CHAPTER 63
STATE REAL ESTATE COMMISSION
AN ACT to create a State Real Estate Commission: to register, define and regulate real estate brokers and real estate salesmen and to provide a penalty for the violation of the provisions hereof.
Be it enacted by the Senate and House of Representatives of the State of Delaware in General Assembly met:
Section 1. There is hereby created the Delaware Real Estate Commission composed of three persons. The Governor shall appoint three persons, whose vocation, for a period of at least three years prior to the date of their appointment, shall have been that of a real estate broker within the State of Delaware; one member shall be appointed for term of one year; one member shall be appointed for a term of two years; one member shall be appointed for a term of three years, and until their successors are appointed and qualified. Thereafter the term of the members of said commission shall be for three years and until their successors are appointed and qualified. Members to fill vacancies shall be appointed for the unexpired term.
Section 2. The members of said board, before entering upon their duties, shall respectively take and subscribe to an oath to exercise the duties of their office with fidelity, which said oath shall be filed with the Clerk of Peace of the County in which said members reside. The Commission, immediately upon the qualification of its members, shall organize by selecting from its members a Chairman, Secretary and Treasurer, and may do all other things necessary and convenient for carrying into effect the provisions of this act. The Secretary shall keep a full record of the proceedings of the Commission. Each member of the Commission shall receive as full compensation for each day actually spent on the work of said Commission the sum of Ten Dollars per day and actual and necessary expenses incurred in the performance of duties pertaining to his office, said moneys to be paid out of the moneys in the hands of the Treasurer of the Delaware Real Estate Commission ; provided, that said compensation shall in no event be paid out of the State Treasury. The Commission shall adopt a seal with such design as the Commission may prescribe engraved thereon. The meetings of the Commission shall be at such times and such places as the Commission shall prescribe.
Section 3. After July 1, A. D., 1927, it shall be unlawful for any person, co-partnership, association or corporation to act as a real estate broker or real estate salesman, or to advertise or assume to act as such real estate broker or real estate salesman, without being registered and without a certificate of registration issued by the Delaware Real Estate Commission. No co-partnership, association or corporation shall be granted a certificate unless every member or officer of such co-partnership, association or corporation who actively participates in the brokerage business of such co-partnership, association or corporation shall hold a certificate as a real estate broker and unless every employee who acts as a salesman for such person, co-partnership, association or corporation shall hold a certificate as a real estate salesman.
Section 4. A real estate broker, within the meaning of this Act, is any person, firm, partnership, co-partnership, association or corporation who, for a compensation or valuable consideration, sells or offers for sale, buys or offers to buy, or negotiates a purchase, sale or exchange of real estate or who leases or offers to lease, or rents or offers for rent, any real estate or the improvements thereon for others, as a whole or partial vocation.
A real estate salesman, within the meaning of this Act, is any person who, for a compensation or valuable consideration, is employed, either directly or indirectly by a real estate broker to sell or offer to sell, or to buy or to offer to buy, or to negotiate the purchase or sale or exchange of real estate, or to lease, or rent, or offer for rent, any real estate, or to negotiate leases thereof or of the improvements thereon, as a whole or partial vocation. The provisions of this Act shall not apply to any person, co-partnership, association or corporation, who, as owner or lessor, shall perform any of the acts aforesaid with reference to property owned or leased by them, 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, nor shall the provisions of this Act apply to 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, nor shall this Act 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, nor to include a trustee acting under a trust agreement, deed of trust or will, or the regular salaried employee thereof.
Section 5. A certificate shall be granted only to persons who bear a good reputation for honesty, truthfulness and fair dealing, and are competent to transact the business of a real estate broker or real estate salesman, in such manner as. to safeguard the interests of the public.
Section 6. Application for a certificate whether as a Real Estate Broker or a Real Estate Salesman shall be made to the Delaware Real Estate Commission, upon forms prescribed by said Commission, and the applicant shall furnish evidence of good moral character, and in the case of an association or corporation the Directors or Officers thereof shall furnish evidence of good moral character.
Every application for a certificate under the provisions of this Act shall be accompanied by the fee herein prescribed. In the event that the commission does not issue the certificate the fee shall be returned to the applicant.
Section 7. All certificates shall be issued by the commission in such form and size as shall be prescribed by the Commission. Such certificates shall show the name and address of the certificate- holder, and shall have imprinted thereon the seal of the Commission. It shall be the duty of each Certificate holder to conspicuously display the certificate in his place of business.
Section 8. When a real estate broker's certificate is granted to any co-partnership or association, consisting of more than one person, or to any corporation, this shall entitle the co-partnership, association or corporation to designate one of its members
or officers, who upon the compliance with the terms of this Act, shall without payment of any further fee, upon issuance of said broker's certificate, be entitled to perform all of the acts of real estate salesman contemplated by this Act. The person so designated, however, must make application for a salesman's certificate, which application shall accompany the application of the real estate broker, and be filed with the Commission at the same time. If, in any case, the person so designated by a real estate broker shall be refused a certificate by the Commission, or in any case such person ceases to be connected with such real estate broker, said broker shall have the right to designate another person who shall make application as in the first instance.
The revocation of a broker's certificate shall automatically suspend every real estate salesman's certificate granted to any person by virtue of his 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 salesman's certificate was granted.
Every real estate broker in this State shall maintain a place of business. If the real estate broker maintains more than one place of business within the State, a duplicate certificate shall be issued to such broker for each branch office maintained, provided, that if such broker be a co-partnership, association or corporation, a duplicate shall be issued to the members or officers thereof. A single fee of One Dollar ($1.00) in each case shall be paid for such duplicate 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.
When any real estate salesman shall be discharged or shall terminate his employment with the real estate broker by whom he is employed, it shall be the duty of such real estate broker to immediately notify the commission of such termination of employment. 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 salesman, which communication shall advise such Real Estate salesman that his employment has been terminated. A copy of such communication to the real estate salesman shall accompany the notification to the Commission. It shall be unlawful for any such real estate salesman to perform any of the acts contemplated by this Act, to engage directly or indirectly in the business of a Real Estate salesman, until the Commission, in its discretion shall issue a new certificate showing change of employment and business location.
Section 9. 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, investigate the actions of any real estate broker or real estate salesman, or any person who shall assume to act in either of said capacities within this State, and shall have the power to suspend or to revoke any certificate issued under the provisions of this Act, 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 deemed to be guilty of:
(a) Making any substantial misrepresentation, or
(b) Making any false promise of a character likely to influence, persuade or induce, or
(c) Pursuing a continued and flagrant course of misrepresentation, or the making of false promises through agents or salesmen or advertising or otherwise, or
(d) Acting for more than one party in a transaction without the knowledge of all parties for whom he acts, or
(e) Failing, within a reasonable time, to account for or to remit any moneys coming into his possession which belongs to others, or
(f) Being unworthy or incompetent to act as a real estate broker or salesman in such manner as to safeguard the interest of the public, or
(g) Paying a commission or valuable consideration to any person for acts or services performed in violation of this Act, or
(h) Any other conduct, whether of the same or a different character from that hereinbefore specified, which constitutes improper, fraudulent, or dishonest dealing.
And unlawful act or violation of any of the provisions of this Act by any real estate salesman, 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 shall appear to the satisfaction of the Commission that said employer, partner or associate had guilty knowledge thereof.
Section 10. The Commission shall, before denying an application for certificate, or before suspending or revoking any certificate, set the matter down for a hearing, and at least ten days prior to the date set for the hearing, it shall notify in writing the applicant, or certificate-holder of the charges made, and shall afford said applicant, or certificate-holder, an opportunity to be heard in person or by counsel in reference thereto. Such 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 said applicant, or certificate-holder, be a salesman, the Commission shall also notify the broker employing him, or in whose employ he is about to enter, by mailing notice by registered mail to the broker's last known business address. The hearing on such charges shall be at such time and place as the Commission shall prescribe. The Commission shall have the power to 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 his behalf at such hearing, upon making request therefor to the Commission and designating the person or persons sought to be subpoenaed. If the Commission shall determine that any applicant is not qualified to receive a certificate a certificate shall not be granted to said applicant, and if the Commission shall determine that any certificate-holder is guilty of a violation of any of the provisions of this Act, his or its certificate shall be suspended or revoked. The findings of fact made by the Commission, acting within its powers shall in the absence of fraud be conclusive, but the Superior Court shall have the power to review questions of law involved in any final decision or determination of the Commission ; Provided, that application is made by the aggrieved party within thirty days after such determination, by certiorari, mandamus, or by any other method permissible under the rules and practices of said Court, or the laws of this State, and said Court may make such further orders in respect thereto as justice may require.
Section 11. A non-resident of this State may become a real estate broker or a real estate salesman by conforming to all of the conditions of this paragraph and this Act.
In its discretion the Commission may recognize in lieu of the recommendations and statements required to accompany an application for certificate, the certificate issued to a non-resident broker, or salesman in such other state, upon payment of the certificate fee and the filing by the applicant with the Commission of a certified copy of applicant's certificate issued by such other state;
(1) Provided that such applicant, if a broker, shall maintain an active place of business in the state by which he is originally certified.
(2) Provided further that every non-resident applicant shall file an irrevocable consent that suits and actions may be commenced against such 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 the service of any process or pleading authorized by the laws of this State and the Secretary of the Commission, said consent stipulating and agreeing that such service of such process or pleadings on said secretary shall be taken and held in all courts to be as valid and binding as if due service had been made upon said applicant in the State of Delaware. Said instrument containing such consent shall be authenticated by the seal thereof, if a corporation, or by the acknowledged signature of a member or officer thereof, if otherwise. All such applications, except from individuals, shall be accompanied by the duly certified copy of the resolution of the proper officers or managing board, authorizing the proper officer to execute the same. In case any processes or pleadings mentioned in the case are served upon the Secretary of the Commission, duplicate copies shall be filed, one of which shall be filed in the office of the Commission and the other immediately forwarded by registered mail to the main office of the applicant against which process or pleadings are directed.
Section 12. Every certificate shall expire on the first day of July of each year. Renewals of certificates will be issued annually upon application of the holders thereof and upon the payment of the fee prescribed in this Act.
Section 13. The Delaware Real Estate Commission shall charge for the certificate provided for in this Act an annual fee of Five Dollars to each real estate broker, and $2.00 to each real estate salesman. This fee shall be payable by the applicant at the time of making his application. From the fees collected from this Act the Board shall pay all expenses incident to the issuing of certificates, holding of meetings, traveling expenses of the members of the Board and their compensation while performing their duties under this Act.
The Commission shall report annually the number of certificates issued and receipts and expenses under this Act to the Governor and any surplus then in the hands of the Board, above the sum of Five Hundred Dollars, which may be retained to meet future expenses, shall be paid at the time of filing said account with the State Treasurer for the use of the State.
The Commission shall publish annually the names of the duly certified real estate brokers and salesmen. Such report shall be mailed by the Commission to any person in this State, upon request.
Section 14. No certificate shall be issued to any real estate broker until the regular annual license fees or taxes, as now provided for both under the laws of this State and under the ordinances or requirements of the cities and towns in the State, shall have been paid; and no certificate shall be issued to any real estate salesman until the regular license fees or taxes aforesaid shall have been paid by the broker by whom said salesman is employed. Nothing herein contained shall eliminate or change in any manner real estate broker's license fees or taxes as now Prescribed by the laws of this State or the ordinances of the cities and towns of this State.
Section 15. Any person or corporation violating a provision of this Act shall be deemed guilty of a misdemeanor, and upon conviction thereof in the Court of General Sessions, if a natural person, be punished by a fine of not less than Two Hundred Dollars, nor more than One Thousand Dollars, or by imprisonment for a term not to exceed six months or by both, in the discretion of the Court, and if a corporation, be punished by a fine of not less than Two Hundred Dollars nor more than One Thousand Dollars. Any agent or officer of a corporation, or member or agent of a co-partnership or association, who shall personally participate or be accessory to any violation of this Act shall be subject to the penalties herein prescribed for individuals. The Commission shall report all violations of this Act to the Attorney General of the State of Delaware. All fines or penalties shall enure to the State of Delaware.
Section 16. The Commission may report a defendant for violation of this Act before any court of competent jurisdiction and it may take the necessary legal steps for the proper legal officers of this State to enforce the provisions hereof and collect the penalties herein provided.
Section 17. If any section, subsection, sentence, clause, phrase, or requirement of this Act is for any reason held to be unconstitutional, such decision shall not affect the validity of the remaining portions thereof. The Legislature hereby declares that it would have passed this Act, and each section, subsection, sentence, clause, phrase and requirement thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or requirements be declared unconstitutional.
Section 18. All laws or parts of laws in conflict with this Act be and the same are hereby repealed.
Section 19. Nothing in this Act contained shall affect the power of cities and villages to tax and license real estate brokers. The requirements hereof 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.
Section 20. This Act shall become effective on July 1st, A. D., 1927.
Approved April 1, A. D. 1927.