Second Regular Session 117th General Assembly (2012)
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SENATE ENROLLED ACT No. 275
AN ACT to amend the Indiana Code concerning professions and occupations.
Be it enacted by the General Assembly of the State of Indiana:
SOURCE: IC 5-20-5-18; (12)SE0275.1.1. -->
SECTION 1. IC 5-20-5-18 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2014]: Sec. 18. (a) An eligible
entity shall establish an affordable housing fund advisory committee
consisting of the following eleven (11) members:
(1) One (1) member appointed by the executive of the eligible
entity to represent the interests of low income families.
(2) One (1) member appointed by the executive of the eligible
entity to represent the interests of owners of subsidized,
multifamily housing communities.
(3) One (1) member appointed by the executive of the eligible
entity to represent the interests of banks and other financial
institutions.
(4) One (1) member appointed by the executive of the eligible
entity to represent the interests of the eligible entity.
(5) One (1) member appointed by the executive of the eligible
entity to represent real estate brokers. or salespersons. The
member appointed under this subdivision must be nominated to
the executive by the local realtors' association.
(6) One (1) member appointed by the executive of the eligible
entity to represent construction trades. The member appointed
under this subdivision must be nominated to the executive by the
local building trades council.
(7) Five (5) members appointed by the legislative body of the
eligible entity to represent the community at large. Members
appointed under this subdivision must be nominated to the
legislative body after a general call for nominations from
township trustees, community development corporations,
neighborhood associations, community based organizations, and
other social services agencies.
(b) Members of the affordable housing fund advisory committee
serve for a term of four (4) years, and are eligible for reappointment. If
a vacancy exists on the committee, the appointing authority that
appointed the former member whose position has become vacant shall
appoint an individual to fill the vacancy. A committee member may be
removed at any time by the appointing authority that appointed the
committee member.
(c) The affordable housing fund advisory committee shall make
recommendations to the eligible entity regarding:
(1) the development of policies and procedures for the uses of the
affordable housing fund; and
(2) long term sources of capital for the affordable housing fund,
including:
(A) revenue from:
(i) development ordinances;
(ii) fees; or
(iii) taxes;
(B) financial market based income;
(C) revenue derived from private sources; and
(D) revenue generated from grants, gifts, donations, or income
in any other form from a:
(i) government program;
(ii) foundation; or
(iii) corporation.
SOURCE: IC 23-1.5-1-13.5; (12)SE0275.1.2. -->
SECTION 2. IC 23-1.5-1-13.5 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2014]: Sec. 13.5. "Real estate
professional" means an individual who is licensed as
(1) a real estate salesperson under IC 25-34.1-3-3.1; or
(2) a real estate broker licensed under IC 25-34.1-3-4.1.
SOURCE: IC 23-2-5-3; (12)SE0275.1.3. -->
SECTION 3. IC 23-2-5-3, AS AMENDED BY HEA1294-2012,
SECTION 2, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2014]: Sec. 3. (a) As used in this chapter, "loan broker
license" means a license issued by the commissioner authorizing a
person to engage in the loan brokerage business.
(b) As used in this chapter, "licensee" means a person that is issued
a license under this chapter.
(c) As used in this chapter, "loan broker" means any person who, in
return for any consideration from any source procures, attempts to
procure, or assists in procuring, a residential mortgage loan from a
third party or any other person, whether or not the person seeking the
loan actually obtains the loan. "Loan broker" does not include:
(1) any supervised financial organization (as defined in
IC 26-1-4-102.5), including a bank, savings bank, trust company,
savings association, or credit union;
(2) any other financial institution that is:
(A) regulated by any agency of the United States or any state;
and
(B) regularly actively engaged in the business of making
consumer loans that are not secured by real estate or taking
assignment of consumer sales contracts that are not secured by
real estate;
(3) any insurance company;
(4) any person arranging financing for the sale of the person's
product; or
(5) a creditor that is licensed under IC 24-4.4-2-402.
(d) As used in this chapter, "loan brokerage business" means a
person acting as a loan broker.
(e) As used in this chapter, "mortgage loan origination activities"
means performing any of the following activities for compensation or
gain in connection with a residential mortgage loan:
(1) Receiving or recording a borrower's or potential borrower's
residential mortgage loan application information in any form for
use in a credit decision by a creditor.
(2) Offering to negotiate or negotiating terms of a residential
mortgage loan.
(f) As used in this chapter, "borrower's residential mortgage loan
application information" means the address of the proposed residential
real property to be mortgaged and borrower's essential personal and
financial information necessary for an informed credit decision to be
made on the borrower's mortgage loan application.
(g) As used in this chapter, "mortgage loan originator" means an
individual engaged in mortgage loan origination activities. The term
does not include a person who:
(1) performs purely administrative or clerical tasks on behalf of
a mortgage loan originator or acts as a loan processor or
underwriter;
(2) performs only real estate brokerage activities and is licensed
in accordance with IC 25-34.1 or the applicable laws of another
state, unless the person is compensated by a creditor, a loan
broker, a mortgage loan originator, or any agent of a creditor, a
loan broker, or a mortgage loan originator; or
(3) is involved only in extensions of credit relating to time share
plans (as defined in 11 U.S.C. 101(53D)).
(h) As used in this chapter, "mortgage loan originator license"
means a license issued by the commissioner authorizing an individual
to act as a mortgage loan originator on behalf of a loan broker licensee.
(i) As used in this chapter, "person" means an individual, a
partnership, a trust, a corporation, a limited liability company, a limited
liability partnership, a sole proprietorship, a joint venture, a joint stock
company, or another group or entity, however organized.
(j) As used in this chapter, "ultimate equitable owner" means a
person who, directly or indirectly, owns or controls ten percent (10%)
or more of the equity interest in a loan broker licensed or required to be
licensed under this chapter, regardless of whether the person owns or
controls the equity interest through one (1) or more other persons or
one (1) or more proxies, powers of attorney, or variances.
(k) As used in this chapter, "principal manager" means an individual
who:
(1) has at least three (3) years of experience:
(A) as a mortgage loan originator; or
(B) in financial services;
that is acceptable to the commissioner; and
(2) is principally responsible for the supervision and management
of the employees and business affairs of a loan broker licensee.
(l) As used in this chapter, "principal manager license" means a
license issued by the commissioner authorizing an individual to act as:
(1) a principal manager; and
(2) a mortgage loan originator;
on behalf of a loan broker licensee.
(m) As used in this chapter, "bona fide third party fee", with respect
to a residential mortgage loan, includes any of the following:
(1) Fees for real estate appraisals. However, if the residential
mortgage loan is governed by Title XI of the Financial Institutions
Reform, Recovery, and Enforcement Act (12 U.S.C. 3331 through
3352), the fee for an appraisal performed in connection with the
loan is not a bona fide third party fee unless the appraisal is
performed by a person that is licensed or certified under
IC 25-34.1-3-8.
(2) Fees for title examination, abstract of title, title insurance,
property surveys, or similar purposes.
(3) Notary and credit report fees.
(4) Fees for the services provided by a loan broker in procuring
possible business for a creditor if the fees are paid by the creditor.
(n) As used in this chapter, "branch office" means any fixed physical
location from which a loan broker licensee holds itself out as engaging
in the loan brokerage business.
(o) As used in this chapter, "loan processor or underwriter" means
an individual who:
(1) is employed by a loan broker licensee and acts at the direction
of, and subject to the supervision of, the loan broker licensee or
a licensed principal manager employed by the loan broker
licensee; and
(2) performs solely clerical or support duties on behalf of the loan
broker licensee, including any of the following activities with
respect to a residential mortgage loan application received by the
loan broker licensee:
(A) The receipt, collection, distribution, and analysis of
information commonly used in the processing or underwriting
of a residential mortgage loan.
(B) Communicating with a borrower or potential borrower to
obtain the information necessary for the processing or
underwriting of a residential mortgage loan, to the extent that
the communication does not include:
(i) offering or negotiating loan rates or terms; or
(ii) counseling borrowers or potential borrowers about
residential mortgage loan rates or terms.
(p) As used in this chapter, "real estate brokerage activity" means
any activity that involves offering or providing real estate brokerage
services to the public, including any of the following:
(1) Acting as a real estate broker or salesperson for a buyer, seller,
lessor, or lessee of real property.
(2) Bringing together parties interested in the sale, lease, or
exchange of real property.
(3) Negotiating, on behalf of any party, any part of a contract
concerning the sale, lease, or exchange of real property, other than
in connection with obtaining or providing financing for the
transaction.
(4) Engaging in any activity for which the person performing the
activity is required to be licensed under IC 25-34.1 or the
applicable laws of another state.
(5) Offering to engage in any activity, or to act in any capacity
with respect to any activity, described in subdivisions (1) through
(4).
(q) As used in this chapter, "registered mortgage loan originator"
means a mortgage loan originator who:
(1) is an employee of:
(A) a depository institution;
(B) a subsidiary that is:
(i) owned and controlled by a depository institution; and
(ii) regulated by a federal financial institution regulatory
agency (as defined in 12 U.S.C. 3350(6)); or
(C) an institution regulated by the Farm Credit Administration;
and
(2) is registered with and maintains a unique identifier with the
Nationwide Mortgage Licensing System and Registry.
(r) As used in this chapter, "residential mortgage loan" means a loan
that is or will be used primarily for personal, family, or household
purposes and that is secured by a mortgage (or another equivalent
consensual security interest) on a dwelling (as defined in Section
103(w) of the federal Truth in Lending Act (15 U.S.C. 1602(w)) or on
residential real estate on which a dwelling is constructed or intended
to be constructed.
(s) As used in this chapter, "personal information" includes any of
the following:
(1) An individual's first and last names or first initial and last
name.
(2) Any of the following data elements:
(A) A Social Security number.
(B) A driver's license number.
(C) A state identification card number.
(D) A credit card number.
(E) A financial account number or debit card number in
combination with a security code, password, or access code
that would permit access to the person's account.
(3) With respect to an individual, any of the following:
(A) Address.
(B) Telephone number.
(C) Information concerning the individual's:
(i) income or other compensation;
(ii) credit history;
(iii) credit score;
(iv) assets;
(v) liabilities; or
(vi) employment history.
(t) As used in this chapter, personal information is "encrypted" if the
personal information:
(1) has been transformed through the use of an algorithmic
process into a form in which there is a low probability of
assigning meaning without use of a confidential process or key;
or
(2) is secured by another method that renders the personal
information unreadable or unusable.
(u) As used in this chapter, personal information is "redacted" if the
personal information has been altered or truncated so that not more
than the last four (4) digits of:
(1) a Social Security number;
(2) a driver's license number;
(3) a state identification number; or
(4) an account number;
are accessible as part of the personal information.
(v) As used in this chapter, "depository institution" has the meaning
set forth in the Federal Deposit Insurance Act (12 U.S.C. 1813(c)) and
includes any credit union.
(w) As used in this chapter, "state licensed mortgage loan
originator" means any individual who:
(1) is a mortgage loan originator;
(2) is not an employee of:
(A) a depository institution;
(B) a subsidiary that is:
(i) owned and controlled by a depository institution; and
(ii) regulated by a federal financial institution regulatory
agency (as defined in 12 U.S.C. 3350(6)); or
(C) an institution regulated by the Farm Credit Administration;
(3) is licensed by a state or by the Secretary of the United States
Department of Housing and Urban Development under Section
1508 of the S.A.F.E. Mortgage Licensing Act of 2008 (Title V of
P.L.110-289); and
(4) is registered as a mortgage loan originator with, and maintains
a unique identifier through, the Nationwide Mortgage Licensing
System and Registry.
(x) As used in this chapter, "unique identifier" means a number or
other identifier that:
(1) permanently identifies a mortgage loan originator; and
(2) is assigned by protocols established by the Nationwide
Mortgage Licensing System and Registry and the federal financial
institution regulatory agencies to facilitate:
(A) the electronic tracking of mortgage loan originators; and
(B) the uniform identification of, and public access to, the
employment history of and the publicly adjudicated
disciplinary and enforcement actions against mortgage loan
originators.
(y) As used in this chapter, "residential real estate" means real
property:
(1) that is located in Indiana; and
(2) upon which a dwelling is constructed or intended to be
constructed.
SOURCE: IC 25-20.2-1-1; (12)SE0275.1.4. -->
SECTION 4. IC 25-20.2-1-1, AS AMENDED BY P.L.2-2008,
SECTION 63, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2014]: Sec. 1. (a) This article applies to an individual who
conducts home inspections for compensation.
(b) This article does not apply to the following:
(1) An individual who is acting within the scope of the
individual's employment as:
(A) a code enforcement official for the state or a political
subdivision of the state; or
(B) a representative of a state or local housing agency or
authority acting under the authority of the United States
Department of Housing and Urban Development.
(2) An individual who is:
(A) either:
(i) registered as an architect under IC 25-4;
(ii) registered as a professional engineer under IC 25-31; or
(iii) licensed as a plumbing contractor or journeyman
plumber under IC 25-28.5; and
(B) acting within the scope of the individual's registration or
license.
(3) An individual who is licensed under IC 25-34.1 as a real estate
broker broker-salesperson, or salesperson and is acting within the
scope of the individual's license.
(4) An individual who is licensed or certified under IC 25-34.1 as
a real estate appraiser and is acting within the scope of the
individual's license or certificate.
(5) An individual who holds a certificate of authority under
IC 27-1-27-2 as a public adjuster and is acting within the scope of
the individual's certificate.
(6) An individual who holds a permit, certificate, or license to:
(A) use and apply pesticides; or
(B) make diagnostic inspections and reports for wood
destroying pests;
under IC 15-16-5 and is acting within the scope of the individual's
certificate or license.
(7) An individual who holds a license from a political subdivision
as a tradesperson or home builder and is acting within the scope
of the individual's license.
SOURCE: IC 25-20.2-3-2; (12)SE0275.1.5. -->
SECTION 5. IC 25-20.2-3-2 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2014]: Sec. 2. (a) The board is
composed of seven (7) members appointed by the governor as follows:
(1) Four (4) members, each of whom:
(A) is licensed in Indiana as a home inspector; and
(B) has been actively engaged in performing home inspections
in Indiana for at least five (5) years immediately before the
member's appointment to the board.
(2) One (1) member who:
(A) is a home builder; and
(B) has been actively engaged in home building in Indiana for
at least five (5) years immediately before the member's
appointment to the board.
(3) One (1) member who:
(A) is a licensed real estate salesperson under IC 25-34.1-3-3.1
or a licensed real estate broker under IC 25-34.1-3-4.1; and
(B) has been actively engaged in selling, trading, exchanging,
optioning, leasing, renting, managing, listing, or appraising
residential real estate in Indiana for at least five (5) years
immediately before the member's appointment to the board.
(4) One (1) member who represents the public at large and is not
associated with the home inspection, home building, or real estate
business other than as a consumer.
(b) The members of the board must be residents of Indiana.
SOURCE: IC 25-34.1-1-1; (12)SE0275.1.6. -->
SECTION 6. IC 25-34.1-1-1 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2014]: Sec. 1. This article shall be
known as the "Real Estate Broker and Salesperson Licensing Act."
SOURCE: IC 25-34.1-1-2; (12)SE0275.1.7. -->
SECTION 7. IC 25-34.1-1-2, AS AMENDED BY P.L.1-2006,
SECTION 479, IS AMENDED TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2014]: Sec. 2. As used in this article:
(1) "Person" means an individual, a partnership, a corporation, or
a limited liability company.
(2) "Commission" means the Indiana real estate commission.
(3) "Real estate" means any right, title, or interest in real property.
(4) "Broker" means a person who:
(A) for consideration, sells, buys, trades, exchanges, options,
leases, rents, manages, lists, or appraises real estate or
negotiates or offers to perform any of those acts;
and
(B) is acting in association with and under the auspices of
a managing broker.
(5) "Salesperson" means an individual, other than a broker, who,
for consideration and in association with and under the auspices
of a broker, sells, buys, trades, exchanges, options, leases, rents,
manages, or lists real estate or negotiates or offers to perform any
of those acts.
(6) "Broker-salesperson" means an individual broker who is
acting in association with and under the auspices of another
broker.
(7) "Principal broker" means a broker who is not acting as a
broker-salesperson.
(8) (5) "License" means a broker
or salesperson license issued
under this article and which is not expired, suspended, or revoked.
(9) (6) "Licensee" means a person who holds a license issued
under this article. The term does not include a person who holds
a real estate appraiser license or certificate issued under the real
estate appraiser licensure and certification program established
under IC 25-34.1-3-8.
(10) (7) "Course approval" means approval of a broker
or
salesperson course granted under this article which is not expired,
suspended, or revoked.
(11) (8) "Licensing agency" means the Indiana professional
licensing agency established by IC 25-1-5-3.
(12) (9) "Board" refers to the real estate appraiser licensure and
certification board established under IC 25-34.1-8-1.
(13) (10) "Commercial real estate" means a parcel of real estate
other than real estate containing one (1) to four (4) residential
units. This term does not include single family residential units
such as:
(A) condominiums;
(B) townhouses;
(C) manufactured homes; or
(D) homes in a subdivision;
when sold, leased, or otherwise conveyed on a unit-by-unit basis,
even if those units are part of a larger building or parcel of real
estate containing more than four (4) residential units.
(14) (11) "Out-of-state commercial broker" includes a person, a
partnership, an association, a limited liability company, a limited
liability partnership, or a corporation that is licensed to do
business as a broker in a jurisdiction other than Indiana.
(15) (12) "Out-of-state commercial salesperson" includes a person
affiliated with an out-of-state commercial broker who is not
licensed as a salesperson broker under this article.
(13) "Managing broker" refers to a broker whom the
commission holds responsible for the actions of licensees who
are affiliated with the managing broker.
SOURCE: IC 25-34.1-1-4; (12)SE0275.1.8. -->
SECTION 8. IC 25-34.1-1-4 IS ADDED TO THE INDIANA CODE
AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY
1, 2014]: Sec. 4. Beginning July 1, 2014, licenses issued under this
article are for a term of three (3) years.
SOURCE: IC 25-34.1-2-5; (12)SE0275.1.9. -->
SECTION 9. IC 25-34.1-2-5, AS AMENDED BY P.L.177-2009,
SECTION 58, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2012]: Sec. 5. The commission may:
(1) administer and enforce the provisions of this article;
(2) adopt rules in accordance with IC 4-22-2 and prescribe forms
for licenses, applications,
principal broker certifications, and
other documents which are necessary or appropriate for the
administration and enforcement of this article;
(3) issue, deny, suspend, and revoke licenses in accordance with
this article, which licenses shall remain the property of the
commission;
(4) subject to IC 25-1-7, investigate complaints concerning
licensees or persons the commission has reason to believe should
be licensees, including complaints respecting failure to comply
with this article or the rules, and, when appropriate, take action
pursuant to IC 25-34.1-6;
(5) bring actions, in the name of the state of Indiana, in an
appropriate circuit court in order to enforce compliance with this
article or the rules;
(6) inspect the records of a licensee in accordance with rules and
standards prescribed by the commission;
(7) conduct, or designate a member or other representative to
conduct, public hearings on any matter for which a hearing is
required under this article and exercise all powers granted in
IC 4-21.5;
(8) adopt a seal containing the words "Indiana Real Estate
Commission" and, through its executive director, certify copies
and authenticate all acts of the commission;
(9) utilize counsel, consultants, and other persons who are
necessary or appropriate to administer and enforce this article and
the rules;
(10) enter into contracts and authorize expenditures that are
necessary or appropriate, subject to IC 25-1-6, to administer and
enforce this article and the rules;
(11) maintain the commission's office, files, records, and property
in the city of Indianapolis;
(12) grant, deny, suspend, and revoke approval of examinations
and courses of study as provided in IC 25-34.1-5;
(13) provide for the filing and approval of surety bonds which are
required by IC 25-34.1-5;
(14) adopt rules in accordance with IC 4-22-2 necessary for the
administration of the investigative fund established under
IC 25-34.1-8-7.5;
(15) annually adopt emergency rules under IC 4-22-2-37.1 to
adopt any or all parts of Uniform Standards of Professional
Appraisal Practice (USPAP), including the comments to the
USPAP, as published by the Appraisal Standards Board of the
Appraisal Foundation, under the authority of Title XI of the
Financial Institutions Reform, Recovery, and Enforcement Act
(12 U.S.C. 3331-3351); and
(16) exercise other specific powers conferred upon the
commission by this article; and
(17) adopt rules under IC 4-22-2 governing education,
including prelicensing, postlicensing, and continuing
education.
SOURCE: IC 25-34.1-2-7; (12)SE0275.1.10. -->
SECTION 10. IC 25-34.1-2-7, AS ADDED BY P.L.57-2007,
SECTION 2, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2014]: Sec. 7. (a) Except as provided in subsection (b), all
funds collected under this article shall, at the end of each month, be
reported to the auditor of state and deposited with the treasurer of state
for deposit in the general fund. All expenses incurred in the
administration of this article shall be paid from the general fund.
(b) The commission shall establish a fee of not more than twenty
dollars ($20) for real estate brokers and salespersons to provide funds
for the purpose of administering and enforcing the provisions of this
article, including investigating and taking enforcement action against
real estate fraud and real estate appraisal fraud. All funds collected
under this subsection shall be deposited in the investigative fund
established by IC 25-34.1-8-7.5.
SOURCE: IC 25-34.1-3-2; (12)SE0275.1.11. -->
SECTION 11. IC 25-34.1-3-2 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2014]: Sec. 2. (a) Except as
provided in:
(1) subsection (b);
(2) section 8(i) of this chapter; and
(3) section 11 of this chapter;
no person shall, for consideration, sell, buy, trade, exchange, option,
lease, rent, manage, list, or appraise real estate or negotiate or offer to
perform any of those acts in Indiana or with respect to real estate
situated in Indiana, without a license.
(b) This article does not apply to:
(1) acts of an attorney which constitute the practice of law;
(2) performance by a public official of acts authorized by law;
(3) acts of a receiver, executor, administrator, commissioner,
trustee, or guardian, respecting real estate owned or leased by the
person represented, performed pursuant to court order or a will;
(4) rental, for periods of less than thirty (30) days, of rooms,
lodging, or other accommodations, by any commercial hotel,
motel, tourist facility, or similar establishment which regularly
furnishes such accommodations for consideration;
(5) rental of residential apartment units by an individual
employed or supervised by a licensed broker;
(6) rental of apartment units which are owned and managed by a
person whose only activities regulated by this article are in
relation to a maximum of twelve (12) apartment units which are
located on a single parcel of real estate or on contiguous parcels
of real estate;
(7) referral of real estate business by a broker salesperson, or
referral company which is licensed under the laws of another
state, to or from brokers and salespersons licensed by this state;
(8) acts performed by a person in relation to real estate owned by
that person unless that person is licensed under this article, in
which case the article does apply to him;
(9) acts performed by a regular, full-time, salaried employee of a
person in relation to real estate owned or leased by that person
unless the employee is licensed under this article, in which case
the article does apply to him;
(10) conduct of a sale at public auction by a licensed auctioneer
pursuant to IC 25-6.1;
(11) sale, lease, or other transfer of interests in cemetery lots; and
(12) acts of a broker, or salesperson, who is licensed under the
laws of another state, which are performed pursuant to, and under
restrictions provided by, written permission that is granted by the
commission in its sole discretion, except that such a person shall
comply with the requirements of section 5(c) of this chapter.
SOURCE: IC 25-34.1-3-3.1; (12)SE0275.1.12. -->
SECTION 12. IC 25-34.1-3-3.1 IS REPEALED [EFFECTIVE JULY
1, 2014].
Sec. 3.1. (a) To obtain a salesperson license, an individual
must:
(1) be at least eighteen (18) years of age before applying for a
license and must not have a conviction for:
(A) an act that would constitute a ground for disciplinary
sanction under IC 25-1-11;
(B) a crime that has a direct bearing on the individual's ability
to practice competently; or
(C) a crime that indicates the individual has the propensity to
endanger the public;
(2) have successfully completed courses in the principles,
practices, and law of real estate, totaling eight (8) semester credit
hours, or their equivalent, as a student at an accredited college or
university or have successfully completed an approved
salesperson course as provided in IC 25-34.1-5-5(a);
(3) apply for a license by submitting the fee prescribed by the
commission and an application containing the name, address, and
age of the applicant, the name under which the applicant intends
to conduct business, the principal broker's address where the
business is to be conducted, proof of compliance with subdivision
(2), and any other information the commission requires;
(4) pass a written examination prepared and administered by the
commission or its duly appointed agent; and
(5) submit not more than one (1) year after passing the written
examination under subdivision (4) a sworn certification of a
principal broker that the principal broker intends to associate with
the applicant and maintain that association until notice of
termination of the association is given to the commission.
(b) Upon the applicant's compliance with the requirements of
subsection (a), the commission shall:
(1) issue a wall certificate in the name of the salesperson to the
principal broker who certified the applicant's association with the
principal broker; and
(2) issue to the salesperson a pocket identification card which
certifies that the salesperson is licensed and indicates the
expiration date of the license and the name of the principal
broker.
(c) A salesperson shall:
(1) act under the auspices of the principal broker responsible for
that salesperson's conduct under this article;
(2) be associated with only one (1) principal broker;
(3) maintain evidence of licensure in the office, branch office, or
sales outlet of the principal broker;
(4) advertise only in the name of the principal broker, with the
principal broker's name in letters of advertising larger than that of
the salesperson's name; and
(5) not maintain any real estate office apart from that office
provided by the principal broker.
(d) Upon termination of a salesperson's association with a principal
broker, the salesperson's license shall be returned to the commission
within five (5) business days. The commission shall reissue the license
to any principal broker whose certification, as prescribed in subsection
(a)(5), is filed with the commission, and the commission shall issue a
new identification card to the salesperson reflecting that change.
(e) Unless a license is renewed, a salesperson license expires on a
date specified by the licensing agency under IC 25-1-6-4 and expires
biennially after the initial expiration date. An applicant for renewal
shall submit an application in the manner prescribed by the board and
pay the renewal fee established by the board under IC 25-1-8-2 on or
before the renewal date specified by the licensing agency. If the holder
of a license does not renew the license by the date specified by the
licensing agency, the license expires and becomes invalid without the
board taking any action.
(f) If the holder of a license under this section fails to renew the
license on or before the date specified by the licensing agency, the
license may be reinstated by the commission if the holder of the
license, not later than three (3) years after the expiration of the license,
meets the requirements of IC 25-1-8-6(c).
(g) If a license under this section has been expired for more than
three (3) years, the license may be reinstated by the commission if the
holder meets the requirements for reinstatement under IC 25-1-8-6(d).
(h) A salesperson license may be issued to an individual who is not
yet associated with a principal broker but who otherwise meets the
requirements of subsection (a). A license issued under this subsection
shall be held by the commission in an unassigned status until the date
the individual submits the certification of a principal broker required
by subsection (a)(5). If the individual does not submit the application
for licensure within one (1) year after passing the commission
examination, the commission shall void the application and may not
issue a license to that applicant unless the applicant again complies
with the requirements of subsection (a)(4) through (a)(5).
(i) If an individual holding a salesperson license is not associated
with a principal broker for two (2) successive renewal periods, the
commission shall notify the individual in writing that the individual's
license will become void if the individual does not associate with a
principal broker within thirty (30) days from the date the notification
is mailed. A void license may not be renewed.
SOURCE: IC 25-34.1-3-4.1; (12)SE0275.1.13. -->
SECTION 13. IC 25-34.1-3-4.1, AS AMENDED BY P.L.105-2008,
SECTION 63, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2014]: Sec. 4.1. (a) To obtain a broker license, an individual
must:
(1) be at least eighteen (18) years of age before applying for a
license and must not have a conviction for:
(A) an act that would constitute a ground for disciplinary
sanction under IC 25-1-11;
(B) a crime that has a direct bearing on the individual's ability
to practice competently; or
(C) a crime that indicates the individual has the propensity to
endanger the public;
(2) have satisfied section 3.1(a)(2) of this chapter and have had
continuous active experience for one (1) year immediately
preceding the application as a licensed salesperson in Indiana.
However, this one (1) year experience requirement may be
waived by the commission upon a finding of equivalent
experience;
(2) have a high school diploma or a general educational
development (GED) diploma under IC 20-20-6 (before its
repeal) or IC 22-4.1-18;
(3) have successfully completed an approved broker course of
study as prescribed in
IC 25-34.1-5-5(b); IC 25-34.1-5-5;
(4) apply for a license by submitting the application fee
prescribed by the commission and an application specifying the
name, address, and age of the applicant, the name under which
the applicant intends to conduct business, the address where the
business is to be conducted, proof of compliance with
subdivisions (2) and (3), and any other information the
commission requires;
(5) pass a written examination prepared and administered by the
commission or its duly appointed agent; and
(6) within one (1) year after passing the commission examination,
submit the license fee established by the commission under
IC 25-1-8-2. If an individual applicant fails to file a timely license
fee, the commission shall void the application and may not issue
a license to that applicant unless that applicant again complies
with the requirements of subdivisions (4) and (5) and this
subdivision.
(b) To obtain a broker license, a partnership must:
(1) have as partners only individuals who are licensed brokers;
(2) have at least one (1) partner who:
(A) is a resident of Indiana; or
(B) is a principal managing broker under IC 25-34.1-4-3(b);
(3) cause each employee of the partnership who acts as a broker
or salesperson to be licensed; and
(4) submit the license fee established by the commission under
IC 25-1-8-2 and an application setting forth the name and
residence address of each partner and the information prescribed
in subsection (a)(4).
(c) To obtain a broker license, a corporation must:
(1) have a licensed broker:
(A) residing in Indiana who is either an officer of the
corporation or, if no officer resides in Indiana, the highest
ranking corporate employee in Indiana with authority to bind
the corporation in real estate transactions; or
(B) who is a principal managing broker under
IC 25-34.1-4-3(b);
(2) cause each employee of the corporation who acts as a broker
or salesperson to be licensed; and
(3) submit the license fee established by the commission under
IC 25-1-8-2, an application setting forth the name and residence
address of each officer and the information prescribed in
subsection (a)(4), a copy of the certificate of incorporation, and a
certificate of good standing of the corporation issued by the
secretary of state.
(d) To obtain a broker license, a limited liability company must:
(1) if a member-managed limited liability company:
(A) have as members only individuals who are licensed
brokers; and
(B) have at least one (1) member who is:
(i) a resident of Indiana; or
(ii) a principal managing broker under IC 25-34.1-4-3(b);
(2) if a manager-managed limited liability company, have a
licensed broker:
(A) residing in Indiana who is either a manager of the
company or, if no manager resides in Indiana, the highest
ranking company officer or employee in Indiana with authority
to bind the company in real estate transactions; or
(B) who is a principal managing broker under
IC 25-34.1-4-3(b);
(3) cause each employee of the limited liability company who acts
as a broker or salesperson to be licensed; and
(4) submit the license fee established by the commission under
IC 25-1-8-2 and an application setting forth the information
prescribed in subsection (a)(4), together with:
(A) if a member-managed company, the name and residence
address of each member; or
(B) if a manager-managed company, the name and residence
address of each manager, or of each officer if the company has
officers.
(e) Licenses granted to partnerships, corporations, and limited
liability companies are issued, expire, are renewed, and are effective on
the same terms as licenses granted to individual brokers, except as
provided in subsection (h), and except that expiration or revocation of
the license of:
(1) any partner in a partnership or all individuals in a corporation
satisfying subsection (c)(1); or
(2) a member in a member-managed limited liability company or
all individuals in a manager-managed limited liability company
satisfying subsection (d)(2);
terminates the license of that partnership, corporation, or limited
liability company.
(f) Upon the applicant's compliance with the requirements of
subsection (a), (b), or (c), the commission shall issue the applicant a
broker license and an identification card which certifies the issuance
of the license and indicates the expiration date of the license. The
license shall be displayed at the broker's place of business. For at least
two (2) years after the issuance of a license, the license must be
assigned to a managing broker. An individual who applies for a
broker's license after June 30, 2014, must, during the first two (2)
years after the license is issued, take and pass at least thirty (30)
hours of postlicensing education focused on the practical matters
of real estate transactions instead of the continuing education
requirements under IC 25-34.1-9.
(g) Unless the license is renewed, a broker license expires, for
individuals, on a date specified by the licensing agency under
IC 25-1-6-4 and expires biennially three (3) years after the initial
expiration date. An applicant for renewal shall submit an application
in the manner prescribed by the board commission and pay the renewal
fee established by the commission under IC 25-1-8-2 on or before the
renewal date specified by the licensing agency. If the holder of a
license does not renew the license by the date specified by the licensing
agency, the license expires and becomes invalid without the board
commission taking any action.
(h) If the holder of a license under this section fails to renew the
license on or before the date specified by the licensing agency, the
license may be reinstated by the commission if the holder of the
license, not later than three (3) years after the expiration of the license,
meets the requirements of IC 25-1-8-6(c).
(i) If a license under this section has been expired for more than
three (3) years, the license may be reinstated by the commission if the
holder meets the requirements for reinstatement under IC 25-1-8-6(d).
(j) A partnership, corporation, or limited liability company may not
be a broker-salesperson broker except as authorized in IC 23-1.5. An
individual broker who associates as a broker-salesperson with a
principal managing broker shall immediately notify the commission of
the name and business address of the principal managing broker and
of any changes of principal managing broker that may occur. The
commission shall then change the address of the broker-salesperson
broker on its records to that of the principal managing broker.
SOURCE: IC 25-34.1-3-5; (12)SE0275.1.14. -->
SECTION 14. IC 25-34.1-3-5 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2014]: Sec. 5. (a) A resident of
another state, meeting the requirements of this chapter, may be
licensed.
(b) A nonresident salesperson or broker shall file with the
commission a written consent that any action arising out of the conduct
of the licensee's business in Indiana may be commenced in any county
of this state in which the cause of action accrues. The consent shall
provide that service of process may be made upon the commission, as
agent for the nonresident licensee, and that service in accordance with
the Indiana Rules of Trial Procedure subjects the licensee to the
jurisdiction of the courts in that county.
(c) The requirements of this section may be waived for individuals
of or moving from other jurisdictions if the following requirements are
met:
(1) The jurisdiction grants the same privilege to the licensees of
this state.
(2) The individual is licensed in that jurisdiction.
(3) The licensing requirements of that jurisdiction are
substantially similar to the requirements of this chapter.
(4) The applicant states that the applicant has studied, is familiar
with, and will abide by the statutes and rules of this state.
SOURCE: IC 25-34.1-3-6; (12)SE0275.1.15. -->
SECTION 15. IC 25-34.1-3-6 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2014]: Sec. 6. Each licensee and
each licensee's principal managing broker, if any, shall notify the
commission immediately of any change of name, name under which the
licensee transacts business, business address, or association.
SOURCE: IC 25-34.1-3-10; (12)SE0275.1.16. -->
SECTION 16. IC 25-34.1-3-10, AS AMENDED BY P.L.157-2006,
SECTION 73, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2014]: Sec. 10. (a) A salesperson licensed under section 3.1
of this chapter or a broker licensed under section 4.1 of this chapter
may apply for and receive an inactive license from the commission.
(b) An individual may not be granted an inactive license without the
approval of the commission if a disciplinary or suspension hearing is
pending against the individual.
(c) An individual with an inactive license:
(1) may not perform an act that requires a salesperson or broker's
license;
(2) is not required to fulfill the continuing education requirements
under IC 25-34.1-9;
(3) is required to pay any fees that a licensee is required to pay;
and
(4) must fulfill the:
(A) requirements under IC 25-34.1-9-11 for the current
licensing period; or
(B) postlicensing education requirements as described in
subsection (f);
whichever is applicable, before applying for reactivation of the
individual's license.
(d) Notwithstanding IC 25-34.1-9-11(2), the commission may adopt
rules under IC 4-22-2 establishing continuing education requirements
for individuals who have reactivated a license with less than twelve
(12) months remaining in the licensing period.
(e) Beginning July 1, 2014, a person who was licensed as a
salesperson under section 3.1 of this chapter, before its repeal, and
who applies for reactivation must complete the twenty-four (24)
hour course required to become a broker under this article. The
course described under this subsection may count toward the
person's continuing education requirements.
(f) Beginning June 30, 2014, a broker licensed after June 30,
2014, who becomes inactive before completing the thirty (30) hour
postlicensing education required under section 4.1(f) of this
chapter, must complete the thirty (30) hours of postlicensure
education before reactivation of the broker's license.
SOURCE: IC 25-34.1-3-10.5; (12)SE0275.1.17. -->
SECTION 17. IC 25-34.1-3-10.5 IS ADDED TO THE INDIANA
CODE AS A NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2014]: Sec. 10.5. (a) For purposes of this
section, "referral status" means that the commission has granted
an applicant of a license a waiver under IC 25-34.1-9-19 as a result
of the applicant meeting the requirements under
IC 25-34.1-9-19(2).
(b) For purposes of this section, "salesperson" has the meaning
set forth in IC 25-34.1-1-2(5) (before that subdivision was
removed).
(c) For purposes of this section, "salesperson's license" means
a license issued under section 3.1 of this chapter (before its repeal).
(d) Subject to subsection (e), the following applies to an
individual whose salesperson's license is in referral status on June
30, 2014:
(1) On July 1, 2014, the salesperson's license of the individual
becomes a broker's license under this article.
(2) The individual may continue to make referrals to a
licensed broker after June 30, 2014.
(e) An individual whose salesperson's license becomes a broker's
license under subsection (d) may only make referrals to a licensed
broker and may not perform any other act that requires a broker's
license under this article unless the individual does all of the
following:
(1) Completes at least twenty-four (24) hours of the education
described in IC 25-34.1-5-5.
(2) Meets the requirements to be a licensed broker under
IC 25-34.1-3-4.1.
(3) Attests to the commission that the individual has
completed the twenty-four (24) hours of education described
in subdivision (1).
(f) If:
(1) a broker is licensed under this article after June 30, 2014;
and
(2) the broker's license is placed on referral status before the
broker completes the thirty (30) hours of postlicensing
education required under section 4.1(f) of this chapter;
the broker must complete the thirty (30) hours of postlicensing
education before the broker's license may be moved from referral
status and the broker may perform acts that require a broker's
license under this article beyond making referrals to licensed
brokers.
SOURCE: IC 25-34.1-3-11; (12)SE0275.1.18. -->
SECTION 18. IC 25-34.1-3-11 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2014]: Sec. 11. (a) An out-of-state
commercial broker, for a fee, commission, or other valuable
consideration, or in expectation, or upon the promise of receiving or
collecting a fee, commission, or other valuable consideration, may
perform acts with respect to commercial real estate that require a
license under this article without a license under this article, if the
out-of-state commercial broker does all of the following:
(1) Works in cooperation with a broker who holds a valid license
issued under this article.
(2) Enters into a written agreement with the broker described in
subdivision (1) that includes the terms of cooperation and
compensation and a statement that the out-of-state commercial
broker and the broker's agents will comply with the laws of this
state.
(3) Furnishes the broker described in subdivision (1) with a copy
of the out-of-state commercial broker's current certificate of good
standing or other proof of a license in good standing from a
jurisdiction where the out-of-state commercial broker maintains
a valid real estate license.
(4) Files an irrevocable written consent with the commission that
legal actions arising out of the conduct of the out-of-state
commercial broker or the broker's agents may be commenced
against the out-of-state commercial broker in a court with
jurisdiction in a county in Indiana in which the cause of action
accrues.
(5) Advertises in compliance with state law and includes the
name of the broker described in subdivision (1) in all advertising.
(6) Deposits all escrow funds, security deposits, and other money
received by either the out-of-state commercial broker or the
broker described in subdivision (1) in a trust account maintained
by the broker described in subdivision (1).
(7) Deposits all documentation required by this section and
records and documents related to the transaction with the broker
described in subdivision (1).
(b) The broker described in subsection (a)(1) shall retain the
documentation that is provided by the out-of-state commercial broker
as required under this section, and the records and documents related
to a transaction, for at least five (5) years.
(c) An out-of-state commercial salesperson may perform acts with
respect to commercial real estate that require a salesperson broker to
be licensed under this article without a license under this article if the
out-of-state commercial salesperson meets all of the following
requirements:
(1) The out-of-state commercial salesperson:
(A) is licensed with and works under the direct supervision of
the out-of-state commercial broker;
(B) provides the broker described in subsection (a)(1) with a
copy of the out-of-state commercial salesperson's current
certificate of good standing or other proof of a license in good
standing from the jurisdiction where the out-of-state
commercial salesperson maintains a valid real estate license in
connection with the out-of-state commercial broker; and
(C) collects money, including:
(i) commissions;
(ii) deposits;
(iii) payments;
(iv) rentals; or
(v) escrow funds;
only in the name of and with the consent of the out-of-state
commercial broker under whom the out-of-state commercial
salesperson is licensed.
(2) The out-of-state commercial broker described in subdivision
(1)(A) meets all of the requirements of subsection (a).
(d) A person licensed in a jurisdiction where there is not a legal
distinction between a real estate broker license and a real estate
salesperson license must meet the requirements of subsection (a)
before engaging in an act that requires a license under this article.
(e) (d) An out-of-state commercial broker or out-of-state
commercial salesperson acting under this section shall file a written
consent as provided in section 5(b) of this chapter.
SOURCE: IC 25-34.1-4-0.5; (12)SE0275.1.19. -->
SECTION 19. IC 25-34.1-4-0.5 IS ADDED TO THE INDIANA
CODE AS A NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2014]: Sec. 0.5. Except as provided in section
6 of this chapter, to become a managing broker, an individual
must:
(1) hold a broker's license for at least two (2) years; and
(2) take and pass at least twenty-four (24) hours of broker
management courses approved by the commission.
SOURCE: IC 25-34.1-4-1; (12)SE0275.1.20. -->
SECTION 20. IC 25-34.1-4-1 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2014]: Sec. 1. A
principal
managing broker is responsible under this article for the actions of any
associated salesperson and broker-salesperson. broker who is
associated with the managing broker. Any
principal managing
broker who maintains two (2) or more separate offices for associated
licensees shall notify the commission of the name and address of the
broker who manages each office.
SOURCE: IC 25-34.1-4-2; (12)SE0275.1.21. -->
SECTION 21. IC 25-34.1-4-2 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2014]: Sec. 2. Except as provided
in IC 23-1.5, a partnership broker, corporate broker, or limited liability
company broker may act only as a principal managing broker and shall
designate to the commission a licensed individual broker, who is a
partner or a corporate representative satisfying IC 25-34.1-3-4.1(c)(1)
or a member-managed limited liability company member or a
manager-managed limited liability company representative satisfying
IC 25-34.1-3-4.1(d)(2), to be primarily responsible to the commission
for its actions.
SOURCE: IC 25-34.1-4-3; (12)SE0275.1.22. -->
SECTION 22. IC 25-34.1-4-3 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2014]: Sec. 3. (a) Except as
provided in subsection (b), each individual who is a principal
managing broker or is designated by a partnership, corporation, or a
limited liability company pursuant to section 2 of this chapter shall be
a resident of Indiana.
(b) A nonresident:
(1) individual broker; or
(2) individual designated by a partnership, corporation, or limited
liability company under section 2 of this chapter;
may be a principal managing broker if all the licensees affiliated with
the broker, partnership, corporation, or limited liability company are
not residents of Indiana.
SOURCE: IC 25-34.1-4-4; (12)SE0275.1.23. -->
SECTION 23. IC 25-34.1-4-4 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2014]: Sec. 4. Notwithstanding
IC 23-1.5, the association of a salesperson or broker with a principal
managing broker, as provided by this article, creates an independent
contractor relationship unless otherwise specified by a written contract
entered into by the principal managing broker and the associated
salesperson or broker.
SOURCE: IC 25-34.1-4-5; (12)SE0275.1.24. -->
SECTION 24. IC 25-34.1-4-5, AS AMENDED BY P.L.114-2010,
SECTION 22, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2014]: Sec. 5. (a) Each
principal managing broker:
(1) shall keep in one (1) or more trust accounts (interest or
noninterest bearing) all funds belonging to others that come into
the possession of the
principal managing broker or of any
associated salesperson or broker-salesperson; broker whose
license the managing broker is holding; and
(2) shall clearly identify any account containing those funds as a
trust account. The trust accounts shall contain all earnest money
deposits, funds held for closing escrows, sale proceeds not yet
disbursed, and all other funds belonging to others.
(b) The principal managing broker shall not use any trust account
for the deposit of any personal funds or other business funds and shall
keep a detailed record of the funds and any interest accrued in each
trust account that identifies the amount of funds held for each
beneficiary. Any interest earned shall be held for the beneficiary.
(c) Upon the death or termination of a principal managing broker
or the expiration, revocation, or suspension of the principal managing
broker's license, the commission shall take custody of each trust
account and may appoint a successor trustee to protect and distribute
the proceeds of that account.
SOURCE: IC 25-34.1-4-6; (12)SE0275.1.25. -->
SECTION 25. IC 25-34.1-4-6 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2014]: Sec. 6. (a) In the event of
the death of an individual principal managing broker or the
termination of a partnership principal managing broker by the death
of a partner, a salesperson broker formerly associated with that
principal the managing broker may continue to carry out business
contracted for before the death or termination of the principal
managing broker, for a maximum period of ninety (90) days after the
death or termination. During that period, the salesperson broker shall
maintain a trust account as provided in section 5 of this chapter.
However, until associating with another principal managing broker,
the salesperson broker may not undertake any new business.
(b) Upon associating with a new principal managing broker, the
salesperson broker may conduct on behalf of the deceased or
terminated principal managing broker only that business which is
necessary to complete obligations assumed while associated with that
principal the managing broker. All other acts performed by the
salesperson broker shall be performed in association with the new
principal managing broker.
(c) Each broker-salesperson broker formerly associated with the
deceased or terminated principal managing broker becomes, upon the
death or termination of the principal managing broker, a principal
managing broker until the broker elects to act as a broker-salesperson
broker for another principal managing broker.
(d) This section applies only to matters of licensing and
responsibility under this article and does not affect the transfer of the
deceased principal managing broker's property interests as provided
by IC 29 and other laws of succession.
SOURCE: IC 25-34.1-4.5; (12)SE0275.1.26. -->
SECTION 26. IC 25-34.1-4.5 IS ADDED TO THE INDIANA
CODE AS A
NEW CHAPTER TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2012]:
Chapter 4.5. License Transition
Sec. 1. Beginning July 1, 2014, the commission may not issue a
new salesperson license under this article.
Sec. 2. An individual who holds a salesperson's license under
this article may not, after June 30, 2014, sell, buy, trade, exchange,
option, lease, rent, manage, list, or appraise real estate or negotiate
or offer to perform any of those acts in Indiana or with respect to
real estate situated in Indiana for consideration without a broker's
license under this article.
Sec. 3. To obtain a broker's license, an individual holding a
license as a salesperson on or after June 30, 2012, must:
(1) complete at least twenty-four (24) hours of education
described in IC 25-34.1-5-5 to be licensed as a broker; and
(2) except for the requirement under IC 25-34.1-3-4.1(a)(2),
meet the requirements to be licensed as a broker under
IC 25-34.1-3-4.1.
Sec. 4. Notwithstanding any other law concerning education or
continuing education for salespersons, a salesperson may obtain
the twenty-four (24) hours of commission approved education
required under section 3 of this chapter at any time after June 30,
2012, and before July 1, 2014.
Sec. 5. The commission shall issue a broker's license to a
licensed salesperson who meets the requirements under sections 3
and 4 of this chapter.
Sec. 6. For the period beginning July 1, 2012, and ending June
30, 2014, notwithstanding any other law concerning continuing
education, the twenty-four (24) hours of additional education
required under section 3 of this chapter may be used to meet the
continuing education requirement for a salesperson under
IC 25-34.1-9-11.
Sec. 7. An individual who is a principal broker on June 30, 2014,
becomes a managing broker on July 1, 2014.
Sec. 8. This chapter expires December 31, 2014.
SOURCE: IC 25-34.1-5-1; (12)SE0275.1.27. -->
SECTION 27. IC 25-34.1-5-1 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2014]: Sec. 1. No person shall
conduct, solicit or accept student enrollment for a broker or salesperson
course as prescribed in this chapter without approval of the course by
the commission.
SOURCE: IC 25-34.1-5-4; (12)SE0275.1.28. -->
SECTION 28. IC 25-34.1-5-4 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2014]: Sec. 4. (a) To obtain
approval of a broker or salesperson course, a school shall:
(1) provide the curriculum prescribed in section 5 of this chapter;
(2) have no more than thirty-five (35) students per instructor per
classroom;
(3) provide adequate educational facilities and supportive
personnel as is necessary to implement the purpose of this article;
(4) schedule not more than the maximum number of hours of
instruction established by the commission in any twenty-four (24)
hour period;
(5) administer at least two (2) written examinations during the
broker course and three (3) written examinations during the
salesperson course which are approved, and passing scores
established, by the commission;
(6) within fourteen (14) thirty (30) days of the end of each
course, submit to the commission the names and addresses of
those students who successfully complete the course;
(7) maintain records of students who successfully complete and
pass the course of study for a minimum of five (5) years or, in the
event the school should cease operation, the owner shall provide
a custodian acceptable to the commission to keep those records
and provide copies to students at the fee in effect when the school
ceases operation; and
(8) meet any other standards the commission may establish by
regulation.
(b) Any instruction conducted in a broker or salesperson office does
not apply to the minimum hour requirements of section 5 of this
chapter.
SOURCE: IC 25-34.1-5-5; (12)SE0275.1.29. -->
SECTION 29. IC 25-34.1-5-5 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2014]: Sec. 5. (a) The required
curriculum for salespersons shall consist of a total of at least forty (40)
hours of instruction and shall include the following subjects: Indiana
license law and professional standards, law of agency, contracts,
interests in real property, evidence of title, deeds, legal property
descriptions, mathematics, taxes, valuation of real property, financing,
listing contracts and purchase agreements, settlement procedures,
property management, government regulations, and planning and
zoning.
(b) The required curriculum for brokers shall consist of a total of at
least twenty-four (24) ninety (90) hours of instruction and shall include
the following subjects: principles, practices, Indiana license law and
professional standards, law of agency, contracts, financing, settlement
procedures, escrow responsibility, recordkeeping, government
regulations, and appraising.
SOURCE: IC 25-34.1-5-12; (12)SE0275.1.30. -->
SECTION 30. IC 25-34.1-5-12 IS ADDED TO THE INDIANA
CODE AS A NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2012]: Sec. 12. (a) The real estate education
advisory council established by IC 25-34.1-9-2 shall make
recommendations to the commission concerning the following:
(1) Requirements for sponsors of courses.
(2) Requirements for instructors to be used by sponsors in
providing courses.
(3) Requirements for the curricula for education courses
required under this article.
(4) Rules to implement this chapter.
(5) Other issues identified by the commission in implementing
this chapter.
(b) The commission shall approve all prelicensing courses.
(c) The commission may, with the advice of the council, approve
online education required for licensing under this article.
SOURCE: IC 25-34.1-6-2; (12)SE0275.1.31. -->
SECTION 31. IC 25-34.1-6-2, AS AMENDED BY P.L.84-2010,
SECTION 71, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2014]: Sec. 2. (a) A person who:
(1) performs the acts of a salesperson without a salesperson
license;
(2) (1) performs the acts of a broker without a broker license; or
(3) (2) conducts, or solicits or accepts enrollment of students for,
a course as prescribed in IC 25-34.1-3 without course approval;
commits a Class A infraction. Upon conviction for an offense under
this section, the court shall add to any fine imposed the amount of any
fee or other compensation earned in the commission of the offense.
Each transaction constitutes a separate offense.
(b) In all actions for the collection of a fee or other compensation for
performing acts regulated by this article, it must be alleged and proved
that, at the time the cause of action arose, the party seeking relief was
not in violation of this section.
(c) Each enforcement procedure established in this section and
IC 25-1-7-14 is supplemental to other enforcement procedures
established in this section.
SOURCE: IC 25-34.1-7-6; (12)SE0275.1.32. -->
SECTION 32. IC 25-34.1-7-6 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2014]: Sec. 6. Any broker
or
salesperson who is licensed or renews a license under this article after
December 31, 1987, and upon whom personal service cannot be made
with reasonable diligence shall be considered to have appointed the
commission as the licensee's agent for service of process for purposes
of actions filed under section 4 of this chapter for recovery from the
real estate recovery fund. Service of process under this section shall be
made as nearly as practicable in the manner prescribed by the Indiana
Rules of Trial Procedure for service on corporations.
SOURCE: IC 25-34.1-7-10; (12)SE0275.1.33. -->
SECTION 33. IC 25-34.1-7-10 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2014]: Sec. 10. If the commission
is required to make any payment from the real estate recovery fund in
settlement of a claim or toward the satisfaction of a judgment under
this chapter, the commission shall suspend the judgment debtor's
license and, if the judgment debtor is licensed under IC 25-34.1-3-3.1,
IC 25-34.1-3-4.1, the license of the individual designated broker, under
this article. The licensee is not eligible to be licensed again as either a
broker or a salesperson until the licensee has repaid in full the amount
paid from the real estate recovery fund with interest of twelve percent
(12%) per annum.
SOURCE: IC 25-34.1-8-7.5; (12)SE0275.1.34. -->
SECTION 34. IC 25-34.1-8-7.5, AS AMENDED BY P.L.77-2010,
SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2014]: Sec. 7.5. (a) The investigative fund is established to
provide funds for administering and enforcing the provisions of this
article, including investigating and taking enforcement action against
real estate fraud and real estate appraisal fraud. The fund shall be
administered by the attorney general and the professional licensing
agency.
(b) The expenses of administering the fund shall be paid from the
money in the fund. The fund consists of:
(1) money from a fee imposed upon licensed or certified
appraisers and real estate brokers
and salespersons under
IC 25-34.1-2-7 and IC 25-34.1-3-9.5;
(2) civil penalties deposited in the fund under IC 24-5-23.5-9(d);
(3) registration fees imposed on appraisal management companies
under IC 25-34.1-11-15; and
(4) civil penalties deposited under IC 25-34.1-11-17.
(c) The treasurer of state shall invest the money in the fund not
currently needed to meet the obligations of the fund in the same
manner as other public money may be invested.
(d) Except as otherwise provided in this subsection, money in the
fund at the end of a state fiscal year does not revert to the state general
fund. If the total amount in the investigative fund exceeds seven
hundred fifty thousand dollars ($750,000) at the end of a state fiscal
year after payment of all claims and expenses, the amount that exceeds
seven hundred fifty thousand dollars ($750,000) reverts to the state
general fund.
(e) Money in the fund is continually appropriated for use by the
attorney general and the licensing agency to administer and enforce the
provisions of this article and to conduct investigations and take
enforcement action against real estate and appraisal fraud under this
article. The attorney general shall receive five dollars ($5) of each fee
collected under IC 25-34.1-2-7 and IC 25-34.1-3-9.5, and the licensing
agency shall receive any amount that exceeds five dollars ($5) of each
fee collected under IC 25-34.1-2-7 and IC 25-34.1-3-9.5.
SOURCE: IC 25-34.1-9-3; (12)SE0275.1.35. -->
SECTION 35. IC 25-34.1-9-3 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2012]: Sec. 3. (a) The council
consists of five (5) members, three (3) of whom must be
recommended by the Indiana association of realtors and the
following members appointed by the commission.
(1) Three (3) members who represent residential real estate sales
practitioners.
(2) Three (3) members who represent other segments and
specialties of the real estate industry besides residential real estate
sales practitioners.
(3) One (1) member who represents real estate education.
(b) The commission shall appoint members from different
geographic areas of Indiana. Six (6) members of the council must be
members of Indiana real estate trade organizations.
SOURCE: IC 25-34.1-9-9; (12)SE0275.1.36. -->
SECTION 36. IC 25-34.1-9-9 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2012]: Sec. 9. (a) The council shall
make recommendations to the commission concerning the following:
(1) Requirements for sponsors of courses under this chapter.
(2) Requirements for instructors to be used by sponsors in
providing courses under this chapter.
(3) Requirements for the curricula in providing for postlicensing
and continuing education courses under this chapter.
(4) Rules to implement this chapter.
(5) Other issues identified by the commission to implement this
chapter.
(b) Notwithstanding IC 25-1-4, the commission shall approve all
postlicensing and continuing education courses.
(c) The commission may, with the advice of the council, approve
online education required for licensing.
SOURCE: IC 25-34.1-9-10; (12)SE0275.1.37. -->
SECTION 37. IC 25-34.1-9-10 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2014]: Sec. 10. Except for an
individual who has been granted an inactive license under
IC 25-34.1-3-10, an individual who is licensed as a real estate broker
under IC 25-34.1-3-4.1
or a salesperson under IC 25-34.1-3-3.1 must
complete the approved education requirement
before the end of each
renewal period. each year.
SOURCE: IC 25-34.1-9-11; (12)SE0275.1.38. -->
SECTION 38. IC 25-34.1-9-11 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2014]: Sec. 11. (a) The approved
education requirement is as follows:
(1) At least six (6) hours twelve (12) hours per year in any of the
following subjects as determined by the commission:
(A) License and escrow law.
(B) Anti-trust law.
(C) Civil rights law.
(D) Agency law.
(E) Listing contracts and purchase agreements.
(F) Ethics and professionals standards.
(G) Settlement procedures.
(H) Other courses approved by the commission.
(2) At least ten (10) hours of course work in any of the following
subjects as determined by the commission:
(A) (H) Appraising.
(B) (I) Property management.
(C) (J) Farm property management.
(D) (K) Commercial brokerage and leasing.
(E) (L) Financing.
(F) (M) Residential brokerage.
(G) (N) Land development.
(H) (O) Legislative issues affecting the real estate practice.
(I) (P) Other courses approved by the commission.
(b) An attorney in good standing licensed to practice law in Indiana
may satisfy the requirements of subsection (a) by completing the
number of hours required by subsection (a) in continuing legal
education courses in the subject matters listed in subsection (a).
(c) An individual who applies for a broker's license after June
30, 2014, must, during the first two (2) years after the license is
issued, take and pass at least thirty (30) hours of postlicensing
education focused on the practical matters of real estate
transactions instead of the continuing education requirements
under this chapter.
(d) For license renewal, a managing broker must complete at
least twelve (12) hours of continuing education each year. At least
four (4) hours of the continuing education must be dedicated to the
necessary business and management skills and legal knowledge
needed by a managing broker. The commission shall develop or
approve the continuing education courses for managing brokers.
SOURCE: IC 25-34.1-9-11.1; (12)SE0275.1.39. -->
SECTION 39. IC 25-34.1-9-11.1 IS ADDED TO THE INDIANA
CODE AS A NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2012]: Sec. 11.1. (a) Notwithstanding section
11 of this chapter, from July 1, 2013, until June 30, 2014, a real
estate broker licensed under IC 25-34.1-3-4.1, must complete eight
(8) hours of continuing education.
(b) This section expires July 1, 2014.
SOURCE: IC 25-34.1-9-14; (12)SE0275.1.40. -->
SECTION 40. IC 25-34.1-9-14 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2014]: Sec. 14. (a) The approval for
a sponsor for
(1) a salesperson's course expires December 31 each
odd-numbered year; and
(2) a broker's course expires December 31 each even-numbered
year.
(b) A sponsor must submit:
(1) a letter requesting renewal of approval; and
(2) the renewal fee;
at least thirty (30) days before a sponsor's approval expires.
SOURCE: IC 25-34.1-9-19; (12)SE0275.1.41. -->
SECTION 41. IC 25-34.1-9-19, AS AMENDED BY P.L.42-2011,
SECTION 58, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2014]: Sec. 19. The commission may grant an applicant a
waiver from the continuing education requirement for the renewal
period if the applicant meets one (1) of the following conditions:
(1) Was not able to fulfill the requirement due to a hardship that
resulted from any of the following:
(A) Service in the armed forces of the United States during a
substantial part of the renewal period.
(B) An incapacitating illness.
(C) Other circumstances determined by the commission.
(2) Has certified on approved forms to the commission the
following:
(A) That the applicant has an active license but will not
perform an act that requires a salesperson or broker's license.
(B) That the applicant is affiliated with a principal managing
broker for the sole purpose of making referrals to a licensed
salesperson or broker.
An individual granted a waiver under this subdivision may not
perform an act that requires a salesperson or broker's license until
the individual has fulfilled the same continuing education
requirements needed to reactivate an inactive license under
IC 25-34.1-3-10(c) and IC 25-34.1-3-10(d) and applicable
requirements under IC 25-34.1-3-10.5.
SOURCE: IC 25-34.1-10-6.8; (12)SE0275.1.42. -->
SECTION 42. IC 25-34.1-10-6.8 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2014]: Sec. 6.8. As used in this
chapter, "licensee" means an individual or entity issued a salesperson's
or broker's real estate license by the Indiana real estate commission.
SOURCE: IC 25-34.1-10-7.5; (12)SE0275.1.43. -->
SECTION 43. IC 25-34.1-10-7.5 IS REPEALED [EFFECTIVE
JULY 1, 2014]. Sec. 7.5. As used in this chapter, "managing broker"
means a broker who manages a branch office or who acts on behalf of
a principal broker.
SOURCE: IC 25-34.1-10-7.8; (12)SE0275.1.44. -->
SECTION 44. IC 25-34.1-10-7.8 IS REPEALED [EFFECTIVE
JULY 1, 2014]. Sec. 7.8. As used in this chapter, "principal broker"
means the individual broker (including the broker designated or
representative of a partnership, corporation, or limited liability
company) whom the Indiana real estate commission shall hold
responsible for the actions of licensees who are affiliated with the
individual broker.
SOURCE: IC 25-34.1-10-12.5; (12)SE0275.1.45. -->
SECTION 45. IC 25-34.1-10-12.5 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2014]: Sec. 12.5. (a) An individual
licensee affiliated with a
principal managing broker represents only
the client with which the licensee is working in an in-house agency
relationship. A client represented by an individual licensee affiliated
with a
principal managing broker is represented only by that licensee
to the exclusion of all other licensees. A
principal or managing broker
does not represent any party in such transactions unless the
principal
or managing broker has an agency relationship to personally represent
a client.
(b) A licensee who personally represents both the seller and buyer
or both the landlord and tenant in a real estate transaction is a limited
agent and is required to comply with the provisions of this chapter
governing limited agents.
(c) A licensee representing a client in an in-house agency
relationship owes the client duties and obligations set forth in this
chapter and shall not disclose material or confidential information
obtained from the client to other licensees, except to the
principal or
managing broker for the purpose of seeking advice or assistance for the
client's benefit.
(d) A
principal broker, managing broker and any affiliated licensee
shall take reasonable and necessary care to protect any material or
confidential information disclosed by a client to the client's in-house
agent.
(e) In all in-house agency relationships, a
principal broker,
managing broker and an individual licensee possess only actual
knowledge and information. There is no imputation of agency,
knowledge, or information among or between clients,
the principal
broker, the managing broker, and licensees.
SOURCE: IC 25-34.1-10-13; (12)SE0275.1.46. -->
SECTION 46. IC 25-34.1-10-13 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2014]: Sec. 13. (a) A principal
managing broker shall develop and enforce a written office policy that
identifies and describes the agency relationships that a licensee may
have with a seller, landlord, buyer, or tenant and that specifically
permits or rejects the practice of disclosed limited agency.
(b) At the beginning of an agency relationship, a licensee shall
disclose in writing the principal managing broker's written office
policy set forth in this section before the disclosure by the potential
seller, landlord, buyer, or tenant of any confidential information
specific to that potential seller, landlord, buyer, or tenant.
(c) Parties to a real estate transaction shall be advised whether
compensation will be shared with other principal managing brokers
who may represent other parties to the transaction whose interests are
different or even adverse.
(d) The payment of compensation does not create an agency
relationship between a licensee and a seller, landlord, buyer, or tenant.
SOURCE: IC 27-7-3-15.5; (12)SE0275.1.47. -->
SECTION 47. IC 27-7-3-15.5, AS AMENDED BY P.L.226-2011,
SECTION 22, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2014]: Sec. 15.5. (a) This section applies to the following
transactions:
(1) A mortgage transaction (as defined in IC 24-9-3-7(a)) that:
(A) is:
(i) a first lien purchase money mortgage transaction; or
(ii) a refinancing transaction; and
(B) is closed by a closing agent after December 31, 2009.
(2) A real estate transaction (as defined in IC 24-9-3-7(b)) that:
(A) does not involve a mortgage transaction described in
subdivision (1); and
(B) is closed by a closing agent (as defined in
IC 6-1.1-12-43(a)(2)) after December 31, 2011.
(b) For purposes of this subsection, a person described in this
subsection is involved in a transaction to which this section applies if
the person participates in or assists with, or will participate in or assist
with, a transaction to which this section applies. The department shall
establish and maintain an electronic system for the collection and
storage of the following information, to the extent applicable,
concerning a transaction to which this section applies:
(1) In the case of a transaction described in subsection (a)(1), the
name and license number (under IC 23-2-5) of each loan
brokerage business involved in the transaction.
(2) In the case of a transaction described in subsection (a)(1), the
name and license or registration number of any mortgage loan
originator who is:
(A) either licensed or registered under state or federal law as
a mortgage loan originator consistent with the Secure and Fair
Enforcement for Mortgage Licensing Act of 2008 (H.R. 3221
Title V); and
(B) involved in the transaction.
(3) The name and license number (under IC 25-34.1) of each:
(A)
principal managing broker; and
(B)
salesperson or broker-salesperson, broker if any;
involved in the transaction.
(4) The following information:
(A) The:
(i) name of; and
(ii) code assigned by the National Association of Insurance
Commissioners (NAIC) to;
each title insurance underwriter involved in the transaction.
(B) The type of title insurance policy issued in connection with
the transaction.
(5) The name and license number (under IC 27-1-15.6) of each
title insurance agency and agent involved in the transaction as a
closing agent (as defined in IC 6-1.1-12-43(a)(2)).
(6) The following information:
(A) The name and:
(i) license or certificate number (under IC 25-34.1-3-8) of
each licensed or certified real estate appraiser; or
(ii) license number (under IC 25-34.1) of each broker;
who appraises the property that is the subject of the
transaction.
(B) The name and registration number (under
IC 25-34.1-11-10) of any appraisal management company that
performs appraisal management services (as defined in
IC 25-34.1-11-3) in connection with the transaction.
(7) In the case of a transaction described in subsection (a)(1), the
name of the creditor and, if the creditor is required to be licensed
under IC 24-4.4, the license number of the creditor.
(8) In the case of a transaction described in subsection
(a)(1)(A)(i) or (a)(2), the name of the seller of the property that is
the subject of the transaction.
(9) In the case of a transaction described in subsection
(a)(1)(A)(i), the following information:
(A) The name of the buyer of the property that is the subject of
the transaction.
(B) The purchase price of the property that is the subject of the
transaction.
(C) The loan amount of the mortgage transaction.
(10) In the case of a transaction described in subsection (a)(2), the
following information:
(A) The name of the buyer of the property that is the subject of
the transaction.
(B) The purchase price of the property that is the subject of the
transaction.
(11) In the case of a transaction described in subsection
(a)(1)(A)(ii), the following information:
(A) The name of the borrower in the mortgage transaction.
(B) The loan amount of the refinancing.
(12) The:
(A) name; and
(B) license number, certificate number, registration number,
or other code, as appropriate;
of any other person that is involved in a transaction to which this
section applies, as the department may prescribe.
(c) The system established by the department under this section
must include a form that:
(1) is uniformly accessible in an electronic format to the closing
agent (as defined in IC 6-1.1-12-43(a)(2)) in the transaction; and
(2) allows the closing agent to do the following:
(A) Input information identifying the property that is the
subject of the transaction by lot or parcel number, street
address, or some other means of identification that the
department determines:
(i) is sufficient to identify the property; and
(ii) is determinable by the closing agent.
(B) Subject to subsection (d) and to the extent determinable,
input the applicable information described in subsection (b).
(C) Respond to the following questions, if applicable:
(i) "On what date did you receive the closing instructions
from the creditor in the transaction?".
(ii) "On what date did the transaction close?".
(D) Submit the form electronically to a data base maintained
by the department.
(d) Not later than the time of the closing, each person described in
subsection (b), other than a person described in subsection (b)(8),
(b)(9), (b)(10), or (b)(11), shall provide to the closing agent in the
transaction the person's:
(1) legal name; and
(2) license number, certificate number, registration number, or
NAIC code, as appropriate;
to allow the closing agent to comply with subsection (c)(2)(B). In the
case of a transaction described in subsection (a)(1), the person
described in subsection (b)(7) shall, with the cooperation of any person
involved in the transaction and described in subsection (b)(6)(A) or
(b)(6)(B), provide the information described in subsection (b)(6). In the
case of a transaction described in subsection (a)(1)(A)(ii), the person
described in subsection (b)(7) shall also provide the information
described in subsection (b)(11). A person described in subsection
(b)(3)(B) who is involved in the transaction may provide the
information required by this subsection for a person described in
subsection (b)(3)(A) that serves as the principal managing broker for
the person described in subsection (b)(3)(B). The closing agent shall
determine the information described in subsection (b)(8), (b)(9), and
(b)(10) from the HUD-1 settlement statement, or in the case of a
transaction described in subsection (a)(2), from the contract or any
other document executed by the parties in connection with the
transaction.
(e) Except for a person described in subsection (b)(8), (b)(9),
(b)(10), or (b)(11), a person described in subsection (b) who fails to
comply with subsection (d) is subject to a civil penalty of one hundred
dollars ($100) for each closing with respect to which the person fails
to comply with subsection (d). The penalty:
(1) may be enforced by the state agency that has administrative
jurisdiction over the person in the same manner that the agency
enforces the payment of fees or other penalties payable to the
agency; and
(2) shall be paid into the home ownership education account
established by IC 5-20-1-27.
(f) Subject to subsection (g), the department shall make the
information stored in the data base described in subsection (c)(2)(D)
accessible to:
(1) each entity described in IC 4-6-12-4; and
(2) the homeowner protection unit established under IC 4-6-12-2.
(g) The department, a closing agent who submits a form under
subsection (c), each entity described in IC 4-6-12-4, and the
homeowner protection unit established under IC 4-6-12-2 shall exercise
all necessary caution to avoid disclosure of any information:
(1) concerning a person described in subsection (b), including the
person's license, registration, or certificate number; and
(2) contained in the data base described in subsection (c)(2)(D);
except to the extent required or authorized by state or federal law.
(h) The department may adopt rules under IC 4-22-2, including
emergency rules under IC 4-22-2-37.1, to implement this section. Rules
adopted by the department under this subsection may establish
procedures for the department to:
(1) establish;
(2) collect; and
(3) change as necessary;
an administrative fee to cover the department's expenses in establishing
and maintaining the electronic system required by this section.
(i) If the department adopts a rule under IC 4-22-2 to establish an
administrative fee to cover the department's expenses in establishing
and maintaining the electronic system required by this section, as
allowed under subsection (h), the department may:
(1) require the fee to be paid:
(A) to the closing agent responsible for inputting the
information and submitting the form described in subsection
(c)(2); and
(B) by the borrower, the seller, or the buyer in the transaction;
(2) allow the closing agent described in subdivision (1)(A) to
retain a part of the fee collected to cover the closing agent's costs
in inputting the information and submitting the form described in
subsection (c)(2); and
(3) require the closing agent to pay the remainder of the fee
collected to the department for deposit in the title insurance
enforcement fund established by IC 27-7-3.6-1, for the
department's use in establishing and maintaining the electronic
system required by this section.
SOURCE: IC 32-21-14-2; (12)SE0275.1.48. -->
SECTION 48. IC 32-21-14-2, AS AMENDED BY HEA 1009-2012,
SECTION 208, IS AMENDED TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2014]: Sec. 2. (a) As used in this chapter,
"transfer fee" means a fee or charge that:
(1) is required under a transfer fee covenant; and
(2) is payable:
(A) upon the transfer of an interest in real property; or
(B) for the right to make or accept a transfer of an interest in
real property;
regardless of whether the fee or charge is in a fixed amount or is
determined as a percentage of the value of the property, of the purchase
price of the property, or of any consideration given for the transfer of
the property.
(b) The term does not include any of the following:
(1) Any consideration payable by the transferee to the transferor
for the interest in the real property being transferred, including
any consideration payable for a separate mineral estate and its
appurtenant surface access rights.
(2) Any commission to a real estate broker or salesperson licensed
under IC 25-34.1 payable:
(A) in connection with the transfer of an interest in real
property; and
(B) under an agreement between the real estate broker or
salesperson and the transferor or transferee.
(3) Any interest, charges, fees, or other amounts payable by a
borrower to a lender under a loan secured by a mortgage against
an interest in real property, including the following:
(A) Any fee payable to the lender for consenting to an
assumption of the loan or to a transfer of the property interest
subject to the mortgage.
(B) Any fees or charges payable to the lender for estoppel
letters or certificates.
(C) Any other consideration allowed by law and payable to the
lender in connection with the loan.
(4) Any rent, reimbursement, charge, fee, or other amount payable
by a lessee to a lessor under a lease, including any fee payable to
the lessor for consenting to an assignment, subletting,
encumbrance, or transfer of the lease.
(5) Any consideration payable to the holder of:
(A) an option to purchase an interest in real property; or
(B) a right of first refusal or first offer to purchase an interest
in real property;
for waiving, releasing, or not exercising the option or right upon
the transfer of the property interest to another person.
(6) Any tax, fee, charge, assessment, fine, or other amount
payable to or imposed by a governmental entity.
(7) Any fee, charge, assessment, fine, or other amount payable to:
(A) a homeowners association;
(B) a condominium association;
(C) a cooperative association;
(D) a mobile home association;
(E) another property owners association; or
(F) an agent representing an association described in clauses
(A) through (E);
under a covenant, law, or contract applicable to the association.
SOURCE: IC 32-28-12.5-2; (12)SE0275.1.49. -->
SECTION 49. IC 32-28-12.5-2, AS ADDED BY P.L.78-2006,
SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2014]: Sec. 2. As used in this chapter, "fees or commissions"
means compensation owed to a principal managing broker for
performing services requiring a license under IC 25-34.1-3-2.
SOURCE: IC 32-28-12.5-3; (12)SE0275.1.50. -->
SECTION 50. IC 32-28-12.5-3, AS ADDED BY P.L.78-2006,
SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2014]: Sec. 3. As used in this chapter, "principal broker"
"managing broker" has the meaning set forth in IC 25-34.1-1-2.
SOURCE: IC 32-28-12.5-5; (12)SE0275.1.51. -->
SECTION 51. IC 32-28-12.5-5, AS ADDED BY P.L.78-2006,
SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2014]: Sec. 5. A principal managing broker may have a lien
upon commercial real estate, or any interest in commercial real estate,
that is the subject of a purchase, a lease, or other conveyance to a buyer
or tenant, in the amount that the principal managing broker is due for
licensed services, including brokerage fees, consulting fees, and
management fees due the principal managing broker under a written
agreement, a contract, or another written instrument:
(1) signed by:
(A) the owner of an interest in the commercial real estate or by
the owner's authorized agent; or
(B) a prospective buyer or prospective tenant, or by the buyer's
or tenant's authorized agent; and
(2) entered into after June 30, 2006.
A lien under this chapter is available to the principal managing broker
named in the written agreement, contract, or other written instrument
signed by the owner, buyer, or tenant, or their respective agents, and
not to an employee or independent contractor of the principal
managing broker.
SOURCE: IC 32-28-12.5-6; (12)SE0275.1.52. -->
SECTION 52. IC 32-28-12.5-6, AS ADDED BY P.L.78-2006,
SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2014]: Sec. 6. (a) A lien under this chapter attaches to
commercial real estate or an interest in commercial real estate upon:
(1) the
principal managing broker being entitled to fees or
commissions under a written agreement, a contract, or another
instrument signed by the owner, buyer, or tenant of the
commercial real estate, or by an authorized agent of the owner,
buyer, or tenant; and
(2) except as provided in sections 8 and 9 of this chapter, the
principal managing broker recording a notice of lien in the office
of the recorder of the county in which the commercial real estate
or an interest in the commercial real estate is located:
(A) before the recording of the deed for the actual conveyance
or transfer of the commercial real estate against which the
broker is claiming a lien, if the principal managing broker
claims fees or commissions from the party conveying or
transferring an interest in the commercial real estate; or
(B) not later than ninety (90) days after the recording of the
deed or other instrument for the purchase or other conveyance
or transfer of the commercial real estate, if the principal
managing broker claims fees or commissions from the party
receiving a conveyance or transfer of an interest in the
commercial real estate.
(b) A lien under this chapter attaches on the date of the recording of
the notice of the lien under subsection (a)(2) and does not relate back
to the date of the written agreement, contract, or other written
instrument described in subsection (a)(1).
SOURCE: IC 32-28-12.5-7; (12)SE0275.1.53. -->
SECTION 53. IC 32-28-12.5-7, AS ADDED BY P.L.78-2006,
SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2014]: Sec. 7. (a) This section does not apply:
(1) to fees or commissions that arise from a lease, including fees
or commissions for a sale of the property, lease expansions, or
lease renewals;
(2) if a
principal managing broker's fees or commissions have
been paid in full; or
(3) if a
principal managing broker waives the notice requirements
of this section in writing.
(b) Not later than ten (10) days before the planned closing of a
transaction involving the sale of commercial real estate, the owner shall
notify the following persons of the date of the closing, the time of the
closing, the address of the closing, and of the name of the closing
agent, title company, or title insurance agent:
(1) One (1) or more
principal managing brokers to whom the
owner owes fees or commissions.
(2) The closing agent, title company, or title insurance agent
involved in the transaction.
Notice under this subsection shall be sent by registered or certified
mail, return receipt requested, or by another means of service
authorized by the Indiana trial rules that provides proof that the
addressee has received the notice.
(c) To exercise its rights under this chapter to file a lien after receipt
of the notice under subsection (b), the
principal managing broker must
notify the closing agent, title company, or title insurance agent at the
address in the notice of the amount of the fees or commissions owed
before the time of the closing stated in the notice.
(d) If the principal managing broker does not attend the closing of
a transaction involving the sale of commercial real estate, the owner
shall certify in writing at the closing, under the penalties of perjury:
(1) that:
(A) the owner has notified the principal managing broker in
accordance with subsection (b); and
(B) the principal managing broker received the notice; or
(2) that the principal managing broker has been paid in full.
SOURCE: IC 32-28-12.5-8; (12)SE0275.1.54. -->
SECTION 54. IC 32-28-12.5-8, AS ADDED BY P.L.78-2006,
SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2014]: Sec. 8. (a) This section applies to a transaction
involving the conveyance or transfer of commercial real estate in
which:
(1) payment to a principal managing broker is due in
installments; and
(2) a part of the installment payments is due only after the
conveyance or transfer of the commercial real estate involved in
the transaction.
(b) Subject to subsection (c), the principal managing broker may
record a notice of lien for those payments described in subsection
(a)(2) at any time after the transfer or conveyance, but not later than
ninety (90) days after the date on which the payment is due. A notice
of lien under this section is effective as a lien against the transferor's
interest in the commercial real estate only to the extent consideration
is still owed to the transferor by the transferee. However, the lien is
effective against the transferee's interest in the commercial real estate
without the limitation described in this subsection.
(c) A single claim for a lien recorded:
(1) before the transfer or conveyance of the commercial real
estate; and
(2) with respect to all payments due in installments;
is valid and enforceable with respect to payments due after the transfer
or conveyance. However, as payments or partial payments of fees or
commissions are received by the principal managing broker, the
principal managing broker shall, by providing partial releases with
respect to those payments, reduce the amount due the principal
managing broker under the notice of lien described in this subsection.
SOURCE: IC 32-28-12.5-9; (12)SE0275.1.55. -->
SECTION 55. IC 32-28-12.5-9, AS AMENDED BY P.L.1-2007,
SECTION 212, IS AMENDED TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2014]: Sec. 9. (a) Subject to subsection (b), in
the case of a lease of commercial real estate, including a sublease or an
assignment of a lease, the notice of a lien under this chapter must be
recorded not later than ninety (90) days after the tenant takes
possession of the leased premises. However, if:
(1) the transferor personally serves, on the principal managing
broker entitled to claim a lien, written notice of the intended
execution of the lease; and
(2) the notice described in subdivision (1) is served not later than
ten (10) days before the date of the intended execution of the
lease;
the principal managing broker's notice of lien must be recorded before
the date indicated in the notice described in subdivision (1) for the
execution of the lease. The lien attaches on the recording of the notice
of lien and does not relate back to the date of the written agreement,
contract, or written instrument under which the principal managing
broker is entitled to fees or commissions.
(b) As used in this subsection, "future fees or commissions" refers
to fees or commissions:
(1) other than those fees or commissions due to a principal
managing broker upon the execution of a lease under subsection
(a); or
(2) due to the principal managing broker upon the exercise of an
option to:
(A) expand the leased premises;
(B) renew or extend a lease; or
(C) purchase the commercial real estate;
under a written agreement, a contract, or another written instrument
signed by the owner or tenant of the commercial real estate. The
principal managing broker may record a memorandum of lien at any
time after execution of the lease or other written agreement, contract,
or written instrument that contains rights to future fees or commissions.
The principal managing broker shall record a notice of lien no later
than ninety (90) days after the occurrence of a condition for which
future fees or commissions are claimed, but may not file a notice of lien
against an owner's property if the tenant is the sole party liable for
payment of the future fees or commissions. Except as provided in
section 11(a) or 13(b) of this chapter, an action to foreclose a lien to
collect future fees or commissions must be commenced not later than
one (1) year after the recording of the notice of the lien. A
memorandum of lien recorded under this chapter must meet the
requirements of section 12(1)(A), 12(1)(B), 12(1)(C), 12(1)(E), 12(2),
12(3), and 12(4) of this chapter. A memorandum of lien shall not
constitute a lien against the real estate but shall provide notice of the
right to future fees or commissions.
(c) If:
(1) commercial real estate is sold or otherwise conveyed before
the date on which future fees or commissions are due; and
(2) the principal managing broker has recorded a valid
memorandum of lien or notice of lien before the sale or other
conveyance of the commercial real estate;
the purchaser or transferee is considered to have notice of and takes
title to the commercial real estate subject to the right to future fees or
commissions and, if applicable, notice of lien. However, if a principal
managing broker claiming future fees or commissions fails to record
a memorandum of lien or notice of lien for the future fees or
commissions before the recording of a deed conveying legal title to the
commercial real estate to the purchaser or transferee, the principal
managing broker may not claim a lien on the commercial real estate.
This subsection does not limit or otherwise affect claims or defenses a
principal managing broker or owner or any other party may have in
law or equity.
SOURCE: IC 32-28-12.5-10; (12)SE0275.1.56. -->
SECTION 56. IC 32-28-12.5-10, AS ADDED BY P.L.78-2006,
SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2014]: Sec. 10. A principal managing broker shall, not later
than ten (10) days after recording a notice of lien under this chapter,
personally serve or mail, by registered or certified mail, a copy of the
notice of lien to the owner of record of the commercial real estate, or
to the agent of the owner of record, at the address of the owner stated
in the written agreement, contract, or other written instrument on which
the claim for the lien is based. If the address of the owner or the
owner's agent is not stated, the principal managing broker shall
personally serve or mail, by registered or certified mail, a copy of the
notice of the lien to the address where real estate taxes are sent for the
commercial real estate on which the claim of lien is based. Mailing of
the copy of the notice of lien is effective when deposited in the United
States mail with postage prepaid. Personal service of the notice of the
lien is effective upon receipt by the owner or the agent of the owner of
record. A principal managing broker's lien is unenforceable if mailing
or service of the copy of notice of lien does not occur at the time and
in the manner required by this section.
SOURCE: IC 32-28-12.5-11; (12)SE0275.1.57. -->
SECTION 57. IC 32-28-12.5-11, AS ADDED BY P.L.78-2006,
SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2014]: Sec. 11. (a) The
principal managing broker claiming
the lien shall, not later than one (1) year after recording the notice of
the lien, commence proceedings to foreclose the lien. However, for
future fees or commissions payable over a period in excess of one (1)
year from the occurrence of a condition for which such future fees or
commissions are claimed, the commencement of the suit must be
within one (1) year of the latest date for which future fees or
commissions are due. A principal managing broker's failure to
commence proceedings within the time prescribed by this subsection
extinguishes the lien and a subsequent notice of lien may not be given
for the same claim, nor may that claim be asserted in any other
proceedings under this chapter.
(b) A principal managing broker claiming a lien based upon an
option or other right to purchase or lease commercial real estate shall,
not later than one (1) year after recording the notice of the lien,
commence proceedings to foreclose the lien. A principal managing
broker's failure to commence proceedings within the time prescribed
by this subsection extinguishes the lien and a subsequent notice of lien
may not be given for the same claim, nor may that claim be asserted in
any other proceedings under this chapter.
(c) The foreclosure of a lien recorded under this chapter shall be
conducted under the same rules and same procedures applicable to the
foreclosure of mortgages upon real estate. A complaint under this
section must contain:
(1) a brief statement of the written agreement, contract, or other
written instrument that is the basis for the lien;
(2) the date when the written agreement, contract, or other written
instrument was made;
(3) a description of the services performed by the principal
managing broker;
(4) the amount due and unpaid for the services described in
subdivision (3);
(5) a description of the commercial real estate subject to the
notice of lien; and
(6) other facts reasonably necessary to describe the rights of the
parties.
SOURCE: IC 32-28-12.5-12; (12)SE0275.1.58. -->
SECTION 58. IC 32-28-12.5-12, AS ADDED BY P.L.78-2006,
SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2014]: Sec. 12. A notice of lien recorded under this chapter
must:
(1) state:
(A) the name of the claimant;
(B) the name of the owner of the commercial real estate upon
which the lien is claimed;
(C) a legal description of the commercial real estate upon
which the lien is claimed;
(D) the amount for which the lien is claimed; and
(E) the license number of the principal managing broker's
license under IC 25-34.1;
(2) contain a statement that the information contained in the
notice is true and accurate to the knowledge of the signatory;
(3) be signed by the principal managing broker or by a person
authorized to sign on behalf of the principal managing broker;
and
(4) be verified.
SOURCE: IC 32-28-12.5-13; (12)SE0275.1.59. -->
SECTION 59. IC 32-28-12.5-13, AS ADDED BY P.L.78-2006,
SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2014]: Sec. 13. (a) If:
(1) a memorandum of lien or notice of lien has been recorded
with the office of the recorder of the appropriate county; and
(2) a condition occurs that would preclude the
principal
managing broker from receiving fees or commissions under the
terms of the written agreement, contract, or other written
instrument upon which the lien is based;
the
principal managing broker shall provide to the owner of record of
the commercial real estate, not later than ten (10) days after written
demand by the owner of record, a written release or satisfaction of the
memorandum of lien or notice of lien.
(b) Upon written demand:
(1) served by the owner, buyer, or tenant described in section 5 of
this chapter, or the authorized agent of the owner, buyer, or tenant
described in section 5 of this chapter, on the
principal managing
broker claiming a lien under this chapter; and
(2) requiring the
principal managing broker to:
(A) bring a suit to enforce the lien; or
(B) file an answer in a pending suit;
the
principal managing broker shall bring a suit or file an answer not
later than thirty (30) days after service of the demand. If the
principal
managing broker does not bring a suit or file an answer within the time
prescribed by this subsection, the lien is extinguished. The service of
a written demand under this subsection may be made by registered or
certified mail, return receipt requested, or by personal service.
(c) If:
(1) a memorandum of lien or notice of lien under this chapter has
been filed with the office of the recorder and the fees or
commissions upon which the lien is based have been paid to the
principal managing broker claiming the lien; or
(2) the principal managing broker fails to institute a suit to
enforce the lien within the time prescribed by this chapter;
the principal managing broker shall, not later than five (5) days after
receipt of a written demand from the owner, buyer, or tenant described
in section 5 of this chapter for a release or an acknowledgment of
satisfaction of the memorandum or lien, acknowledge satisfaction or
release of the memorandum or lien in writing.
SOURCE: IC 32-28-12.5-14; (12)SE0275.1.60. -->
SECTION 60. IC 32-28-12.5-14, AS ADDED BY P.L.78-2006,
SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2014]: Sec. 14. If the principal managing broker and the party
from whom fees or commissions are claimed under this chapter agree
to alternative dispute resolution, any claim under this chapter must be
heard and resolved in the forum agreed to by the parties. The court
before which a lien foreclosure proceeding is brought under this
chapter retains jurisdiction to enter judgment on the award or other
result made or reached under alternative dispute resolution proceedings
with respect to all parties to the foreclosure. The principal managing
broker's notice of lien remains of record and the foreclosure proceeding
shall be stayed during the pendency of the alternative dispute resolution
proceedings.
SOURCE: IC 32-28-12.5-16; (12)SE0275.1.61. -->
SECTION 61. IC 32-28-12.5-16, AS ADDED BY P.L.78-2006,
SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2014]: Sec. 16. Except for a waiver or release of a
memorandum or lien provided in consideration of payment of the fees
or commissions claimed by a principal managing broker under this
chapter, or except as otherwise provided in section 13 of this chapter,
any waiver of a principal managing broker's right to a lien on
commercial property under this chapter is void.
SOURCE: IC 32-28-12.5-18; (12)SE0275.1.62. -->
SECTION 62. IC 32-28-12.5-18, AS ADDED BY P.L.78-2006,
SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2014]: Sec. 18. If:
(1) a claim for a lien under this chapter has been filed with the
office of the recorder of the county in which commercial real
estate or any interest in commercial real estate is located; and
(2) an escrow account is established among:
(A) the one (1) or more parties allegedly responsible for
payment of the fees or commissions on which the lien is based;
(B) the
principal managing broker that filed the lien; and
(C) an independent third party as escrowee;
from the proceeds of the conveyance, or from any other source of
funds, in an amount that is at least one hundred ten percent
(110%) of the amount of the lien claimed under this chapter;
the lien against the real estate is extinguished and becomes a lien on
the funds contained in the escrow account. The establishment of an
escrow account described in this section does not constitute cause for
any party to refuse to close the transaction.
SOURCE: IC 32-28-12.5-19; (12)SE0275.1.63. -->
SECTION 63. IC 32-28-12.5-19, AS ADDED BY P.L.78-2006,
SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2014]: Sec. 19. (a) If any party, including a
principal
managing broker, buyer, or buyer's mortgagee suffers a pecuniary loss
as the result of an owner's violation of the notice or certification
provisions described in section 7 of this chapter, the party may bring a
civil action against the owner for the following:
(1) Actual damages.
(2) The costs of the action.
(3) Reasonable attorney's fees.
However, if the party establishes that the owner's violation of the notice
or certification provisions was fraudulent, a court may award the party
damages that do not exceed three (3) times actual damages.
(b) It is a defense to an action brought under this section that the
most recent address provided by the
principal managing broker to the
owner in the agreement, contract, or other written instrument, including
a written instrument described in section 5 of this chapter, was
incorrect, and as a result of the incorrect address, the principal broker
did not receive the owner's notice described in section 7(b) of this
chapter, and as a result the
principal managing broker failed to provide
the notice as required in section 7(c) of this chapter.
SEA 275 _ Concur
Figure
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