CHAPTER ONE: BOARD REGULATIONS...

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1 Table of Contents CHAPTER ONE: BOARD REGULATIONS... 3 PLACE OF BUSINESS... 3 MAINTENANCE OF LICENSE... 4 MAINTENANCE AND MANAGEMENT OF ESCROW ACCOUNTS... 4 Disbursement of Escrow Funds... 5 Lease Transactions: Security Deposits... 5 Lease Transactions: Rent or Escrow Fund Advances... 5 Receiving Commission... 5 Other Escrow Funds Issues... 5 IMPROPER MAINTENANCE OF ESCROW FUNDS... 6 MAINTENANCE AND MANAGEMENT OF FINANCIAL RECORDS... 7 IMPROPER RECORD KEEPING... 7 ADVERTISING... 7 Online Advertising... 8 Prohibited Advertising Actions... 9 DISCLOSURE OF INTEREST... 9 DISCLOSURE OF BROKERAGE RELATIONSHIPS... 9 PROVISION OF RECORDS TO THE BOARD RESPONSE TO INQUIRY OF THE BOARD UNWORTHINESS AND INCOMPETENCE CONFLICTS OF INTEREST IMPROPER BROKERAGE COMMISSIONS IMPROPER DEALING MISREPRESENTATIONS / OMISSIONS DELIVERY OF INSTRUMENTS PRINCIPAL AND SUPERVISING BROKER S RESPONSIBILITY FOR ACTS OF LICENSEES AND EMPLOYEES EFFECT OF DISCIPLINARY ACTION OR SUBORDINATE LICENSEES EDUCATION REQUIREMENTS RECENT CHANGES TO REAL ESTATE LAWS CHAPTER TWO: THE PROPERTY OWNERS ASSOCIATION AND CONDOMINIUM ACTS THE PROPERTY OWNERS ASSOCIATION ACT Disclosure Contents of the Disclosure Packet Delivery Requirements Disclosure Packet Exceptions Failure to Deliver the Disclosure Packet Sales Due to a Lien For Assessments Notice of Sale Selling the Lot by Nonjudicial Foreclosure THE CONDOMINIUM ACT Lien Notice Advertisement The Sale Accounting Moseley Flint Schools of Real Estate 1

2 CHAPTER THREE: ENVIRONMENTAL ISSUES UNDERGROUND STORAGE TANKS Disclosure Liability Protecting Against UST/AST Release Liability Ongoing Problems Maintenance RADON MOLD Disclosure WETLANDS Wetland Mitigation Banks Developing Wetlands Moseley Flint Schools of Real Estate 2

3 Chapter One: Board Regulations The Department of Professional and Occupational Regulation governs the licensing of many occupations. The Virginia Real Estate Board is part of this Department. Licensed real estate brokers and salespersons, known as licensees under the board regulations, are required to adhere to all Real Estate Board regulations. The Real Estate Board regulations were created under Title 54.1, Chapter 21 of the Virginia Code. In this chapter, the current board regulations dealing with standards of practice and conduct are examined, along with a summary of recent changes to board regulations. Place of Business A place of business, which is where a principal broker, either directly or through his employees or associates regularly transacts real estate broker business, and the broker and his employees can receive and make business calls, cannot be in a residence, unless the business is separate and distinct from the living quarters of the residence, and is accessible to the public. In the main place of the business, the broker s license and the license of every salesperson and broker in the firm must be readily available. In each branch office, the branch office license and a roster of every salesperson and broker assigned to the branch office must be available to the public. A supervisory broker must supervise each place of business and branch office. The supervising broker must exercise reasonable and adequate supervision of the provision of real estate brokerage services by associate brokers and salespersons assigned to the branch office. Reasonable and adequate supervision standards that will be considered if the real estate board needs to evaluate the supervision of a licensee include: The availability of the supervising broker to review and discuss contract provisions, brokerage agreement provisions and advertising with the licensees he supervises The availability of training and written policies and procedures that give clear guidance in: o Proper handling of escrow deposits o Compliance with federal and state fair housing laws and regulations if the firm engages in residential brokerage, residential leasing or residential property management o Advertising o Negotiating and drafting of contracts, leases and brokerage agreements o Use of unlicensed individuals o Agency relationships o Distribution of information on new or changed statutory or regulatory requirements Moseley Flint Schools of Real Estate 3

4 o Disclosure of matters relating to the condition of property o Other matters as necessary to ensure licensees are competent to comply with board regulations and Chapter 21 of Title 54 of the Code of Virginia Which of the following are reasonable and adequate supervision standards of a supervising broker? a. Providing quarterly training on the proper handling of escrow accounts. b. Telling an agent to Go ahead and run the ad. I don t know whether the advertisement is acceptable or not, but I don t have time to figure it out right now! c. Reviewing a seller s agency contract for an agent and providing suggestions to clarify certain provisions of the contract d. Providing monthly sales meetings that include training on board regulations. Maintenance of License Licensees must report changes of name and home address to the board in writing within thirty calendar days of the change. Principal brokers must also report their current firm and branch office addresses to the board. Changes must be reported within thirty calendar days of the change. The principal brokers address must be a physical address, not a PO Box. If a salesperson s or associate broker s active status is terminated, the sole proprietor or the principal broker of the firm for which the salesperson or broker worked must return the license to the board by certified mail. The board must receive it within ten calendar days of the date of the active status change. Maintenance and Management of Escrow Accounts All down payments, earnest money deposits, money received upon final settlement, rental payments, rental security deposits, money advanced by a buyer or seller for the payment of expenses in connection with real estate transactions, money advanced by the broker s client or expended on behalf of the client, or other escrow funds received by him or his associates on behalf of his client, or any other person are to be deposited in a separate escrow account. The escrow account must be in the name of the sole proprietorship or firm, must be in a federally insured depository in Virginia, and must be labeled an escrow account by the financial institution. All such monies must be deposited in the escrow account unless all principals to a transaction agree otherwise in writing. The balance in the escrow account must always be sufficient to account for all funds that are designated to be held by the firm or sole proprietorship. It can include money deposited that will ultimately belong to the licensee, but such funds must be identified in the escrow account records and be paid to the firm by a check drawn on the escrow account when the funds become due to the licensee. Then, the firm can pay the licensee. Moseley Flint Schools of Real Estate 4

5 If escrow funds are used to purchase a certificate of deposit (CD), if the CD is pledged, or the original certificate is not under the direct control of the principal or supervising broker, it will be considered commingling of funds, which is prohibited. Disbursement of Escrow Funds In purchase transactions, once a contract has been ratified, deposits of earnest money and down payments must be placed in an escrow account by the end of the fifth business day following ratification, unless otherwise agreed to by all parties to the transaction in writing. The money must stay in the account until the transaction has been consummated or terminated. If the transaction is not consummated, the principal or supervising broker must hold the funds in escrow until: (1) all principals to the transaction have agreed to the disposition in writing, or (2) a court of competent jurisdiction orders such disbursement of the funds, or (3) the broker can pay the funds to the principal to the transaction who is entitled to receive them in accordance with the clear and explicit terms of the contract Lease Transactions: Security Deposits Security deposits held by a firm or sole proprietorship must be placed in an escrow account by the end of the fifth business banking day following receipt, unless otherwise agreed to in writing by principals to the transaction. Unless the landlord has become entitled to receive all or part of the security deposit, the security deposit is not being removed from an escrow account without the written consent of the tenant. Lease Transactions: Rent or Escrow Fund Advances Rents and monies paid to the licensees in connection with the lease must be placed in an escrow account by the end of the fifth business-banking day following receipt. They must remain in the account until paid in accordance with the terms of the lease and property management agreement, unless otherwise agreed to in writing by all principals to the transaction. Receiving Commission Unless all the principals to a transaction agree in writing, a licensee is not entitled to any part of an earnest money deposit or other monies paid in connection with a real estate transaction, or to a security deposit or any money paid in connection with a real estate lease, except, in the case of a lease, in accordance with the applicable lease or property management agreement, or in the case of a real estate purchase transaction, with the written agreement of all the principals in the transaction. Other Escrow Funds Issues If funds in an escrow account bear interest, the contract of sale or lease must disclose the terms of the disbursement of interest to the principals in the transaction. Funds cannot be disbursed or be caused to be disbursed by a licensee from an escrow or property management escrow management account unless there is sufficient money on deposit to the credit of the individual client or property involved. Moseley Flint Schools of Real Estate 5

6 Unless otherwise agreed to in writing by all the principals to a transaction, incidental expenses to closing, such as fees for an appraisal, insurance, credit report, etc., cannot be deducted from a deposit or a down payment. Which of the following are actions that demonstrate appropriate management of escrow funds? a. Receiving $5000 in earnest money and placing $3000 in the firm s escrow account and using $2000 to pay the rent for the brokerage firm b. Receiving $5000 in earnest money and placing it into the firm s escrow account the same business day it was received. c. Receiving $2200 in a security deposit from a lessee and immediately using it to pay an agent s commission d. Recording in the escrow account records that $5000 in earnest money has been received by the agent s brother-in-law, when the money will not be received for three weeks. Improper Maintenance of Escrow Funds All of the following are not allowable when maintaining an escrow fund: Accepting any note, nonnegotiable instrument or anything of value not readily negotiable, as a deposit on a contract or an offer to purchase or lease, without acknowledging its acceptance in the agreement Commingling funds of any person with funds of a principal or supervising broker or his employees or associates or any licensees or with funds of their corporation, firm or association Failure to deposit escrow funds in an escrow account as required by the regulations Failure to have sufficient funds in an escrow account or accounts at all times for all funds designated to be held by the firm or sole proprietorship Failure of a principal broker to report improper conduct to the board within three business days The Virginia Real Estate Board reported this case regarding record keeping and escrow funds, in the Spring 2002 Case Digest: During the mid 1990's, a licensed real estate broker began providing property management services to clients in her capacity as a broker for Real Estate Company A. The services to the property management clients included holding rental security deposits and maintenance deposits in escrow. The bookkeeper working for the broker placed the clients' deposits in the account for Real Estate Company B which account was not labeled as an escrow account. The broker subsequently discontinued the practice of holding such deposits in the account of Real Estate Company B which account was not identified as an escrow account. The broker now handles all the property management accounts through Real Estate Company A, maintaining one escrow account for security deposits and a separate escrow account for maintenance deposits. The broker's action of transferring the deposits to an account of a separate brokerage company which account was not identified as an escrow account is a violation of the Board's January 1999 Regulation 18 VAC Record keeping and escrow funds. 6. Failure to Moseley Flint Schools of Real Estate 6

7 deposit escrow funds in an account or accounts designated to receive only such funds as required by these regulations (see 18 VAC A 1 of this chapter). The Board imposed a monetary penalty. Maintenance and Management of Financial Records Financial records must be kept in the principal broker s place of business or in a designated branch office. If the principal broker s office is located outside of Virginia and the firm has a branch office in Virginia, a copy of the records must be kept in the Virginia office. All financial transactions made under the authority of the principal broker s Virginia license must be recorded, and the records must include: From whom the money was received The date of receipt The place of deposit The date of deposit The final disposition of funds Improper Record Keeping It is considered improper financial record keeping to do any of the following actions: A principal or supervising broker not retaining, for real estate transactions that fail to close, a complete copy of each disclosure of brokerage relationship, each executed contract, agreement, and closing statement in the broker s control or possession Not maintaining a complete and accurate record of receipts and disbursements for a period of three years from the date of closing or termination of a lease or conclusion of the licensee s involvement in a lease Not accounting for or remitting monies within a reasonable amount of time that belong to others A purchase transaction does not close. The principal or supervising broker keep a complete copy of each disclosure of brokerage relationship, each executed contract, agreement and closing statement in the broker s control or possession. a. does not need to b. must c. may d. should not Answer B Advertising All advertising must be under the direct supervision of the principal or supervising broker. The firm s licensed name must be clearly and legibly displayed in all advertising. Moseley Flint Schools of Real Estate 7

8 Online Advertising One of the key components of on-line advertising is disclosure. Disclosure is defined in the board regulations: Disclosure in the context of on-line advertising means (i) advertising that contains the firm s licensed name, the city and state in which the firm s main office is located and the jurisdiction in which the firm holds a license or (ii) advertising that contains the licensee name, the name of the firm with which the licensee is active, the city and state in which the licensee s office is located and the jurisdiction in which the licensee holds a license. Disclosure in the context of other advertising means (i) advertising by the firm that contains the firm s licensed name and the firm s address or (ii) advertising by an affiliated licensee that contains the licensee s name, the name of the firm with which the licensee is active and the firm's address. Web pages owned or content-controlled by the firm or a licensee must include disclosure or a link to disclosure. , newsgroups, discussion lists and bulletin boards must include disclosure at the beginning or end of each message. This requirement does not apply to correspondence in the ordinary course of business. Disclosure is not required for instant messaging, as long as the firm follows the other disclosure requirements. Disclosure must be made before providing or offering to provide services during chat sessions. The disclosure can be on the same web page that contains the chat session if the licensee controls the website hosting the chat session. In voice over net, the disclosure is required prior to advertising or the disclosure text must be visible on the same page that contains the voice over net session. In the case of banner ads, there must be a link to disclosure unless the ad includes disclosure. Which types of Internet communications require disclosure? Internet Communication s that are not correspondence in the ordinary course of business Instant messaging Chat sessions Newsgroups that are not correspondence in the ordinary course of business Disclosure required No disclosure required Moseley Flint Schools of Real Estate 8

9 Prohibited Advertising Actions It is prohibited for any of the following activities to be undertaken: To imply that property listed by a licensee s firm and advertising by the firm or licensee is for sale, exchange, rent or lease by the owner or by an unlicensed person Not including a notice in all advertising that the owner is a real estate licensee if the licensee owns or has any ownership in the property advertised and is not using the services of a licensed real estate entity Not including the firm s license name on any sign displayed outside each place of business Not obtaining the written consent of the seller, landlord, optionor or licensor prior to advertising a specific identifiable property; and Not identifying the type of services when advertising by general description a property not listed by the party making the advertisement Fred, a real estate agent, talks to Sam, a property owner, about selling Sam s unimproved property on the edge of town. Sam does not formally engage Fred as his selling agent, but Fred feels confident that Sam will do so shortly. Fred places a for sale sign with his firm name and his name and telephone number on Sam s property. This action: a. is normal business practice b. is misrepresentation c. is prohibited, since Sam has not given Fred written permission prior to Fred advertising Sam s property for sale Answer C Disclosure of Interest If a licensee is a party to a transaction and knows or should have know that any member of his family, his firm, any member of his firm, any entity in which he has ownership interest, or he, is acquiring or attempting to acquire the real property in the transaction through purchase or lease, the licensee must disclose this information in writing to the owner in the offer to buy or lease. If a licensee has any ownership interest in property being sold or leased, he must disclose in writing that he is a real estate licensee and he has interest in the property in the written offer to purchase, the application, the offer to lease, or the lease, whichever occurs first. Disclosure of Brokerage Relationships The agency relationship of the broker must be disclosed in writing at the earliest practical time, and no later than the time specific real estate assistance is first provided. Disclosure of whom a licensee represents must be made to an individual who is not a client of the licensee and who is not represented by another licensee, at the time a substantive discussion about the property occurs with the individual. Moseley Flint Schools of Real Estate 9

10 If the licensee is acting as a dual or designated representative, the licensee must obtain the written consent of all clients at the earliest practical time. The disclosure must be given to and consent obtained from the buyer no later than when an offer to purchase is presented to the licensee and to the seller no later than when the offer to purchase is presented to the seller. In the case of lease transactions, the licensee must disclose to an individual who is not the licensee s client and who is not a client of another licensee, the licensee s brokerage relationship with another party or parties to the transaction. The disclosure must be in writing and included in the application for lease or the lease itself, whichever occurs first, or in a separate document in writing at the time the lease is signed. This does not apply to lessors or lessees in single or multi-family residential units with lease terms of less than three months. Provision of Records to the Board Licensees must generally produce required documents, books or records concerning real estate transactions in which the licensee was involved, within ten days of a request from the board or its agents. Response to Inquiry of the Board Licensees must generally respond to an inquiry, other than for required records, by the board or its agents within twenty-one days of the inquiry. The Virginia Real Estate Board reported this case regarding responding to board inquiries and providing records to the board, in the Spring 2002 Case Digest: A tenant entered into a Lease Agreement with an agent to lease property. The tenant tendered a security deposit. Subsequently, an investigator for the Board sent the agent correspondence requesting a written response and documentation regarding a complaint by the aforementioned tenant. Although the agent received the letter, he did not respond to the complaint allegations. The agent s failure to respond to an inquiry by the board within twenty-one days, is a violation of the Board s January 1999 Regulation 18 VAC Response to inquiry of the board. A licensee must respond to an inquiry by the board or its agents within 21 days. The agent s failure, upon demand, to produce to the board any document, book, or record concerning any real estate transaction in which he was involved, is a violation of the Board s January 1999 Regulation 18 VAC Provision of records to the board. A licensee of the Real Estate board shall upon demand produce to the board or any of its agents any document, book, or record concerning any real estate transaction in which the licensee was involved, or for which the licensee is required to maintain records for inspection and copying by the board or its agents. The Board imposed a monetary penalty. Unworthiness and Incompetence All of the following actions are prohibited as unworthy and incompetent conduct: 1. Obtaining a license by false or fraudulent representation; 2. Holding more than one license as a real estate broker or salesperson in Virginia except as provided in this chapter; Moseley Flint Schools of Real Estate 10

11 3. As a currently licensed real estate salesperson, sitting for the licensing examination for a salesperson's license; 4. As a currently licensed real estate broker, sitting for a real estate licensing examination; 5. Having been convicted or found guilty, regardless of the manner of adjudication in any jurisdiction of the United States of a misdemeanor involving moral turpitude, sexual offense, drug distribution or physical injury, or any felony, there being no appeal pending therefrom or the time for appeal having elapsed. Review of convictions shall be subject to the requirements of of the Code of Virginia. Any plea of nolo contendere shall be considered a conviction for purposes of this subdivision. The record of a conviction certified or authenticated in such form as to be admissible in evidence under the laws of the jurisdiction where convicted shall be admissible as prima facie evidence of such conviction or guilt; 6. Failing to inform the board in writing within 30 days of pleading guilty or nolo contendere or being convicted or found guilty regardless of adjudication of any convictions as stated in subdivision 5 of this section; 7. Having had a license as a real estate broker or real estate salesperson that was suspended, revoked, or surrendered in connection with a disciplinary action or that has been the subject of discipline in any jurisdiction. 8. Failing to inform the board in writing within 30 days of a disciplinary action as stated in subdivision 7 of this section. 9. Having been found in a court or an administrative body of competent jurisdiction to have violated the Virginia Fair Housing Act, the Fair Housing Laws of any jurisdiction of the United States including without limitation Title VIII of the Civil Rights Act of 1968, (82 Stat. 73) or the Civil Rights Act of 1866 (14 Stat. 27), there being no appeal therefrom or the time for appeal having elapsed; 10. Failing to act as a real estate broker or salesperson in such a manner as to safeguard the interests of the public; and 11. Engaging in improper, fraudulent, or dishonest conduct. John holds a real estate salesperson license in Virginia and West Virginia. John failed to properly account for earnest money received by a West Virginia client, and was disciplined by the West Virginia Real Estate regulators. John must notify the Virginia Real Estate Board in writing of this disciplinary action within days of the action. a. 30 b. 7 c. 10 d. 15 Answer A Conflicts of Interest Certain activities are prohibited as conflicts of interest. These are: Being active with or receiving compensation from a real estate broker other than a licensee s principal broker, without the written consent of the principal broker Acting for more than one client as a dual or designated representative without the written consent of all clients Moseley Flint Schools of Real Estate 11

12 Acting as a standard agent or independent contractor for any client outside the licensee s brokerage firm or sole proprietorship Improper Brokerage Commissions Commission may not be paid for acts in violation of Chapter 21 of Title 54.1 of the Code of Virginia or the board regulations. Referral fees and commissions may be shared with properly licensed brokers and entities. It is prohibited to accept a commission or other valuable consideration as a real estate salesperson or associate broker from anyone except the licensee s principal broker at the time of the transaction without the consent of the broker. Licensees may not work for and provide settlement services for a real estate settlement service company without the written consent of the broker. Any referral fees, commissions or other valuable consideration that is to be paid by a principal to the licensee in a transaction must be revealed in writing to the principal(s) prior to the ordering or contracting for services. If any fee, commission or other valuable consideration is required by the terms of a real estate contract is paid to any party other than the principals to the transaction, and results in a fee being paid to the licensee, this must also be disclosed in writing to the principals prior to the ordering or contracting for services. Licensees may not list a contract or lease for a net return to the seller/lessee, and that allows the licensee to sell or lease the property at any price in excess of the net price named by the seller/lessee. It is also prohibited for a licensee to charge money or other valuable consideration to or accepting or receiving money or other valuable consideration from any person or entity other than the licensee s client for expenditures made on or behalf of the client without the written consent of the client. John, a real estate salesperson, enters into an agreement to lease apartments for a client. The client tells John that the monthly lease is $1400, but if John gets the client to agree to a higher monthly amount, John will be paid the difference for one year as his commission. This type of agreement: a. is preferable to other types of commission agreements b. is allowable under Virginia regulations, but is not a good idea because John may not earn much for his work c. is an allowable commission structure, but the proceeds may not be shared with another licensed real estate salesperson d. is prohibited as an improper brokerage commission. Moseley Flint Schools of Real Estate 12

13 Improper Dealing All of the following actions are prohibited as improper dealing: Entering a brokerage transaction that does not specify a definite termination date, does not provide a mechanism for determining a termination date, or is not terminable by the client Offering property for sale or lease without the knowledge and consent of the owner or the owner s authorized representative, or with any terms not consented to or known by the owner or his authorized representative Placing a sign on any property without the consent of the owner or the owner s authorized representative Placing an ad or sign for the sale, rent or lease of property without including the name of the firm or sole proprietorship The Virginia Real Estate Board reported this case regarding improper dealing in the Spring 2002 Case Digest: On January 15, 2000, a licensed real estate broker discussed a listing with the property owner. This owner did not have a signed agreement with the broker to list his property. The broker subsequently placed the subject property in the multiple listing service, without a signed agreement from the owner. The broker was in violation of the Board s January 1999 Regulation VAC Improper dealing. 2. Offering real property for sale or for lease without the knowledge and consent of the owner or the owner s authorized representative, or on any terms other than those authorized by the owner or the owner s authorized representative. The Board imposed a monetary penalty on the broker and revoked the broker s license. Misrepresentations / Omissions It is prohibited for a licensee to misrepresent or omit material information. All of the following are considered actions that constitute misrepresentations and/or omissions: 1. Using "bait and switch" tactics by advertising or offering real property for sale or rent with the intent not to sell or rent at the price or terms advertised, unless the advertisement or offer clearly states that the property advertised is limited in specific quantity and the licensee did in fact have at least that quantity for sale or rent; 2. Failure by a licensee representing a seller or landlord as a standard agent to disclose in a timely manner to a prospective purchaser or tenant all material adverse facts pertaining to the physical condition of the property which are actually known by the licensee; 3. Failing as a licensee to tender promptly to the buyer and seller every written offer, every written counter offer, and every written rejection to purchase, option or lease obtained on the property involved; 4. Failure by a licensee acting as a standard agent to disclose in a timely manner to the licensee's client all material facts related to the property or concerning the transaction when the failure to so disclose would constitute failure by the licensee to exercise ordinary care as defined in the brokerage agreement; 5. Notwithstanding the provisions of subdivision 4 of this section, a licensee acting as a dual representative shall not disclose to one client represented in the dual representation Moseley Flint Schools of Real Estate 13

14 confidential information relating to the transaction obtained during the representation of another client in the same dual representation unless otherwise provided by law; 6. Failing to include the complete terms and conditions of the real estate transaction in any lease or offer to purchase; 7. Failing to include in any application, lease, or offer to purchase identification of all those holding any deposits; 8. Knowingly making any false statement or report, or willfully misstating the value of any land, property, or security for the purpose of influencing in any way the action of any lender upon: a. Applications, advance discounts, purchase agreements, repurchase agreements, commitments or loans; b. Changes in terms or extensions of time for any of the items listed in this subdivision 8 whether by renewal, deferment of action, or other means without the prior written consent of the principals to the transaction; c. Acceptance, release, or substitution of security for any of the items listed in subdivision 8a of this section without the prior written consent of the principals to the transaction. 9. Knowingly making any material misrepresentation or making a material misrepresentation reasonably relied upon by a third party to that party s detriment; and 10. Making a false promise through agents, salespersons, advertising, or other means. The developer tells the agent to tell potential buyers, and to place in advertising fliers, that the houses in the development start at $150,000, even though the homes in the development actually are priced at $200,000 and more, and the agent knows this. If the agent follows the developer s instructions, the agent: a. is guilty of misrepresentation b. is guilty of omission c. is guilty of improper dealing d. is guilty of improper record keeping Answer A Delivery of Instruments It is considered improper delivery of instruments for a licensee to perform any of the following actions: Not promptly delivering to each principal to a transaction a complete and legible copy of required disclosures, listings, leases, offers to purchase, counteroffers, addenda, ratified agreements and other documents required by the agreement Not providing in a timely manner written notice of any material changes to the transaction to all principals to the transaction Not delivering to the seller and buyer a complete and accurate statement of receipts and disbursement of money received by the licensee, signed and certified by the principal or supervising broker or his authorized agent, at the time a real estate transaction is complete. This requirement does not apply if a settlement agent handles the closing and the money received by the licensee is disclosed in the settlement statement Not providing to the rightful owner, upon demand, any document or instrument that the licensee possesses Moseley Flint Schools of Real Estate 14

15 The Virginia Real Estate Board reported this case regarding delivery of instruments in the Spring 2002 Case Digest: In June, a purchaser entered into a Residential Contract of Purchase through a buyer s agent to purchase a residential property. In July, the purchaser signed an addendum to the contract requesting that the seller make repairs to the subject property. The listing agent subsequently provided a copy of the addendum, ratified by the seller, to the buyer s agent. The buyer s agent never delivered a copy of the ratified addendum to the buyers. This failure of the buyer s agent to make prompt delivery to each principal to a transaction complete and legible copies of any addenda and ratified agreements is a violation of the Board s January 1999 Regulation 18 VAC Delivery of instruments. The buyer s agent consented to a monetary penalty. Principal and Supervising Broker s Responsibility for Acts of Licensees and Employees Unless it appears to the satisfaction of the board that a principal broker, supervising broker, or both, knew or should have known of a salesperson s, employee s, partner s, or affiliate s unlawful act or violation of Chapter 21 of Title 54.1 or of Chapter 5.1 of Title 35 of the Code of Virginia, or of the board regulations, and that the principal or supervisor did not take reasonable action to remedy the situation, disciplinary action may not be taken against the principal or supervisor. Effect of Disciplinary Action or Subordinate Licensees If the license of a principal broker or sole proprietor is revoked, suspended or denied renewal, the licenses of individuals active with the affected firm must be returned to the board until they are reissued upon the written request of another sole proprietor or principal broker in accordance with the board regulations. Education Requirements Real estate salespersons who obtained a new license after December 31, 2003, must obtain 30 hours of Post License Education during their first renewal cycle, instead of Continuing Education, from one of the following tracks: residential real estate, commercial real estate, or property management. The requirement covers three practice tracks: 1) residential real estate; 2) commercial real estate; and 3) property management. The three practice tracks include topics on contract writing, handling customer deposits, listing property, leasing property, agency, current industry issues and trends, property owners and condominium association law, landlord-tenant law, Board regulations, and such other topics as designated by the Board. Failure to complete the 30-hour curriculum within two years of obtaining the license will result in non-renewal by the Board until the curriculum is completed. Recent Changes to Real Estate Laws Military personnel called to active duty may request an extension to meet license requirements in order to ensure that active-duty licensees/applicants do not jeopardize their license/application status. Moseley Flint Schools of Real Estate 15

16 A timeshare developer may use a deed of reverter instead of the foreclosure process. Under a deed of reverter, the timeshare unit title automatically reverts to the developer if the owner defaults or otherwise violates his legal obligations and does not remedy such default or violation within 30 days. The unit owner is given notice, and potential purchasers receive information on the provision in the public offering statement. An amendment to the Cooperative Act was made. Under the amendment, it was clarified that a property owners association lot sold in a non-judicial proceeding must be sold subject to prior liens. The association may purchase the lot at the sale. Moseley Flint Schools of Real Estate 16

17 Chapter Two: The Property Owners Association and Condominium Acts The Property Owners Association Act and the Condominium Act have had important revisions recently. This chapter discusses important new provisions for real estate licensees. The Property Owners Association Act The provisions found in the Code of Virginia, through , are known as the Virginia Property Owners Association Act. This Act applies to certain developments, associations and subdivisions, which have instruments in place to govern the maintenance and use of common areas, or include assessments of the owners to pay for the maintenance or services for the benefit of all or some of the lots, some or all of the owners, or the common area. It applies to all subdivisions, which include covenants. There are two subjects in the Act of particular interest to licensees: the disclosure rules when a lot is being sold and the rules governing the sale of units by an association due to a lien for assessments. Disclosure A person selling a lot that is subject to the provisions of the Property Owners Association Act must include the following disclosures in the contract: Disclose that the lot is subject to the Property Owners Association Act Disclose that the seller must obtain an association disclosure packet from the property owners association and provide it to the purchaser Disclose that the purchaser may cancel the contract within three days after receiving the association packet, or being notified that the disclosure packet will not be available Disclose that if the purchaser has received a disclosure packet, the purchaser has a right to request an update, and Disclose that the right of the purchaser to receive the association disclosure packet and the right to cancel the contract are waived if not exercised before settlement Contents of the Disclosure Packet The disclosure packet required under these laws must contain the following: 1. The name of the association and, if incorporated, the state in which the association is incorporated and the name and address of its registered agent in Virginia; 2. A statement of any expenditure of funds approved by the association or the board of directors which shall require an assessment in addition to the regular assessment during the current year or the immediately succeeding fiscal year; 3. A statement, including the amount of all assessments and any other mandatory fees or charges currently imposed by the association and associated with the purchase, disposition and maintenance of the lot and to the right of use of common areas, and the status of the account; Moseley Flint Schools of Real Estate 17

18 4. A statement whether there is any other entity or facility to which the lot owner may be liable for fees or other charges; 5. The current reserve study report or summary thereof, a statement of the status and amount of any reserve or replacement fund and any portion of the fund allocated by the board of directors for a specified project; 6. A copy of the association's current budget or a summary thereof prepared by the association, and a copy of its statement of income and expenses or statement of its financial condition for the last fiscal year for which such statement is available; 7. A statement of the nature and status of any pending suit or unpaid judgment to which the association is a party which either could or would have a material impact on the association or its members or which relates to the lot being purchased; 8. A statement setting forth what insurance coverage is provided for all lot owners by the association, including any fidelity bond maintained by the association, and what additional insurance would normally be secured by each individual lot owner; 9. A statement that any improvement or alteration made to the lot, or uses made of the lot or common area assigned thereto by the prior lot owner, are not in violation of any of the instruments referred to in subdivision 12 of this subsection; 10. A statement setting forth any restriction, limitation, or prohibition on the right of a lot owner to place a sign on the owner's lot advertising the lot for sale; 11. A statement setting forth any restriction, limitation, or prohibition on the right of a lot owner to display any flag on the owner's lot including, but not limited to reasonable restrictions as to the size, place and manner of placement or display of such flag and the installation of any flagpole or similar structure necessary to display such flag; 12. A copy of the current declaration, the association's articles of incorporation and bylaws, and any rules and regulations or architectural guidelines adopted by the association; 13. A copy of the notice given to the lot owner by the association of any current or pending rule or architectural violation; 14. A copy of the fully completed one-page cover sheet developed by the Real Estate Board pursuant to ; otice.pdf and 15. Certification, if applicable, that the association has filed with the Real Estate Board the annual report required by ; which certification shall indicate the filing number assigned by the Real Estate Board and the expiration date of such filing. 9. Which of the following must be included in the disclosure packet given to a purchaser of a lot subject to the Property Owners Association Act? Disclosure item The name of the association and, if incorporated, the state in which the association is incorporated and the name and address of its registered agent in Virginia A statement, including the amount of all assessments and any other mandatory fees or charges currently imposed by the association and Included Not Included Moseley Flint Schools of Real Estate 18

19 associated with the purchase, disposition and maintenance of the lot and to the right of use of common areas, and the status of the account A statement of at least three lot owners that the Property Owners Association is financially stable and has met its obligations to lot owners A statement setting forth any restriction, limitation or prohibition on the right of a lot owner to place a sign on the owner s lot advertising the lot for sale Delivery Requirements An association must provide an association disclosure packet within fourteen days after receipt of a written request from the owner or his authorized agent along with any required fee. The owner must provide the packet to the purchaser upon receipt. If a trustee is acting for a seller in the sale or resale of a lot, the trustee must obtain the disclosure packet and provide the packet to the purchaser. The association has no obligation to deliver the disclosure packet to the purchaser. Disclosure Packet Exceptions The disclosure packet does not have to be provided in the following situations: A disposition of a lot by gift A disposition of a lot pursuant to a court order A disposition of a lot by foreclosure or deed in lieu of foreclosure A disposition of a lot that is zoned for or otherwise restricted to nonresidential use A disposition of a lot to a person or entity who is not acquiring the lot for his own residence, unless the person asks for the disclosure packet Failure to Deliver the Disclosure Packet If the association has received a written request and any required fee in accordance with these laws and does not provide the disclosure packet in the form required within fourteen days from the receipt of the request by an officer, director or agent of the association, any claim against the subject lot for delinquent assessments or of any violation of the declaration, bylaws, rules and regulations, or architectural guidelines existing as of the date of the request is waived. Delivering the disclosure packet to purchasers of lots subject to the Property Owners Association Act is the responsibility of: a. the Property Owners Association b. the seller, or the trustee acting for the seller c. either the Property Owners Association or the seller Answer B Moseley Flint Schools of Real Estate 19

20 Sales Due to a Lien For Assessments If assessments go unpaid, an association subject to the provisions of the Property Owners Associations Act may have liens on every lot for unpaid assessments that are levied in accordance with the Act s provisions. The lien is prior to all other subsequent liens and encumbrances except: (1) real estate tax liens on the lot (2) liens and encumbrances recorded prior to the recordation of the declaration, and (3) sums unpaid on and owing under any mortgage or deed of trust recorded prior to the association s lien In order to perfect the association s lien, the association must file a memorandum with the clerk s office of the circuit court in the county or city in which the development is situated that contains specified information about the lot and unpaid assessment, and that is verified by oath of an officer of the association. The memorandum must include a statement that the association is obtaining a lien in accordance with the provisions of the Virginia Property Owners Association Act. Prior to filing a memorandum of lien, the property owner must be sent a written notice informing the property owner that a memorandum of lien will be filed with the circuit court clerk s office. The notice must be sent by certified mail to the property owner s last known address and be sent at least ten days before the actual filing date of the memorandum of lien. Notice of Sale At any time after perfecting the lien according to the Act s provisions, the property owners association may sell the unit at public sale. The property owners association must give written notice to the lot owner that specifies the debt secured by the perfect lien, the action needed to satisfy the debt, the date by which the debt must be satisfied which cannot be less than sixty days from the date the notice is given to the lot owner, and that failure to satisfy the debt may result in the sale of the lot. The notice must also inform the lot owner that he has the right to bring a court action to assert the nonexistence of a debt or any other defense of the lot owner to the sale. An advertisement of the sale must be put in a newspaper that has a general circulation in the city or county wherein the property is to be sold. The advertisement must generally run once a week for four successive weeks, although in some locations the ad may run on five days, which may be consecutive. The sale can be held any day following the day of the last advertisement as long as it is held no earlier than eight days following the first advertisement and no later than thirty days following the last advertisement. Moseley Flint Schools of Real Estate 20

21 In order to sell a unit at public sale due to unpaid assessments, a property owners association must do which of the following? a. Perfect a lien, filed at the circuit court clerk s office b. Place an ad in a newspaper that has a general circulation in the city or county wherein the property will be sold, generally once a week for four successive weeks c. Provide notice of the sale to the lot owner d. All of the Above Selling the Lot by Nonjudicial Foreclosure The property owners association has the power to sell and convey the lot and is deemed the lot owner s statutory agent for the purpose of transferring title to the lot. The association may appoint a trustee to conduct the sale after the sixty-day period in which the owner has to satisfy the debt, has expired. Any person may bid at the foreclosure sale. Written one-price bids may also be made by anyone and received by the trustee for entry by announcement at the sale. The association may bid to purchase the lot, as long as the association s declaration does not state otherwise. The association may require of any bidder a cash deposit of up to 10% of the sale price before his bid is received. Deposits must be returned to the bidder if the property is not sold to him, and the deposit of the successful bidder must be applied to his credit at settlement. If the successful bidder is unable to promptly complete the sale, his deposit is applied to pay the costs and expenses of that sale and the association retains any remaining balance. The trustee must file an accounting of the sale and the filed account will be recorded. The accounting is available for inspection and copying upon the written request of the prior lot owner, current lot owner or any holder of a recorded lien against the lot at the time of the sale. The association must keep a copy of the accounting for at least 12 months after the foreclosure sale. The Condominium Act The Condominium Act includes similar rules to the Property Owners Association Act regarding nonjudicial foreclosure due to lien for assessments. Lien The unit owner s association has a lien on every condominium unit for unpaid assessments levied against the condominium unit. The lien is prior to all other liens and encumbrances except: (1) real estate tax liens on the condominium unit (2) liens and encumbrances recorded prior to the recordation of declaration, and (3) sums unpaid on any first mortgages or first deeds of trust recorded prior to the perfection of the lien for assessments and security institutional lenders Moseley Flint Schools of Real Estate 21