O.C.G.A. 43-40-1 GEORGIA CODE Copyright 2008 by The State of Georgia All rights reserved. *** Current through the 2008 Regular Session *** TITLE 43. PROFESSIONS AND BUSINESSES CHAPTER 40. REAL ESTATE BROKERS AND SALESPERSONS O.C.G.A. 43-40-1 (2008) 43-40-1. Definitions As used in this chapter, the term: (1) "Associate broker" means a person who acts on behalf of a real estate broker in performing any act authorized by this chapter to be performed by the broker. (2) "Broker" means any person who, for another, and who, for a fee, commission, or any other valuable consideration or with the intent or expectation of receiving the same from another: (A) Negotiates or attempts to negotiate, or assists in procuring prospects for the listing, sale, purchase, exchange, renting, lease, or option for any real estate or of the improvements thereon; (B) Holds himself or herself out as a referral agent for the purpose of securing prospects for the listing, sale, purchase, exchange, renting, lease, or option for any real estate; (C) Collects rents, assessments, or other trust funds or attempts to collect rents, assessments, or other trust funds; (D) Is employed by or on behalf of the owner or owners of lots, time-share intervals, or other parcels of real estate at a salary, fee, commission, or any other valuable consideration to sell such real estate or any part thereof in lots or parcels or intervals or other disposition thereof; (E) Engages in the business of charging an advance fee or contracting for collecting of a fee, other than an advertising fee, in connection with any contract whereby he or she undertakes primarily to promote the sale of real estate either through its listing in a publication issued primarily for such purpose, or for referral of information concerning such real estate to brokers, or both; 1
(F) Auctions or offers or attempts or agrees to auction real estate; (G) Buys or offers to buy, sells or offers to sell, or otherwise deals in options to buy real estate; (H) Performs property management services or community association management services; (I) Provides or attempts to provide to any party to a real estate transaction consulting services designed to assist the party in the negotiations or procurement of prospects for the listing, sale, purchase, exchange, renting, lease, or option for any real estate or the improvements thereon; or (J) Advertises or holds himself or herself out as engaged in any of the foregoing. (2.1) "Brokerage agreement" means an express written contract wherein the client promises to pay the real estate broker a valuable consideration or agrees that the real estate broker may receive a valuable consideration from another in consideration of the broker's producing a seller, buyer, tenant, or landlord ready, able, and willing to sell, buy, or rent the property or in consideration of the broker's performing property management services or performing community association management services. (3) "Commission" means the Georgia Real Estate Commission. (4) "Commissioner" means the real estate commissioner. (4.1) "Community association" means an owner organization of a residential or mixed use common interest realty association in which membership is mandatory as an incident of ownership within the development, such as condominiums, cooperatives, homeowner associations, timeshares, lot division with restrictions in management, and other forms of common interest or planned developments wherein there is a common management. (4.2) "Community association management services" means the provision, for a valuable consideration, to others of management or administrative services on, in, or to the operation of the affairs of a community association, including, but not limited to, collecting, controlling, or disbursing the funds; obtaining insurance, arranging for and coordinating maintenance to the association property; and otherwise overseeing the day-to-day operations of the association. (4.3) "Community association manager" means a person who acts on behalf of a real estate broker in providing only community association management services. 2
(4.4) "Firm" means any business entity, including, but not limited to, a corporation, partnership, limited liability company, or sole proprietorship. (5) "Licensee" means any person who is licensed as a community association manager, salesperson, associate broker, or broker. (5.1) "Ministerial acts" means those acts related to real estate brokerage activities which a licensee or a licensee's employee performs and which do not require discretion or the exercise of the licensee's own judgment. (6) "Person" means individuals and firms. (7) "Property management services" means the provision, for a valuable consideration, to another of marketing, including referring prospective tenants; leasing; physical, administrative, or financial maintenance; and overall management of real property; or supervision of the foregoing activities for another pursuant to a property management agreement. (8) "Purchaser" means a person who acquired or attempts to acquire or succeeds to an interest in land. (9) "Real estate" means condominiums and leaseholds, as well as any other interest or estate in land, whether corporeal, incorporeal, freehold or nonfreehold and whether the real estate is situated in this state or elsewhere; and shall also include a mobile home when such mobile home is affixed to land. "Mobile home," as used in this paragraph, means any factory-built structure or structures equipped with the necessary service connections and made so as to be readily movable as a unit or units and designed to be used as a dwelling unit or units. (10) "Salesperson" means any person, other than an associate broker, who acts on behalf of a real estate broker in performing any act authorized by this chapter to be performed by the broker. (11) "State" means any state, district, territory, possession, or province of the United States or Canada and any sovereign nation or any political subdivision of such sovereign nation. 43-40-3.1. Rules and regulations Notwithstanding any provision of law to the contrary, with respect to any form or application required to be completed by an applicant or a licensee, or with respect to any document required to be issued by the commission, the commission is authorized to promulgate rules and regulations setting forth: 3
(1) Any procedure that will reduce the use of paper forms, applications, or documents; (2) Any procedure that will reduce the necessity for the commission to maintain paper documents; (3) The procedure for submitting or issuing any such form, application, or document by facsimile or electronic means; and (4) The procedure for satisfying any signature requirement on any such form by electronic signature, voice signature, or other means so long as appropriate security measures are implemented that assure security and verification of any required signature. As used in this Code section, the term "electronic signature" shall have the same meaning as provided in Code Section 10-12-3. Rules and Regulations 520-1-.02 Definitions. (1) Terms Defined by 43-40-1. As used in this Chapter and Chapters 520-2 and 520-3, the terms associate broker, broker, commission, commissioner, community association, community association management services, community association manager, licensee, person, property management services, purchaser, real estate, and salesperson have the same definitions as provided for in O.C.G.A. Section 43-40-1. (2) Other Terms. As used in this Chapter and Chapters 520-2 and 520-3, the term: (a) Agency means every relationship in which a real estate broker acts for or represents another by the latter s express authority in a real property transaction; (b) Applicant means any person who has completed all of the requirements for a license or an approval as set forth in O.C.G.A. Chapter 43-40 and in any Chapter of the Commission s Rules and Regulations and who has submitted a complete application on the proper form accompanied by the correct fee; (c) Bank means any financial institution regulated by a member of the federal financial institutions examination counsel and authorized to provide federally insured checking accounts; (d) Brokerage engagement means a written contract wherein the seller, buyer, landlord, or tenant becomes the client of the broker and promises to pay the broker a valuable consideration or agrees that the real estate broker may receive a valuable consideration from another in consideration of the broker s producing 4
a seller, buyer, tenant, or landlord ready, able, and willing to sell, buy, or rent the property or in consideration of the broker s performing property management services or performing community association management services. Such contracts or agreements as an exclusive listing contract, an open listing contract, a buyer broker agreement, a property management agreement, a community association management agreement, and an exclusive tenant representation contract are examples of brokerage engagements; (e) "Brokerage relationship" means the agency and non-agency relationships which may be formed between the broker and the broker's clients and customers as a result of the brokerage engagement; (f) Buyer means a purchaser, a person who acquired or attempts to acquire or succeeds to an interest in real estate; (g) Candidate for Licensure means any person who is in the process of completing the requirements for a license or an approval as set forth in O.C.G.A. Chapter 43-40 and in any Chapter of the Commission s Rules and Regulations but who has not successfully completed all of them. (h) Client means a person who has entered into a brokerage engagement with a real estate broker; (i) Customer means a person who has not entered into a brokerage engagement with a broker but for whom a broker may perform ministerial acts in a real estate transaction; (j) "Dual agent" means a broker who simultaneously has a brokerage relationship with both seller and buyer or both landlord and tenant in the same real estate transaction; (k) Firm means a sole proprietorship, partnership, limited liability company, or corporation licensed by the Commission as a broker; (l) Franchise name means any name, the use of which requires obtaining permission from another who has an existing and continuing right in that trade name by virtue of any state or federal law; (m) Franchisee means a firm licensee authorized to use a franchisor s trade name as part of or in conjunction with the licensee firm s name; (n) Franchisor means a business entity owning a trade name whose use by others the owner of the trade name controls and authorizes; (o) Instructional hour means a period of time of at least fifty minutes of instruction or other learning activity; 5
(p) Ministerial acts means those acts which the broker or affiliated licensee performs for a person which do not require discretion or the exercise of the broker or affiliated licensee s own judgment; (q) Statutory overnight delivery means delivery of a document through the United States Postal Service or through a commercial firm which is regularly engaged in the business of document delivery or document and package delivery in which the sender: 1. has directed that delivery be not later than the next business day following the day on which the document is received for delivery by the United States Postal Service or the commercial firm and 2. receives a receipt acknowledging receipt of the document signed by addressee or an agent of the addressee; and (r) Timely means a reasonable time under the particular circumstances. BRRETA Definitions TITLE 10. COMMERCE AND TRADE CHAPTER 6A. BROKERAGE RELATIONSHIPS IN REAL ESTATE TRANSACTIONS O.C.G.A. 10-6A-3 (2008) 10-6A-3. Definitions As used in this chapter, the term: (1) "Agency" means every relationship in which a real estate broker acts for or represents another as a client by the latter's written authority in a real property transaction. (2) "Broker" means any individual or entity issued a broker's real estate license by the Georgia Real Estate Commission pursuant to Chapter 40 of Title 43. The term "broker" includes the broker's affiliated licensees except where the context would otherwise indicate. (3) "Brokerage" means the business or occupation of a real estate broker. (4) "Brokerage engagement" means a written contract wherein the seller, buyer, landlord, or tenant becomes the client of the broker and promises to pay the broker a valuable consideration or agrees that the broker may receive a valuable consideration from another in consideration of the broker producing a seller, buyer, tenant, or landlord ready, able, and willing to sell, buy, or rent the property or performing other brokerage services. (5) "Brokerage relationship" means the agency and nonagency relationships which may be formed between the broker and the broker's clients and customers, 6
as described in this chapter. (6) "Client" means a person who is being represented by a real estate broker in an agency capacity pursuant to a brokerage engagement. (7) "Common source information companies" means any person, firm, or corporation that is a source, compiler, or supplier of information regarding real estate for sale or lease and other data and includes but is not limited to multiple listing services. (8) "Customer" means a person who is not being represented by a real estate broker in an agency capacity pursuant to a brokerage engagement but for whom a broker may perform ministerial acts in a real estate transaction pursuant to either a verbal or written agreement. (9) "Designated agent" means one or more licensees affiliated with a broker who are assigned by the broker to represent solely one client to the exclusion of all other clients in the same transaction and to the exclusion of all other licensees affiliated with the broker. (10) "Dual agent" means a broker who simultaneously has a client relationship with both seller and buyer or both landlord and tenant in the same real estate transaction. (11) "Material facts" means those facts that a party does not know, could not reasonably discover, and would reasonably want to know. (12) "Ministerial acts" means those acts described in Code Section 10-6A-14 and such other acts which do not require the exercise of the broker's or the broker's affiliated licensee's professional judgment or skill. (13) "Timely" means a reasonable time under the particular circumstances. (14) "Transaction broker" means a broker who has not entered into a client relationship with any of the parties to a particular real estate transaction and who performs only ministerial acts on behalf of one or more of the parties, but who is paid valuable consideration by one or more parties to the transaction pursuant to a verbal or written agreement for performing brokerage services. 7