Subchapter B. GENERAL PROVISIONS


Sec.


35.201.    Definitions.
35.202.    Exclusions from the act.
35.203.    Fees.
35.204.    Accuracy and veracity of papers filed with the Commission.

§ 35.201. Definitions.

 The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:

   Accredited college—A college, university or institute of higher learning recognized by the Council for Higher Education Accreditation or the United States Secretary of Education.

   Act—The Real Estate Licensing and Registration Act (63 P. S. § §  455.101—455.902).

   Agency relationship—A fiduciary relationship between a broker or licensees employed by a broker and a consumer who becomes a principal.

   Associate broker—An individual broker who is employed by another broker.

   Branch office—Any fixed location in this Commonwealth, other than the main office, maintained by a broker or cemetery broker, devoted to the transaction of real estate business.

   Broker—An individual or entity holding either a standard or reciprocal license, that, for another and for a fee, commission or other valuable consideration, does one or more of the following:

     (i)   Negotiates with or aids a person in locating or obtaining for purchase, lease or acquisition of interest in real estate.

     (ii)   Negotiates the listing, sale, purchase, exchange, lease, time share and similarly designated interests, financing or option for real estate.

     (iii)   Manages real estate.

     (iv)   Represents himself or itself as a real estate consultant, counsellor or house finder.

     (v)   Undertakes to promote the sale, exchange, purchase or rental of real estate. This subparagraph does not apply to an individual or entity whose main business is that of advertising, promotion or public relations.

     (vi)   Undertakes to perform a comparative market analysis.

     (vii)   Attempts to perform one of the actions listed in subparagraphs (i)—(vi).

   Broker of record—The individual broker responsible for the real estate transactions of a partnership, association or corporation that holds a broker’s license.

   Builder-owner salesperson—An individual holding either a standard or reciprocal license, who is a full-time employee of a builder-owner of single- and multi-family dwellings located in this Commonwealth and who is authorized, for and on behalf of, the builder-owner, to do one or more of the following:

     (i)   List for sale, sell or offer for sale real estate of the builder-owner.

     (ii)   Negotiate the sale or exchange of real estate of the builder-owner.

     (iii)   Lease or rent, or offer to lease, rent or place for rent, real estate of the builder-owner.

     (iv)   Collect or offer, or attempt to collect, rent for real estate of the builder-owner.

   Bureau—The Bureau of Professional and Occupational Affairs of the Department.

   Buyer agent—A licensee who enters into an agency relationship with a buyer/tenant.

   Campground membership—An interest, other than in fee simple or by lease, which gives the purchaser the right to use a unit of real property for the purpose of locating a recreational vehicle, trailer, tent, tent trailer, pickup camper or other similar device on a periodic basis under a membership contract allocating use and occupancy rights between other similar users.

   Campground membership salesperson—An individual holding either a standard or reciprocal license, who, either as an employee or an independent contractor, sells or offers to sell campground memberships under the active supervision of a broker. A licensed broker, salesperson or time-share salesperson does not need to possess a campground membership salesperson’s license to sell campground memberships.

   Cemetery

     (i)   A place for the disposal or burial of deceased human beings, by cremation or in a grave, mausoleum, vault, columbarium or other receptacle.

     (ii)   The term does not include a private family cemetery.

   Cemetery associate broker—An individual cemetery broker employed by another cemetery broker or by a broker.

   Cemetery broker—An individual or entity holding either a standard or reciprocal license, that is engaged as, or carrying on the business or acting in the capacity of, a broker exclusively within the limited field or branch of business that applies to cemetery lots, plots and mausoleum spaces or openings.

   Cemetery company—An individual or entity that offers or sells to the public the ownership, or the right to use, a cemetery lot.

   Cemetery salesperson—An individual holding either a standard or reciprocal license, employed by a broker or cemetery broker exclusively to perform the duties of a cemetery broker.

   Commission—The State Real Estate Commission.

   Comparative market analysis—A written analysis, opinion or conclusion by a contracted buyer’s agent, transactional licensee or an actual or potential seller’s agent relating to the probable sale price of a specified piece of real estate in an identified real estate market at a specified time, offered either for the purpose of determining the asking/offering price for the property by a specific actual or potential consumer or for the purpose of securing a listing agreement with a seller.

   Consumer—An individual or entity who is the recipient of any real estate service.

   Credit—A period of 15 hours of instruction.

   Department—The Department of State of the Commonwealth.

   Designated agent—One or more licensees designated by the employing broker, with the consent of the principal, to act exclusively as the agent or agents for the principal to the exclusion of all other licensees within the broker’s employ.

   Distance education—Real estate instruction delivered in an independent or instructor-led format during which the student and the instruction are separated by distance and sometimes time.

   Dual agent—A licensee who acts as an agent for the buyer/tenant and seller/landlord in the same transaction.

   Hour of instruction—A period of at least 50 minutes.

   Independent learning—An interactive educational program, including computer-based technology courses, that provides no contact with an instructor.

   Initial interview—The first substantive discussion between a licensee and a consumer about the consumer’s real estate needs.

   Instructor-led learning—An interactive educational program, including a classroom or simulated classroom, that provides significant ongoing contact from the instructor to the participant during the learning process.

   Licensee—An individual or entity holding either a standard or reciprocal license, under the act. For purposes of the consumer notice in §  35.336(a)(relating to disclosure summary for the purchase or sale of residential or commercial real estate or for the lease of residential or commercial real estate when the licensee is working on behalf of the tenant), the term means a broker or salesperson.

   Listing broker—A broker who has entered into a written agreement with a seller/landlord to market property as a seller’s agent, dual agent or transaction licensee.

   Main office—The fixed location other than a branch office of the broker or cemetery broker in this Commonwealth or another state devoted to the transaction of real estate business.

   Manager of record—The individual rental listing referral agent responsible for the rental listing transactions of a partnership, association or corporation that holds a rental listing referral agent’s license.

   Nonexclusive buyer agency agreement—A nonexclusive agreement governed by a memorandum or contract wherein the buyer retains the right to employ multiple brokers to purchase or lease a property.

   Open listing agreement—A nonexclusive listing agreement governed by a memorandum or contract wherein the seller retains the right to employ multiple brokers to sell or lease a property.

   Principal—A consumer who has entered into an agency relationship with a broker or another licensee employed by the broker.

   Principal place of business—The fixed location of the broker or cemetery broker in the state where the licensee holds the equivalent of a standard license.

   Real estate—An interest or estate in land-whether corporeal or incorporeal, whether freehold or nonfreehold, whether the land is situated in this Commonwealth or elsewhere—including leasehold interests and time share and similarly designated interests.

   Real estate education provider—A person or institution who offers real estate education regardless of whether the learning is instructor-led or independent, excluding colleges, universities or institutes of higher learning accredited by the Middle States Association of Colleges and Secondary Schools or equivalent accreditation.

   Reciprocal license—A license issued to an individual or entity whose principal place of business for the provision of real estate services is outside of this Commonwealth and who holds a current license to provide real estate services from a state that either has executed a reciprocal agreement with the Commission or has qualifications for licensure which are substantially comparable to those required by the Commission.

   Rental listing referral agent

     (i)   An individual or entity that owns or manages a business which collects rental information for the purpose of referring prospective tenants to rental units or locations of rental units.

     (ii)   The term does not include an official or employee of a public housing authority that is created under State or Federal law.

   Salesperson—An individual holding either a standard or reciprocal license, who is employed by a broker to do one or more of the following:

     (i)   Sell or offer to sell real estate, or list real estate for sale.

     (ii)   Buy or offer to buy real estate.

     (iii)   Negotiate the purchase, sale or exchange of real estate.

     (iv)   Negotiate a loan on real estate.

     (v)   Lease or rent real estate, or offer to lease or rent real estate or to place real estate for rent.

     (vi)   Collect rent for the use of real estate, or offer or attempt to collect rent for the use of real estate.

     (vii)   Assist a broker in managing property.

     (viii)   Perform a comparative market analysis.

   Seller agent—A licensee who enters into an agency relationship with a seller/landlord.

   Standard license—A license, other than a reciprocal license, issued to an individual or entity who has fulfilled the education/experience and examination requirements of the act.

   Subagent—A licensee, not in the employ of the listing broker, who acts or cooperates with the listing broker in selling property as a seller’s/landlord’s agent and is deemed to have an agency relationship with the seller.

   Time share

     (i)   The right, however evidenced or documented, to use or occupy one or more units on a periodic basis according to an arrangement allocating use and occupancy rights of that unit or those units between other similar users. As used in this definition, the term ‘‘unit’’ is a building or portion thereof permanently affixed to real property and designed for separate occupancy or a campground membership or portion thereof designed for separate occupancy.

     (ii)   The term does not include a campground membership.

   Time-share salesperson—An individual who, either as an employee or an independent contractor, sells or offers to sell time shares.

   Transaction licensee—A licensee who, without entering into an agency relationship with the consumer, provides communication or document preparation services or performs other acts listed in the definition of ‘‘broker’’ or ‘‘salesperson.’’

Authority

   The provisions of this §  35.201 issued under the Real Estate Licensing and Registration Act (63 P. S. § §  455.101—455.902); amended under sections 402, 404, 404.1, 513, 602, 606—606.6 and 608—608.3 of the Real Estate Licensing and Registration Act (63 P. S. § §  455.402, 455.404, 455.404a, 455.513, 455.602, 455.606—455.606f and 455.608—455.608c); amended under sections 201, 501, 601, 602 and 604 of the Real Estate Licensing and Registration Act (63 P. S. § §  455.201, 455.501, 455.601, 455.602 and 455.604).

Source

   The provisions of this §  35.201 adopted February 24, 1989, effective February 25, 1989, 19 Pa.B. 781; amended June 10, 1994, effective June 11, 1994, 24 Pa.B. 2904; amended January 7, 2000, effective January 8, 2000, 30 Pa.B. 228; amended November 17, 2000, effective November 18, 2000, 30 Pa.B. 5954; amended March 29, 2002, effective March 30, 2002, 32 Pa.B. 1644; amended December 10, 2004, effective December 11, 2004, 34 Pa.B. 6530; corrected April 29, 2005, effective December 11, 2004, 35 Pa.B. 2630; amended August 19, 2005, effective August 20, 2005, 35 Pa.B. 4711; amended November 14, 2008, effective December 15, 2008, 38 Pa.B. 6282; amended December 21, 2012, effective December 22, 2012, 42 Pa.B. 7647. Immediately preceding text appears at serial pages (339406) to (339410).

Cross References

   This section cited in 49 Pa. Code §  35.271 (relating to examination for broker’s license); 49 Pa. Code §  35.272 (relating to examination for salesperson’s license); 49 Pa. Code §  35.273 (relating to examination for cemetery broker’s license); 49 Pa. Code §  35.275 (relating to examination for rental listing referral agent’s license); 49 Pa. Code §  35.308 (relating to relationship with educational institution); 49 Pa. Code §  35.341 (relating to approval of real estate education provider); 49 Pa. Code §  35.354 (relating to prohibited forms of advertising and solicitation); and 49 Pa. Code §  35.385 (relating to continuing education providers).

§ 35.202. Exclusions from the act.

 The following categories of individuals and entities are excluded from the act and this chapter:

   (1)  An owner of real estate with respect to property owned or leased by the owner. In the case of a corporation or partnership, this exclusion does not extend to more than five of the partnership’s partners or the corporation’s officers, nor to the other employes of the partnership or corporation.

   (2)  An employe of a public utility acting in the ordinary course of utility-related business under 66 Pa.C.S. § §  101—3315 (relating to the Public Utility Code), with respect to negotiating the purchase, sale or lease of real estate.

   (3)  An officer or employe of a partnership or corporation whose principal business is the discovery, extraction, distribution or transmission of energy or mineral resources, if the purchase, sale or lease of real estate is a common and necessary transaction in the conduct of the principal business.

   (4)  An attorney in fact who renders services under an executed and recorded power of attorney from an owner or lessor of real estate, if the power of attorney is not used to circumvent the intent of the act. The Commission will consider it a circumvention of the intent of the act for an owner or lessor of real estate to grant a power of attorney to a property manager for the sole purpose of avoiding the necessity of having the property managed by a real estate broker licensed under the act.

   (5)  An attorney-at-law who receives a fee from his client for rendering services within the scope of the attorney-client relationship and does not hold himself out as a real estate broker.

   (6)  A trustee in bankruptcy, administrator, executor, trustee or guardian who is acting under authority of a court order, will or trust instrument.

   (7)  An elected officer or director of a banking institution, savings institution, savings bank, credit union or trust company operating under applicable Federal or State statutes when only the real estate of the banking institution, savings institution, savings bank, credit union or trust company is involved.

   (8)  An officer or employe of a cemetery company who, as an incidental part of his principal duties and without remuneration therefore, shows lots in the company’s cemetery to persons for use as family burial lots and who accepts deposits on the lots for a representative of the cemetery company legally authorized to sell them.

   (9)  A cemetery company or cemetery owned or controlled by a bona fide church or religious congregation or fraternal organization or by an association created by a bona fide church or religious organization or fraternal organization.

   (10)  An auctioneer licensed under The Auctioneers’ License Act (63 P. S. § §  701—732) (Repealed) or The Auctioneer and Auction Licensing Act (63 P. S. § §  734.1—734.34) while performing authorized duties at a bona fide auction.

   (11)  An individual who is employed by the owner of multifamily residential dwellings to manage or maintain the dwellings and who is not authorized by the owner to enter into leases on the owner’s behalf, to negotiate terms and conditions of occupancy with current or prospective tenants, or to hold money belonging to the tenants other than on the owner’s behalf. So long as the owner retains authority to make decisions, the individual may show apartments and provide information on rental amounts, building rules and regulations and leasing determinations.

   (12)  An elected officer, director or employe of a banking institution, savings institution, savings bank, credit union or trust company operating under applicable Federal or State statutes when acting on behalf of the banking institution, savings institution, savings bank, credit union or trust company in performing appraisals or other evaluations of real estate in connection with a loan transaction.

Authority

   The provisions of this §  35.202 issued under the Real Estate Licensing and Registration Act (63 P. S. § §  455.101—455.902).

Source

   The provisions of this §  35.202 adopted February 24, 1989, effective February 25, 1989, 19 Pa.B. 781; amended June 10, 1994, effective June 11, 1994, 24 Pa.B. 2904. Immediately preceding text appears at serial pages (185623) to (185624).

§ 35.203. Fees.

 (a)  The following fees are charged by the Commission:

Review of qualifications of candidate for broker or cemetery broker  licensing examination …$40
Application for standard or reciprocal licensure of:
 (i) Broker, cemetery broker or rental listing referral agent…$75
 (ii) Branch office…$65
 (iii) Associate broker, salesperson, cemetery associate broker, builder-owner salesperson, time-share salesperson, campground membership salesperson, or broker of record, partner or officer for a partnership, association or corporation …$25
 (iv) Cemetery salesperson … $20
Application for registration of cemetery company…$25
Initial standard or reciprocal licensure for broker, cemetery broker,  branch office, rental listing referral agent, or broker of record,  partner or officer for a partnership, association or corporation…$94.50
Initial standard or reciprocal registration for cemetery company or  initial standard or reciprocal licensure for associate broker,  salesperson, cemetery associate broker, cemetery salesperson,  builder-owner salesperson, time-share salesperson or campground  membership salesperson…$72
Biennial renewal of standard or reciprocal license of broker, cemetery  broker, branch office, rental listing referral agent or broker of  record, partner or officer for a partnership, association or corporation…$126
Biennial renewal of cemetery company registration or standard or  reciprocal license of associate broker, salesperson, cemetery  associate broker, cemetery salesperson or campground membership  salesperson…$96
Biennial renewal of cemetery company registration or standard or  reciprocal license of associate broker, salesperson, cemetery  associate broker, cemetery salesperson, campground membership  salesperson, builder-owner salesperson or time-share salesperson…$64
Registration of promotional real estate…$120
Annual renewal of registration of promotional real estate…$113
Approval of real estate education provider…$120
Reinspection of real estate education provider after first failure…$65
Annual renewal of approval of real estate education provider …$375 plus $15

for each satellite

location, course

and instructor

Change of name or office location of broker, cemetery broker or  rental listing referral agent… $75
Change of name or address for cemetery company or change of  employer, change of employer’s name or change of employer’s  address for associate broker, cemetery associate broker, salesperson,  cemetery salesperson, builder-owner salesperson, time-share  salesperson, campground membership salesperson, or broker of  record, partner or officer for a partnership, association or corporation…$20
Reinspection after failure for change of name or office location of  broker, cemetery broker or rental listing referral agent…$55
Change of ownership or directorship of real estate education provider…$75
Change of name of real estate education provider…$45
Change of location of real estate education provider…$70
Addition of satellite location or instructor for real estate education  provider …$20
Addition of course for real estate education provider…$25
Certification of current status of standard or reciprocal licensure,  registration or approval…$15
Certification of history of standard or reciprocal licensure, registration  or approval…$40
Duplicate standard or reciprocal license…$5
Late renewal of standard or reciprocal license …In addition to the prescribed

renewal fee, $5 for each

month or part of the month

beyond the renewal date


Authority

   The provisions of this §  35.203 issued under the Real Estate Licensing and Registration Act (63 P. S. § §  455.101—455.902); amended under sections 201, 402, 403, 404, 404.1, 407, 501, 513, 601, 602 and 604 of the Real Estate Licensing and Registration Act (63 P. S. § §  455.201, 455.402, 455.403, 455.404, 455.404.1, 455.407, 455.501, 455.513, 455.601, 455.602 and 455.604); and section 812.1 of The Administrative Code of 1929 (71 P. S. §  279.3a).

Source

   The provisions of this §  35.203 adopted February 24, 1989, effective February 25, 1989, 19 Pa.B. 781; amended July 31, 1992, effective August 1, 1992, except for the amendment relating to the biennial renewal fees for real estate licensees, which takes effect on, and be retroactive to, May 1, 1992, 22 Pa.B. 3984; amended November 5, 1993, effective upon publication and apply retroactively for July 1, 1993, 23 Pa.B. 5304; amended May 20, 1994, effective June 1, 1994, 24 Pa.B. 2613; amended August 14, 1998, effective July 1, 1998, 28 Pa.B. 3938; amended May 26, 2000, effective May 27, 2000, 30 Pa.B. 2586; amended September 3, 2004, effective September 4, 2004, 34 Pa.B. 4883; amended December 10, 2004, effective December 11, 2004, 34 Pa.B. 6530; amended August 19, 2005, effective August 20, 2005, 35 Pa.B. 4711; amended December 2, 2005, effective December 3, 2005, 35 Pa.B. 6532; amended August 20, 2010, effective August 21, 2010, 40 Pa.B. 4759. Immediately preceding text appears at serial pages (312816) and (315855) to (315856).

Cross References

   This section cited in 49 Pa. Code §  35.221 (relating to general requirements); 49 Pa. Code §  35.243 (relating to licensure of branch office); 49 Pa. Code §  35.271 (relating to examination for broker’s license); 49 Pa. Code §  35.273 (relating to examination for limited broker’s license); 49 Pa. Code §  35.341 (relating to approval of real estate education provider); and 49 Pa. Code §  35.343 (relating to renewal of real estate education provider approval).

§ 35.204. Accuracy and veracity of papers filed with the Commission.

 (a)  An application, statement, character reference or other paper that is required to be filed by, or on behalf of, an applicant for examination, licensure, registration or approval under the act or this chapter will be subject to investigation by the Commission to confirm its accuracy and truthfulness.

 (b)  An applicant’s knowing failure to provide accurate and truthful information in the application, or in the statements and papers that accompany the application, will be grounds for the Commission’s denial of the application.

 (c)  A licensee’s knowing failure to provide accurate and truthful information in connection with an application for examination, licensure, registration or approval under the act or this chapter will be grounds for disciplinary action against the licensee.

Authority

   The provisions of this §  35.204 issued under the Real Estate Licensing and Registration Act (63 P. S. § §  455.101—455.902).

Source

   The provisions of this §  35.204 adopted February 24, 1989, effective February 25, 1989, 19 Pa.B. 781.



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