HB 257: "An Act relating to the disclosure requirements for real estate licensees, to disciplinary action against real estate licensees, to private actions against real estate licensees, and to real estate licensee agency relationships, fiduciary duties, and other duties; and providing for an effective date."
00 HOUSE BILL NO. 257 01 "An Act relating to the disclosure requirements for real estate licensees, to disciplinary 02 action against real estate licensees, to private actions against real estate licensees, and to 03 real estate licensee agency relationships, fiduciary duties, and other duties; and 04 providing for an effective date." 05 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 06 * Section 1. The uncodified law of the State of Alaska is amended by adding a new section 07 to read: 08 LEGISLATIVE FINDINGS AND INTENT. (a) The legislature finds that 09 (1) the purpose of the requirement that a real estate licensee make certain 10 disclosures about the licensee's representation is to provide consumer protection to those 11 people who may not be familiar with their legal responsibilities and rely in part on real estate 12 licensees for advice when buying, selling, and leasing real estate; 13 (2) the parties to commercial transactions do not need the protection that the 14 required disclosures provide;
01 (3) the disclosure requirements do not reflect the standard of practice in the 02 commercial real estate field. 03 (b) It is the intent of the legislature that commercial real estate licensees be exempt 04 from agency and disclosure requirements in large commercial real estate transactions because 05 of the level of sophistication and knowledge that is typical of the parties to large commercial 06 real estate transactions. 07 * Sec. 2. AS 08.88.071(a)(3) is amended to read: 08 (3) after hearing, have the authority to suspend or revoke the license of 09 a licensee or impose other disciplinary sanctions authorized under AS 08.01.075 on a 10 licensee who 11 (A) with respect to a real estate transaction 12 (i) made a substantial misrepresentation; 13 (ii) made a false promise likely to influence, persuade, 14 or induce; 15 (iii) in the case of a real estate broker, pursued a 16 flagrant course of misrepresentation or made a false promise through 17 another real estate licensee; 18 (iv) has engaged in conduct that is fraudulent or 19 dishonest; 20 (v) violates AS 08.88.391; 21 (vi) violates AS 08.88.396; 22 (B) procures a license by deceiving the commission, or aids 23 another to do so; 24 (C) has engaged in conduct of which the commission did not 25 have [HAD NO] knowledge at the time the licensee was licensed 26 demonstrating the licensee's unfitness to engage in the business for which the 27 licensee is licensed; 28 (D) knowingly authorizes, directs, connives at, or aids in 29 publishing, distributing, or circulating a material false statement or 30 misrepresentation concerning the licensee's business or concerning real estate 31 offered for sale, rent, or lease, or managed in the course of the licensee's
01 business in this or any other state or concerning the management of an 02 association in the course of a licensee's business in this or another state; 03 (E) if a real estate broker, wilfully violates AS 08.88.171(d) or 04 08.88.291; 05 (F) if an associate real estate broker, claims to be a real estate 06 broker, or, if a real estate salesperson, claims to be a real estate broker or an 07 associate real estate broker; 08 (G) if a real estate broker, employs an unlicensed person to 09 perform activities for which a real estate license is required; 10 (H) if an employed real estate licensee of a real estate broker, 11 fails immediately to turn money or other property collected in a real estate 12 transaction over to the employing real estate broker; 13 * Sec. 3. AS 08.88.396(a) is amended to read: 14 (a) A person licensed under this chapter shall, when acting as a real estate 15 licensee [AN AGENT] for a prospective seller or lessor of real estate, 16 (1) disclose in writing the licensee's agency relationship with the seller 17 or lessor to each prospective buyer or lessee at the time that the licensee begins to 18 provide specific assistance to locate or acquire real estate for the buyer or lessee, and 19 obtain from each prospective buyer or lessee a signed acknowledgment 20 [ACKNOWLEDGEMENT] that the buyer or lessee is aware of the agency 21 relationship between the licensee and the seller or lessor; and 22 (2) include in the purchase agreement a statement of the agency 23 relationship between the licensee and the seller or lessor. 24 * Sec. 4. AS 08.88.396(b) is amended to read: 25 (b) A person licensed under this chapter shall, when acting as a real estate 26 licensee [AN AGENT] for a prospective buyer or lessee of real estate, 27 (1) disclose the licensee's relationship with the buyer or lessee to a 28 prospective seller or lessor of real estate, or to the seller's or lessor's real estate 29 licensee [AGENT], at the time of the initial contact between the licensee and the 30 prospective seller or lessor, or the seller's or lessor's real estate licensee [AGENT], 31 and confirm the relationship in writing as soon as possible after the initial contact;
01 (2) include in the purchase agreement a statement of the agency 02 relationship between the licensee and the buyer or lessee; 03 (3) if the prospective seller or lessor has an unexpired exclusive listing 04 contract for a property, present all offers to purchase that property through the seller's 05 or lessor's real estate licensee [AGENT]; and 06 (4) disclose in writing to all parties to a transaction when the licensee's 07 compensation as real estate licensee [AGENT] for the buyer or lessee is to be paid by 08 anyone other than the buyer or lessee being represented by the licensee. 09 * Sec. 5. AS 08.88.396(c) is amended to read: 10 (c) A person licensed under this chapter may act as a real estate licensee [AN 11 AGENT] for both a prospective seller or lessor and a prospective buyer or lessee of 12 real estate only after the licensee informs both the seller or lessor and the buyer or 13 lessee of the dual agency and obtains written consent to the dual agency from both 14 principals. 15 * Sec. 6. AS 08.88.396 is amended by adding new subsections to read: 16 (e) This section does not apply to a commercial real estate transaction that 17 involves 18 (1) the sale or lease of real estate that contains a building having four 19 or more separate living units; 20 (2) the sale of real estate that has a purchase price of $100,000 or more 21 in value for nonresidential use; or 22 (3) the sale or lease of real estate having a gross lease revenue that 23 exceeds $12,000 a year. 24 (f) In a commercial real estate transaction under (e) of this section, when the 25 licensee is representing both the buyer and seller or both the lessor and lessee, 26 (1) the common law principles of agency do not apply to the licensee's 27 representation; and 28 (2) the licensee does not have a fiduciary duty to either the buyer or 29 seller if representing both the buyer and seller, or to either the lessor and lessee if 30 representing both the lessor and lessee, but shall act with honesty, fairness, and good 31 faith when representing these persons.
01 (g) The failure of a licensee to make a disclosure required by this section or to 02 obtain a written consent required by this section does not give a person a cause of 03 action against the licensee for the failure. However, a person may file a claim under 04 AS 08.88.460 for a violation of this section if the violation constitutes fraud, 05 misrepresentation, or deceit, and the person suffered a loss as a result of the violation. 06 * Sec. 7. The uncodified law of the State of Alaska is amended by adding a new section to 07 read: 08 APPLICABILITY AND RETROSPECTIVITY. (a) The provisions of this Act apply 09 to a real estate transaction that occurs before, on, or after the effective date of this Act, and to 10 that extent, are retrospective under AS 01.10.090. In this subsection, "real estate transaction" 11 has the meaning given in AS 08.88.990. 12 (b) In addition to the application of AS 08.88.396(g), enacted by sec. 6 of this Act, 13 under (a) of this section, AS 08.88.396(g) applies to an action pending in a court in the state in 14 which a final judgment has not been rendered before the effective date of this Act and, to that 15 extent, is retrospective under AS 01.10.090. 16 * Sec. 8. This Act takes effect immediately under AS 01.10.070(c).