Legislature(2003 - 2004)

05/01/2004 05:12 PM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
           HB 29-REAL PROPERTY TRANSACTIONS/LICENSEES                                                                       
                                                                                                                                
CHAIR SEEKINS  informed members that the  working document before                                                               
the  committee  was version  C  and  that  Senator French  had  a                                                               
proposed amendment.                                                                                                             
                                                                                                                                
SENATOR  FRENCH  moved  to  adopt Amendment  1,  which  reads  as                                                               
follows.                                                                                                                        
                                                      23-LS0189\C.1                                                             
                                                         Bannister                                                              
                                                                                                                                
                                                                                                                                
                      A M E N D M E N T  1                                                                                  
                                                                                                                                
                                                                                                                                
OFFERED IN THE SENATE                         BY SENATOR FRENCH                                                                 
     TO:  SCS CSSSHB 29(L&C)                                                                                                    
                                                                                                                                
                                                                                                                                
Page 5, following line 18:                                                                                                      
     Insert a new subsection to read:                                                                                           
          "(c) Notwithstanding (b)(2) of this section, before a                                                                 
     buyer  makes   or  accepts  an   offer  in  a   real  estate                                                               
     transaction,  a real  estate licensee  who  is handling  the                                                               
     real estate transaction for the  buyer shall disclose to the                                                               
     buyer  that  a  murder  or  suicide  occurred  on  the  real                                                               
     property that is the subject  of the real estate transaction                                                               
     if                                                                                                                         
               (1) the murder or suicide occurred within one                                                                    
     year before the date that the licensee first showed the                                                                    
     real estate to the buyer; and                                                                                              
               (2) the licensee is aware that the murder or                                                                     
     suicide occurred on the real estate."                                                                                      
                                                                                                                                
SENATOR  FRENCH then  informed members  that he  wished to  amend                                                               
Amendment  1 by  deleting  the language  on lines  4  and 5  that                                                               
reads,  "who is  handling  the real  estate  transaction for  the                                                               
buyer".                                                                                                                         
                                                                                                                                
CHAIR SEEKINS noted without objection, Amendment 1 was amended.                                                                 
                                                                                                                                
SENATOR OGAN objected  to the adoption of Amendment  1 as amended                                                               
for  the  purpose of  discussion.  He  then  asked how  much  the                                                               
disclosure of a  murder or suicide could  significantly devalue a                                                               
property.                                                                                                                       
                                                                                                                                
MS. PEGGY  ANN McCONNOCHIE, Alaska Association  of Realtors, said                                                               
that is  in the eye of  the beholder, which is  why disclosure is                                                               
necessary. She explained:                                                                                                       
                                                                                                                                
     We're not saying  it has to be disclosed  in a negative                                                                    
     way but, for example,  there are certain cultures whose                                                                    
     culture  prohibits them  from  buying a  home in  which                                                                    
     there has been  a murder or suicide.  Other people will                                                                    
     not care. They just want  the house. They don't care if                                                                    
     that  happens. But  the fact  is it  still needs  to be                                                                    
     disclosed and  we thank Senator  French for  helping us                                                                    
     with the  wording because we believe  that this wording                                                                    
     makes  it  far  more  clear since  those  are  the  two                                                                    
     problem areas that we feel are material facts and need                                                                     
        to be disclosed if they're known by the licensee                                                                        
     within the past 12 months.                                                                                                 
                                                                                                                                
REPRESENTATIVE ROKEBERG, sponsor of HB  29, added that the reason                                                               
this  issue  arose is  because  of  case  law and  other  actions                                                               
throughout the  country. These circumstances  have given  rise to                                                               
lawsuits because  of the psychological impact.  Because this bill                                                               
will  specifically codify  more  of the  duties  of realtors,  he                                                               
believes  it is  necessary  to clarify  this  matter. He  thanked                                                               
Senator French.                                                                                                                 
                                                                                                                                
CHAIR SEEKINS  announced with no  further objection,  Amendment 1                                                               
as amended was adopted.                                                                                                         
                                                                                                                                
SENATOR FRENCH noted  he had a few questions and  first asked for                                                               
a clear  example of  a conflict  of interest  that a  real estate                                                               
licensee would have if this bill is enacted.                                                                                    
                                                                                                                                
REPRESENTATIVE  ROKEBERG  pointed  out   that  Section  3,  which                                                               
pertains  to  conflicts  of  interest, is  already  part  of  the                                                               
statute.  He  said  the  other  subsections  under  AS  08.88.391                                                               
provide more  detail and that  it is the relationships  that give                                                               
rise to a conflict of interest.                                                                                                 
                                                                                                                                
SENATOR FRENCH referred to "specific  assistance" on page 3, line                                                               
10, and throughout  the bill, and asked if a  realtor can provide                                                               
specific  assistance  to  a   person  without  representing  that                                                               
person.                                                                                                                         
                                                                                                                                
MS. McCONNOCHIE  said the Alaska  Realtors Association  wanted to                                                               
define at what  point the services of a real  estate licensee are                                                               
being used,  "And that's when  specific assistance  happens." She                                                               
pointed to the definition of  "specific assistance" at the end of                                                               
the  bill and  repeated that  realtors  need to  know when  their                                                               
services begin and when they do not.                                                                                            
                                                                                                                                
SENATOR FRENCH  asked why hosting  an open house is  not included                                                               
in that definition.                                                                                                             
                                                                                                                                
MS. McCONNOCHIE  replied, "Because  typically when  you're coming                                                               
into  a  house   and  I  am  sitting   there,  intrinsically  I'm                                                               
representing the owner  of the house. Consequently  I'm not going                                                               
to  offer  you  specific  assistance, which  could  be  in  fact,                                                               
against my client's - the seller's - best interest."                                                                            
                                                                                                                                
SENATOR FRENCH said  he was thinking of it in  opposite terms but                                                               
realizes that realtor is already representing the seller.                                                                       
                                                                                                                                
REPRESENTATIVE  ROKEBERG  indicated  that  the  bill  requires  a                                                               
written  disclosure  statement  about the  type  of  relationship                                                               
between  the  licensee and  a  prospective  buyer or  seller.  To                                                               
provide specific  assistance would  require the  host of  an open                                                               
house  to have  any prospective  buyer jump  up and  sign a  form                                                               
before allowing  the person to  look around, which is  not likely                                                               
to happen.                                                                                                                      
                                                                                                                                
SENATOR FRENCH then  referred to lines 23-25 on page  3 and asked                                                               
for an explanation.                                                                                                             
                                                                                                                                
MS.  McCONNOCHIE said  an  example would  be  if she  represented                                                               
Senator French when selling his  real estate. If, after the sale,                                                               
Senator French  did not intend  to buy another piece  of property                                                               
but  planed to  rent,  she could  not represent  him  if she  was                                                               
representing the owner of a home that he wanted to rent.                                                                        
                                                                                                                                
CHAIR  SEEKINS asked  if that  would also  apply to  a home  sale                                                               
rather than a rental.                                                                                                           
                                                                                                                                
MS. McCONNOCHIE  explained that she  could represent him  to sell                                                               
his home and buy  another home, but she could not  do that if she                                                               
was  also working  for  the owner  of the  property  for sale  or                                                               
lease.                                                                                                                          
                                                                                                                                
SENATOR  FRENCH asked  about  the duties  of  a neutral  licensee                                                               
[Sec. 08.88.645].                                                                                                               
                                                                                                                                
REPRESENTATIVE  ROKEBERG said  the former  relationship that  may                                                               
have been  created by dual  agency is redefined in  that section.                                                               
He stated, "They are to cover  similar situations. They are not -                                                               
they may be analogous but they're not the same."                                                                                
                                                                                                                                
SENATOR FRENCH said his question  revolves around the language on                                                               
page 9  in subsection (5), which  talks about what a  realtor can                                                               
and cannot  do when working  as a  neutral licensee with  a buyer                                                               
and seller on either side.  He said he finds subsection (5)(b)(2)                                                               
to  be problematic  because it  almost allows  the realtor  to do                                                               
what the realtor  is prohibited from doing in (5)(A)  and (B). He                                                               
suggested changing the word "would" to "should" in (5)(b)(2).                                                                   
                                                                                                                                
MS.  McCONNOCHIE  clarified  that the  relationship  between  the                                                               
buyer,  seller, and  realtor  would not  be  adversarial and  the                                                               
realtor would  not be  trying to advocate  for either  party. The                                                               
realtor would, in effect, be working  as a go-between for the two                                                               
parties.  If  Senator French was buying a house  through her, and                                                               
she  had prior  written  permission  from both  parties  to be  a                                                               
neutral agent  and he told her  he would pay a  certain price and                                                               
that she  could take  that price  to the  seller, but  the seller                                                               
gave  her permission  to offer  a lower  price, she  could inform                                                               
Senator French of the lower price.                                                                                              
                                                                                                                                
CHAIR  SEEKINS  said  he  understands (5)(B)  to  say  that  with                                                               
written consent, the neutral agent  could "work both sides of the                                                               
street."                                                                                                                        
                                                                                                                                
MS. McCONNOCHIE agreed and repeated  that this relationship would                                                               
not be adversarial  and the realtor would be working  to create a                                                               
win-win situation  for both parties, which  this legislation will                                                               
allow. She pointed out what is  most often more important to both                                                               
parties are the terms of the transaction rather than the price.                                                                 
                                                                                                                                
REPRESENTATIVE ROKEBERG told  members this bill is  the result of                                                               
a significant  amount of  effort that goes  back eight  years. He                                                               
believes HB  29 is  a major  consumer protection  bill and  is an                                                               
excellent example  of the proper  balance between  protecting the                                                               
consumer and allowing commerce to  move forward. He added that in                                                               
1992 the  fire agency  provisions of law  were adopted,  but they                                                               
are broken and  the statute has been modified to  make the system                                                               
work better  for all parties.  He complimented the people  in the                                                               
industry  for  working  on   consumer  protection.  For  example,                                                               
realtors will have  to provide a pamphlet to every  client of the                                                               
rights and obligations of the licensee.                                                                                         
                                                                                                                                
CHAIR  SEEKINS  asked  if  anything  in the  bill  will  make  it                                                               
difficult for  a person to  craft their own  documents consistent                                                               
with state law to sell or buy a home.                                                                                           
                                                                                                                                
REPRESENTATIVE   ROKEBERG    said   nothing    whatsoever.   This                                                               
legislation only  applies to licensees  regulated under  Title 8,                                                               
occupational licensing.                                                                                                         
                                                                                                                                
CHAIR SEEKINS  asked if  HB 29 puts  constraints on  the licensee                                                               
and not on the way a buyer wants to buy.                                                                                        
                                                                                                                                
REPRESENTATIVE ROKEBERG  replied, "This regulates the  conduct of                                                               
a licensee."                                                                                                                    
                                                                                                                                
SENATOR  FRENCH  declared  a  conflict   of  interest  with  this                                                               
legislation as his wife is a real estate agent.                                                                                 
                                                                                                                                
SENATOR OGAN moved SCS CSHB 29(JUD) from committee with                                                                         
individual recommendations and its zero fiscal note.                                                                            
                                                                                                                                
The motion carried with Senators French, Ogan and Seekins in                                                                    
favor.                                                                                                                          

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