
    conclusion prepared by a person licensed under the act in the ordinary
     course of    his or    her business relating to    the price of    specified
 interests in or aspects of identified real estate or identified real
    property by comparison to other real property currently or recently in
     the marketplace for the purpose of (a) listing, purchase, or sale, (b)
     originating, extending, renewing, or modifying a loan in a transaction
 other than a federally related transaction, or (c) real property tax
    appeals;
           (6) (4) Designated broker means an individual holding a broker's
  license who has full authority to conduct the real estate activities of a
 real estate business. In a sole proprietorship, the owner, or broker
    identified by the owner, shall be the designated broker. In the event the
    owner identifies the designated broker, the owner shall file a statement
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     with the commission subordinating to the designated broker full authority
 to conduct the real estate activities of the sole proprietorship. In a
    partnership, limited liability company, or corporation, the partners,
    limited liability company members, or board of directors shall identify
    the designated broker for its real estate business by filing a statement
    with the commission subordinating to the designated broker full authority
     to conduct the real estate activities of    the partnership,   limited
 liability company, or corporation. The designated broker shall also be
    responsible for supervising the real estate activities of any associate
    brokers or salespersons;
          (7) Distance education means courses in which instruction does not
  take place in a traditional classroom setting, but rather through other
 media by which instructor and student are separated by distance and
    sometimes by time;
          (8) Federal financial institution regulatory agency means (a) the
  Board of Governors of the Federal Reserve System, (b) the Federal Deposit
  Insurance Corporation, (c) the Office of the Comptroller of the Currency,
  (d) the Consumer Financial Protection Bureau, (e) the National Credit
  Union Administration, or (f) the successors of any of those agencies;
          (9)   Federally related transaction means      a real-estate-related
 transaction that (a) requires the services of an appraiser and (b) is
    engaged in,    contracted for,     or regulated by    a federal financial
    institution regulatory agency;
          (10) (5) Inactive broker means an associate broker whose license has
  been returned to the commission by the licensee's broker, a broker who
 has requested the commission to place the license on inactive status, a
    new licensee who has failed to designate an employing broker or have the
    license issued as an individual broker, or a broker whose license has
    been placed on inactive status under statute, rule, or regulation;
          (6) Salesperson means any person, other than an associate broker,
  who is employed by a broker to participate in any activity described in
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    subdivision (2) of this section;
            (11) (7) Inactive salesperson means a salesperson whose license has
     been returned to the commission by the licensee's broker, a salesperson
 who has requested the commission to place the license on inactive status,
    a new licensee who has failed to designate an employing broker, or a
    salesperson whose license has been placed on   inactive status under
    statute, rule, or regulation;
           (12)     (8)    Person means and includes individuals,     corporations,
    partnerships, and limited liability companies, except that when referring
    to a person licensed under the act, it means an individual;
            (13) Purchaser means a person who acquires or attempts to acquire or
  succeeds to an interest in land;
           (14) Real estate means and includes condominiums and leaseholds, as
    well as    any other interest or    estate in    land,   whether corporeal,
    incorporeal, freehold, or nonfreehold, and whether the real estate is
    situated in this state or elsewhere;
            (15) Regulatory jurisdiction means a state, district, or territory
 of the United States, a province of Canada or a foreign country, or a
    political subdivision of a foreign country, which has implemented and
    administers laws regulating the activities of a broker;
           (16) Right-to-list home sale agreement means an agreement:
           (a) By the owner of residential real estate to provide another
    person with the exclusive right to list such residential real estate for
     sale at a future date in exchange for monetary consideration or an
  equivalent to monetary consideration; and
           (b)(i)    That states that the agreement runs with the land or
    otherwise purports to bind future owners of such residential real estate;
    or
           (ii) That purports to be a lien, encumbrance, or other real property
    security interest;
            (17) Salesperson means any person, other than an associate broker,
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  who is employed by a broker to participate in any activity described in
  subdivision (2) of this section;
         (18) Subdivider means any person who causes land to be subdivided
  into a subdivision for himself, herself, or others or who undertakes to
  develop a subdivision but does not include a public agency or officer
  authorized by law to create subdivisions;
         (19) Subdivision or subdivided land means any real estate offered
  for sale and which has been registered under the Interstate Land Sales
 Full Disclosure Act, 15 U.S.C. 1701 et seq., as such act existed on
     January 1, 1973, or real estate located out of this state which is
  divided or proposed to be divided into twenty-five or more lots, parcels,
  or units;
         (20) (9) Team means two or more persons licensed by the commission
    who (a) work under the supervision of the same broker, (b) work together
     on real estate transactions to provide real estate brokerage services,
     (c) represent themselves to the public as being part of a team, and (d)
  are designated by a team name; and
        (21) (10) Team leader means any person licensed by the commission
     and appointed or recognized by his or her broker as the leader for his or
  her team. ;
         (11) Subdivision or subdivided land means any real estate offered
  for sale and which has been registered under the Interstate Land Sales
  Full Disclosure Act, 15 U.S.C. 1701 et seq., as such act existed on
     January 1, 1973, or real estate located out of this state which is
  divided or proposed to be divided into twenty-five or more lots, parcels,
  or units;
         (12) Subdivider means any person who causes land to be subdivided
     into a subdivision for himself, herself, or others or who undertakes to
     develop a subdivision but does not include a public agency or officer
  authorized by law to create subdivisions;
         (13) Purchaser means a person who acquires or attempts to acquire or
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  succeeds to an interest in land;
         (14) Commission means the State Real Estate Commission;
        (15)      Broker's price opinion means an        analysis,    opinion,    or
     conclusion prepared by a person licensed under the Nebraska Real Estate
    License Act in the ordinary course of his or her business relating to the
    price of specified interests in or aspects of identified real estate or
     identified real property for the purpose of (a) listing, purchase, or
  sale, (b) originating, extending, renewing, or modifying a loan in a
  transaction other than   a federally related transaction,      or   (c)   real
     property tax appeals;
        (16)      Comparative market analysis means an    analysis,    opinion,   or
     conclusion prepared by a person licensed under the act in the ordinary
    course of    his or   her business relating to    the price of   specified
     interests in or aspects of identified real estate or identified real
  property by comparison to other real property currently or recently in
  the marketplace for the purpose of (a) listing, purchase, or sale, (b)
 originating, extending, renewing, or modifying a loan in a transaction
  other than a federally related transaction, or (c) real property tax
     appeals;
         (17) Distance education means courses in which instruction does not
  take place in a traditional classroom setting, but rather through other
  media by which instructor and student are separated by distance and
     sometimes by time;
         (18) Regulatory jurisdiction means a state, district, or territory
 of the United States, a province of Canada or a foreign country, or a
     political subdivision of a foreign country, which has implemented and
     administers laws regulating the activities of a broker;
         (19) Federal financial institution regulatory agency means (a) the
  Board of Governors of the Federal Reserve System, (b) the Federal Deposit
  Insurance Corporation, (c) the Office of the Comptroller of the Currency,
 (d) the Consumer Financial Protection Bureau, (e) the National Credit
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 Union Administration, or (f) the successors of any of those agencies; and
         (20)    Federally related transaction means      a real-estate-related
 transaction that (a) requires the services of an appraiser and (b) is
 engaged in,   contracted for,    or regulated by     a federal financial
 institution regulatory agency.
         Sec. 3. Section 81-885.24, Revised Statutes Cumulative Supplement,
 2022, is amended to read:
         81-885.24 The commission may, upon its own motion, and shall, upon
 the sworn complaint in writing of any person, investigate the actions of
 any broker, associate broker, salesperson, or subdivider, may censure the
 licensee or    certificate holder,        revoke or    suspend any license or
 certificate issued under the Nebraska Real Estate License Act, or enter
 into consent orders, and, alone or in combination with such disciplinary
 actions, may impose a civil fine on a licensee pursuant to section
 81-885.10, whenever the license or certificate has been obtained by false
 or fraudulent representation or the licensee or certificate holder has
     been found guilty of any of the following unfair trade practices:
         (1)    Refusing because of    religion,        race,    color,         national origin,
 ethnic group, sex, familial status, or disability to show, sell, or rent
 any real estate for sale or rent to prospective purchasers or renters;
         (2)     Intentionally using advertising which is     misleading or
 inaccurate in any material particular or in any way misrepresents any
 property, terms, values, policies, or services of the business conducted;
         (3) Failing to account for and remit any money coming into his or
     her possession belonging to others;
         (4) Commingling the money or other