61-2f-401. Grounds for disciplinary action. The following acts are unlawful and grounds for disciplinary action for a person licensed or required to be licensed under this chapter:
(1)
Attorney's Note
Under the Utah Code, punishments for crimes depend on the classification. In the case of this section:
employed or engaged as an independent contractor by or on behalf of a principal broker to perform an act described in Subsection (20) for valuable consideration; and
Branch broker: means an associate broker who manages a principal broker's branch office under the supervision of the principal broker. See Utah Code 61-2f-102
Branch office: means a principal broker's real estate brokerage office that is not the principal broker's main office. See Utah Code 61-2f-102
Commission: means the Real Estate Commission established under this chapter. See Utah Code 61-2f-102
Corporation: A legal entity owned by the holders of shares of stock that have been issued, and that can own, receive, and transfer property, and carry on business in its own name.
Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
Fiduciary: A trustee, executor, or administrator.
Foreclosure: A legal process in which property that is collateral or security for a loan may be sold to help repay the loan when the loan is in default. Source: OCC
Foreclosure rescue: means , for compensation or with the expectation of receiving valuable consideration, to:
(a)
engage, or offer to engage, in an act that:
(i)
the person represents will assist a borrower in preventing a foreclosure; and
(ii)
relates to a transaction involving the transfer of title to residential real property; or
(b)
as an employee or agent of another person:
(i)
solicit, or offer that the other person will engage in an act described in Subsection (16)(a); or
(ii)
negotiate terms in relationship to an act described in Subsection (16)(a). See Utah Code 61-2f-102
Fraud: Intentional deception resulting in injury to another.
Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
Lien: A claim against real or personal property in satisfaction of a debt.
Loan modification assistance: means , for compensation or with the expectation of receiving valuable consideration, to:
(a)
act, or offer to act, on behalf of a person to:
(i)
obtain a loan term of a residential mortgage loan that is different from an existing loan term including:
(A)
an increase or decrease in an interest rate;
(B)
a change to the type of interest rate;
(C)
an increase or decrease in the principal amount of the residential mortgage loan;
(D)
a change in the number of required period payments;
(E)
an addition of collateral;
(F)
a change to, or addition of, a prepayment penalty;
(G)
an addition of a cosigner; or
(H)
a change in persons obligated under the existing residential mortgage loan; or
(ii)
substitute a new residential mortgage loan for an existing residential mortgage loan; or
(b)
as an employee or agent of another person:
(i)
solicit, or offer that the other person will engage in an act described in Subsection (17)(a); or
(ii)
negotiate terms in relationship to an act described in Subsection (17)(a). See Utah Code 61-2f-102
Main office: means the address which a principal broker designates with the division as the principal broker's primary brokerage office. See Utah Code 61-2f-102
Mortgage: The written agreement pledging property to a creditor as collateral for a loan.
Nolo contendere: No contest-has the same effect as a plea of guilty, as far as the criminal sentence is concerned, but may not be considered as an admission of guilt for any other purpose.
Plea: In a criminal case, the defendant's statement pleading "guilty" or "not guilty" in answer to the charges, a declaration made in open court.
Principal broker: means an individual who is licensed or required to be licensed as a principal broker under this chapter who:
(a)
sells or lists for sale real estate, including real estate being sold as part of a foreclosure rescue, or a business opportunity with the expectation of receiving valuable consideration;
(b)
buys, exchanges, or auctions real estate, an option on real estate, a business opportunity, or an improvement on real estate with the expectation of receiving valuable consideration;
(c)
advertises, offers, attempts, or otherwise holds the individual out to be engaged in the business described in Subsection (20)(a) or (b);
(d)
is employed by or on behalf of the owner of real estate or by a prospective purchaser of real estate and performs an act described in Subsection (20)(a), whether the individual's compensation is at a stated salary, a commission basis, upon a salary and commission basis, or otherwise;
(e)
with the expectation of receiving valuable consideration, manages property owned by another person;
(f)
advertises or otherwise holds the individual out to be engaged in property management;
(g)
with the expectation of receiving valuable consideration, assists or directs in the procurement of prospects for or the negotiation of a transaction listed in Subsections (20)(a) and (e);
(h)
except for a mortgage lender, title insurance producer, or an employee of a mortgage lender or title insurance producer, assists or directs in the closing of a real estate transaction with the expectation of receiving valuable consideration;
(i)
engages in foreclosure rescue; or
(j)
advertises, offers, attempts, or otherwise holds the person out as being engaged in foreclosure rescue. See Utah Code 61-2f-102
Real property: Land, and all immovable fixtures erected on, growing on, or affixed to the land.
Sales agent: means an individual who is:
(a)
affiliated with a principal broker, either as an independent contractor or an employee as provided in Section 61-2f-303, to perform for valuable consideration an act described in Subsection (20); and
Settlement: Parties to a lawsuit resolve their difference without having a trial. Settlements often involve the payment of compensation by one party in satisfaction of the other party's claims.
State: when applied to the different parts of the United States, includes a state, district, or territory of the United States. See Utah Code 68-3-12.5
Subpoena: A command to a witness to appear and give testimony.
for a principal broker, paying or offering to pay a sales agent or associate broker who is not affiliated with the principal broker at the time the sales agent or associate broker earned the compensation;
(7)
being incompetent to act as a principal broker, associate broker, or sales agent in such manner as to safeguard the interests of the public;
(8)
failing to voluntarily furnish a copy of a document to the parties before and after the execution of a document;
(9)
failing to keep and make available for inspection by the division a record of each transaction, including:
(a)
the names of buyers and sellers or lessees and lessors;
(b)
the identification of real estate;
(c)
the sale or rental price;
(d)
money received in trust;
(e)
agreements or instructions from buyers and sellers or lessees and lessors; and
(f)
any other information required by rule;
(10)
failing to disclose, in writing, in the purchase, sale, or rental of real estate, whether the purchase, sale, or rental is made for that person or for an undisclosed principal;
(11)
regardless of whether the crime is related to the business of real estate:
(a)
be convicted of:
(i)
a felony; or
(ii)
any of the following involving fraud, misrepresentation, theft, or dishonesty:
(A)
a class A misdemeanor;
(B)
a class B misdemeanor; or
(C)
a criminal offense comparable to a class A or class B misdemeanor;
(b)
plead guilty or nolo contendere to:
(i)
a felony; or
(ii)
any of the following involving fraud, misrepresentation, theft, or dishonesty:
(A)
a class A misdemeanor;
(B)
a class B misdemeanor; or
(C)
a criminal offense comparable to a class A or class B misdemeanor;
(c)
enter into a plea in abeyance agreement in relation to:
(i)
a felony; or
(ii)
any of the following involving fraud, misrepresentation, theft, or dishonesty:
(A)
a class A misdemeanor;
(B)
a class B misdemeanor; or
(C)
a criminal offense comparable to a class A or class B misdemeanor;
(12)
advertising the availability of real estate or the services of a licensee in a false, misleading, or deceptive manner;
(13)
in the case of a principal broker or a branch broker, failing to exercise active and reasonable supervision, as the commission may define by rule made in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, over the activities of the principal broker’s or branch broker’s licensed or unlicensed staff;
(14)
violating or disregarding:
(a)
this chapter;
(b)
an order of the commission; or
(c)
the rules adopted by the commission and the division;
(15)
breaching a fiduciary duty owed by a licensee to the licensee’s principal in a real estate transaction;
(16)
any other conduct which constitutes dishonest dealing;
(17)
having one of the following suspended, revoked, surrendered, or cancelled on the basis of misconduct in a professional capacity that relates to character, honesty, integrity, or truthfulness:
(a)
a real estate license, registration, or certificate issued by another jurisdiction; or
(b)
another license, registration, or certificate to engage in an occupation or profession issued by this state or another jurisdiction;
(18)
failing to respond to a request by the division in an investigation authorized under this chapter within 10 days after the day on which the request is served, including:
(a)
failing to respond to a subpoena;
(b)
withholding evidence; or
(c)
failing to produce documents or records;
(19)
in the case of a dual licensed title licensee as defined in Section 31A-2-402:
(a)
providing a title insurance product or service without the approval required by Section 31A-2-405; or
(b)
knowingly providing false or misleading information in the statement required by Subsection 31A-2-405(2);
(20)
violating an independent contractor agreement between a principal broker and a sales agent or associate broker as evidenced by a final judgment of a court;
engaging in an act of foreclosure rescue without entering into a written agreement specifying what one or more acts of foreclosure rescue will be completed;
(c)
inducing a person who is at risk of foreclosure to hire the licensee to engage in an act of foreclosure rescue by:
(i)
suggesting to the person that the licensee has a special relationship with the person’s lender or loan servicer; or
(ii)
falsely representing or advertising that the licensee is acting on behalf of:
(A)
a government agency;
(B)
the person’s lender or loan servicer; or
(C)
a nonprofit or charitable institution; or
(d)
recommending or participating in a foreclosure rescue that requires a person to:
(i)
transfer title to real estate to the licensee or to a third-party with whom the licensee has a business relationship or financial interest;
(ii)
make a mortgage payment to a person other than the person’s loan servicer; or
(iii)
refrain from contacting the person’s:
(A)
lender;
(B)
loan servicer;
(C)
attorney;
(D)
credit counselor; or
(E)
housing counselor;
(23)
taking or removing from the premises of a main office or a branch office, or otherwise limiting a real estate brokerage’s access to or control over, a record that:
(a)
(i)
the real estate brokerage’s licensed staff, unlicensed staff, or affiliated independent contractor prepared; and
(ii)
is related to the business of:
(A)
the real estate brokerage; or
(B)
an associate broker, a branch broker, or a sales agent of the real estate brokerage; or
(b)
is related to the business administration of the real estate brokerage;
(24)
as a principal broker, placing a lien on real property, unless authorized by law;
(25)
as a sales agent or associate broker, placing a lien on real property for an unpaid commission or other compensation related to real estate brokerage services; or
(26)
failing to timely disclose to a buyer or seller an affiliated business arrangement, as defined in Section 31A-23a-1001, in accordance with the federal Real Estate Settlement Procedures Act, 12 U.S.C. § 2601 et seq. and any rules made thereunder.
