Legislature(2005 - 2006)HOUSE FINANCE 519

04/13/2005 01:30 PM House FINANCE


Download Mp3. <- Right click and save file as

* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ HB 182 WAGE & HOUR ACT: EXEC/PROF/ADMIN/SALES TELECONFERENCED
Moved CSHB 182(FIN) Out of Committee
+ HB 169 REAL ESTATE LICENSEE EDUC TELECONFERENCED
Heard & Held
+ HB 98 NONUNION PUBLIC EMPLOYEE SALARY & BENEFIT TELECONFERENCED
Moved CSHB 98(STA) Out of Committee
+ HB 27 MUNI PROP TAX EXEMPTION FOR POLICE HOMES TELECONFERENCED
Scheduled But Not Heard
Bills Previously Heard/Scheduled
= HB 32 APPROP: GRANT TO ARCTIC POWER FOR ANWR
Moved CSHB 32(FIN) Out of Committee
+ HB 54 BAIL REVIEW TELECONFERENCED
Moved CSHB 54(FIN) Out of Committee
HOUSE BILL NO. 169                                                                                                            
                                                                                                                                
     "An  Act relating  to the  educational requirements  for                                                                   
     certain  real  estate brokers,  associate  brokers,  and                                                                   
     salespersons  with   new  or  suspended   licenses;  and                                                                   
     allowing real estate brokers  to hire certain experts to                                                                   
     review real  estate transactions;  and providing  for an                                                                   
     effective date."                                                                                                           
                                                                                                                                
Representative Rokeberg  related that HB 169  provides for 20                                                                   
hours  of post-licensing  education  for realtors.   It  also                                                                   
provides that  lawyers may assist brokers in  supervising all                                                                   
transactions.                                                                                                                   
                                                                                                                                
2:47:20 PM                                                                                                                    
                                                                                                                                
PEGGY  ANN  MCCONNOCHIE,  ALASKA   ASSOCIATION  OF  REALTORS,                                                                   
explained  that 18  states currently  require  post-licensing                                                                   
education.   This bill would reduce  the number of  claims to                                                                   
the  real estate  commission.    She explained  that  realtor                                                                   
associations  are in  favor of  this bill.   It will  provide                                                                   
additional   consumer  protection   by  having   well-trained                                                                   
realtors.  The effective date is timely.                                                                                        
                                                                                                                                
Ms. McConnochie explained that  the supervision aspect of the                                                                   
bill  is  aimed  at  the larger  brokers  in  the  state  who                                                                   
supervise many transactions per  month.  They need to be away                                                                   
to  make sure  that  documents are  properly  filed prior  to                                                                   
closing.   This  provision allows  a  broker to  hire a  real                                                                   
estate  attorney  to review  transactions  and  will help  to                                                                   
better serve  the public.  She  reported that this  aspect is                                                                   
missing from HB 29.                                                                                                             
                                                                                                                                
Representative Croft commented  that the continuing education                                                                   
portion  of the  bill  is fine.    He voiced  concerns  about                                                                   
Section  14, the  review of  transactions.   Ms.  McConnochie                                                                   
replied that this section makes  it clear that a large broker                                                                   
can  employ an  attorney  and have  no  conflict in  statute.                                                                   
Representative Croft asked who  the attorney represents.  Ms.                                                                   
McConnochie   replied   the   broker,   who   is   ultimately                                                                   
responsible for all decisions.   Representative Croft worried                                                                   
that there  is a sense that  the attorney is looking  out for                                                                   
the buyer's interests when he  or she is only looking out for                                                                   
the broker's interests.   Ms. McConnochie replied  that there                                                                   
would not  be the opportunity  to have that false  perception                                                                   
because   the  attorneys   would  never   meet  the   buyers.                                                                   
Representative  Croft maintained that  the broker  always has                                                                   
an ability to hire an attorney  to look at the documents.  He                                                                   
opined that the  attorney is only looking after  the broker's                                                                   
interests.   Ms.  McConnochie  restated  the  purpose of  the                                                                   
review.  There  is no implication that the  lawyer is partial                                                                   
to the buyer, seller, landlord, or tenant.                                                                                      
                                                                                                                                
2:53:13 PM                                                                                                                    
                                                                                                                                
Representative   Foster   inquired  if   the   post-licensing                                                                   
education would require a realtor  in Nome to buy an airplane                                                                   
ticket  to the  class.   Ms.  McConnochie  replied that  that                                                                   
person could take the class by correspondence.                                                                                  
                                                                                                                                
2:54:11 PM                                                                                                                    
                                                                                                                                
BRAD FLEUTSCH, ALASKA REAL ESTATE  COMMISSION, stated support                                                                   
for the continuing education elements  of the bill.  He noted                                                                   
that  there is  a  problem  with Section  14.    There is  no                                                                   
requirement  in the  bill that  the attorney  be licensed  in                                                                   
Alaska  or have knowledge  of  real estate  law.  The  Alaska                                                                   
Real Estate  Commission has  no ability  to supervise  such a                                                                   
position.   He explained that  the completed file has  all of                                                                   
the  forms  and  legal  requirements,  and  it  is  the  last                                                                   
responsibility the  broker has to  the client.   He requested                                                                   
to have Section 14 dropped or fixed.                                                                                            
                                                                                                                                
2:57:08 PM                                                                                                                    
                                                                                                                                
Representative  Hawker recalled  that he  has often  sought a                                                                   
non-Alaskan lawyer with good results.   Mr. Fleutsch stressed                                                                   
that it  is Alaska  real estate law  that is being  reviewed.                                                                   
Representative  Hawker  asked if  an attorney  practicing  in                                                                   
Alaska has to be  licensed to practice real estate  law.  Mr.                                                                   
Fleutsch  suggested  amending  Section  14 to  say  "licensed                                                                   
Alaska  attorney".    Representative   Hawker  said  that  is                                                                   
inherent in  statute.   Mr. Fleutsch  offered that  it should                                                                   
not be  limited to attorneys,  but accountants could  also be                                                                   
included.   The purpose of this  aspect of HB 169 is  just to                                                                   
review the  file, which the  Real Estate Commission  feels is                                                                   
very important.                                                                                                                 
                                                                                                                                
Representative  Kelly  asked if  the attorney  does  anything                                                                   
that a  broker does  not do.   Mr. Fleutsch  replied  that he                                                                   
does not know.  Representative  Kelly suggested language that                                                                   
would include  an associate broker  or an attorney  acting as                                                                   
an  associate   broker.    He  shared  concerns   similar  to                                                                   
Representative Croft's.                                                                                                         
                                                                                                                                
Representative Croft suggested  that the broker could hire an                                                                   
accountant or  other professionals.   He questioned  the need                                                                   
for  this part  of the  bill.   He  said that  Section 14  is                                                                   
either unnecessary or unclear.                                                                                                  
                                                                                                                                
3:02:11 PM                                                                                                                    
                                                                                                                                
Representative Hawker  read from Section 14,  "The broker may                                                                   
pay  the   attorney  or   associated   broker  from   a  fee,                                                                   
commission, or  other compensation received by  the broker in                                                                   
a real  estate transaction  payment."   He  asked if that  is                                                                   
prohibited in statute, as covered in Section 15.                                                                                
                                                                                                                                
Representative  Rokeberg replied  that  is true.   He  opined                                                                   
that this provision  is needed in statute  for clarification.                                                                   
Currently under Chapter 8, lawyers  can sell real estate.  He                                                                   
pointed out that  the Real Estate Commission has  no power to                                                                   
discipline  attorneys,  and  emphasized  that the  broker  is                                                                   
still  responsible  for  all  transactions.    There  are  no                                                                   
restrictions on a large brokerage  house or a commercial real                                                                   
estate brokerage  house to not  use an attorney  to supervise                                                                   
the actual  documents  of a transaction.    That needs  to be                                                                   
clear.  He emphasized  that the bill should be  passed in its                                                                   
current state.                                                                                                                  
                                                                                                                                
3:06:44 PM                                                                                                                    
                                                                                                                                
BARBARA  RAMSEY,   CHAIR,  ALASKA  REAL   ESTATE  COMMISSION,                                                                   
ANCHORAGE, (via  teleconference) testified in support  of the                                                                   
legislation, but expressed concern  with page 8, lines 19-24.                                                                   
She recommended  the deletion  of Section  14.  She  stressed                                                                   
that the Commission does not want to regulate attorneys.                                                                        
                                                                                                                                
3:10:01 PM                                                                                                                    
                                                                                                                                
Representative Kelly  asked if Ms. Ramsey is  saying that the                                                                   
current statute  provides that a broker could  hire assistant                                                                   
brokers and retain attorneys to  help review these files, and                                                                   
those  costs are permitted  to  be taken by  the broker  from                                                                   
transaction fees.                                                                                                               
                                                                                                                                
Ms.  Ramsey clarified  that an  associate  broker is  already                                                                   
allowed  in  regulations  -  12AAC.64.125,   Section  B.  She                                                                   
pointed  out that the  provision regarding  attorneys  is not                                                                   
currently allowed.  She opined  that they should be paid as a                                                                   
business expense, as an employee.                                                                                               
                                                                                                                                
3:11:59 PM                                                                                                                    
                                                                                                                                
Representative  Rokeberg   spoke  in  support   of  retaining                                                                   
Section 14.                                                                                                                     
                                                                                                                                
3:13:38 PM                                                                                                                    
                                                                                                                                
Representative  Croft  noted  concerns  by  the  Real  Estate                                                                   
Commission.  He argued that any  profession could be hired to                                                                   
look up documents, but its different  when they get a portion                                                                   
of  the  fee  because  then they  have  an  interest  in  the                                                                   
transaction.   That  is why real  estate law  is so  specific                                                                   
about who gets the fee.                                                                                                         
                                                                                                                                
3:14:44 PM                                                                                                                    
                                                                                                                                
Representative  Rokeberg maintained  that  Amendment 1  would                                                                   
conform  the legislation.   There  is no intent  for a  "kick                                                                   
back".                                                                                                                          
                                                                                                                                
Co-Chair Meyer MOVED to ADOPT Amendment 1:                                                                                      
                                                                                                                                
     Page 9, line 26, following "date":                                                                                         
     Insert "of secs. 1-11 and 16"                                                                                              
                                                                                                                                
     Page 9, line 29, following "date":                                                                                         
     Insert "of secs. 1-11 and 16"                                                                                              
                                                                                                                                
     Page 10, line 1, following "date":                                                                                         
     Insert "of secs. 1-11 and 16"                                                                                              
                                                                                                                                
Co-Chair  Chenault OBJECTED  for the  purpose of  discussion.                                                                   
Ms. Nobrega  explained that the  amendment would  conform the                                                                   
effective dates to the appropriate sections.                                                                                    
                                                                                                                                
Co-Chair Chenault  REMOVED his  OBJECTION to adopt  Amendment                                                                   
1.  There being NO OBJECTION, Amendment 1 was adopted.                                                                          
                                                                                                                                
3:17:54 PM                                                                                                                    
                                                                                                                                
Representative Croft MOVED to ADOPT Conceptual Amendment 2:                                                                     
                                                                                                                                
     Delete section 14, page 8, lines 14 - 25.                                                                                  
                                                                                                                                
Representative  Rokeberg  noted  that  some  members  of  the                                                                   
Commission  disagree with  the concern  over section  14. The                                                                   
issue is  whether the Commission  can properly  supervise the                                                                   
lawyers.    He  did  not  agree  with  these  concerns.    He                                                                   
maintained  that   there  is   no  formal  position   of  the                                                                   
Commission.                                                                                                                     
                                                                                                                                
3:18:32 PM                                                                                                                    
                                                                                                                                
Representative   Hawker   OBJECTED   for   the   purpose   of                                                                   
discussion.  He referred to Ms.  Ramsey's letter and disputed                                                                   
her  concerns.    He  concluded   that  her  objections  were                                                                   
irrelevant to the issue at hand.                                                                                                
                                                                                                                                
Representative  Kelly  questioned  if  the  broker  alone  is                                                                   
punished for infractions.                                                                                                       
                                                                                                                                
3:22:45 PM                                                                                                                    
                                                                                                                                
Representative Rokeberg replied  that is correct.  The broker                                                                   
is ultimately responsible.                                                                                                      
                                                                                                                                
Representative  Croft responded that  there ought to  be some                                                                   
power over  the person that receives  the fee.   He concluded                                                                   
that the Commission  should have control over  the lawyers or                                                                   
the fee should  be removed.  He argued that  the compensation                                                                   
should not be based on "their saying yes".                                                                                      
                                                                                                                                
3:25:36 PM                                                                                                                    
                                                                                                                                
Representative  Rokeberg directed  the committee  to page  8,                                                                   
line 23,  "received by  the broker".   He explained  that the                                                                   
broker  receives  the money  and  then  allocates it  to  the                                                                   
attorney  or  associate  broker.   Direct  compensation  from                                                                   
commissions is not being given to the lawyer.                                                                                   
                                                                                                                                
3:26:47 PM                                                                                                                    
                                                                                                                                
Representative Weyhrauch  questioned why Section  14 would be                                                                   
necessary.  The real estate broker  may contract with and pay                                                                   
an   attorney   to  assist   the   broker  in   real   estate                                                                   
transactions.  He observed applications of malpractice.                                                                         
                                                                                                                                
3:28:51 PM                                                                                                                    
                                                                                                                                
Representative  Croft  pointed out  that  the attorney's  pay                                                                   
would be dependent on receiving  a percentage of the broker's                                                                   
commission.  He reiterated his concerns.                                                                                        
                                                                                                                                
Representative Weyhrauch maintained  that attorneys would not                                                                   
base  their pay  on a  commission.   Ms.  Nobrega noted  that                                                                   
associate brokers  and brokers are also dependent  on receipt                                                                   
of the commission.                                                                                                              
                                                                                                                                
Representative  Weyhrauch  stressed  the  importance  of  the                                                                   
public's trust of attorneys.                                                                                                    
                                                                                                                                
3:31:12 PM                                                                                                                    
                                                                                                                                
Ms. Ramsey agreed with remarks  by Representative Croft.  She                                                                   
noted that  the Real Estate  Commission approved  the pursuit                                                                   
                                                                                                                                
of  legislation for  post-licensing  in  March 4,2004.     On                                                                   
February 8,  2005, she  received the first  draft of  HB 169.                                                                   
She  observed that  the issue  was first  discussed on  March                                                                   
  thth                                                                                                                          
15.    On  the 24   of  March she  sent  a letter  addressing                                                                   
concerns to Representative   Rokeberg. On April  4, she spoke                                                                   
with Representative  Rokeberg about her concerns.   The state                                                                   
association did  not discuss the  issue with the  Commission,                                                                   
the entity that must enforce the provision.                                                                                     
                                                                                                                                
3:34:11 PM                                                                                                                    
                                                                                                                                
Representative Rokeberg took exception to the objections.                                                                       
                                                                                                                                
Representative  Kelly  suggested that  the  last sentence  be                                                                   
dropped.                                                                                                                        
                                                                                                                                
3:35:33 PM                                                                                                                    
                                                                                                                                
Representative Croft WITHDREW Conceptual Amendment 2.                                                                           
                                                                                                                                
HB 169 was HELD for further consideration.                                                                                      
                                                                                                                                
3:36:54 PM                                                                                                                    
                                                                                                                                

Document Name Date/Time Subjects