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RULES AND REGULATIONS

STATE REAL ESTATE COMMISSION

[49 PA. CODE CH. 35]

Reciprocal License

[35 Pa.B. 4711]

   The State Real Estate Commission (Commission) amends Chapter 35 to read as set forth in Annex A. This final-form rulemaking addresses reciprocal licenses.

Statutory Authority

   The final-form rulemaking is authorized under sections 201, 501, 601, 602 and 604 of the Real Estate Licensing and Registration Act (RELRA) (63 P. S. §§ 455.201, 455.501, 455.601, 455.602 and 455.604).

Response to Public Comments and Regulatory Review and Amendments in Final Form Rulemaking

   Notice of proposed rulemaking was published at 34 Pa.B. 4913 (September 4, 2004). Publication was followed by a 30-day public comment period during which the Commission received comments from the Pennsylvania Association of Realtors (PAR). Following the close of the public comment period, the Commission received comments from the House Professional Licensure Committee (HPLC) and the Independent Regulatory Review Commission (IRRC). The Senate Consumer Protection and Professional Licensure Committee (SCP/PLC) did not comment.

   The following is a section-by-section description of the comments and the Commission's response.

§ 35.201.  Definitions.

Broker, builder-owner salesperson, campground membership salesperson, cemetery broker, cemetery salesperson, licensee and salesperson

   The definitions of ''broker,'' ''builder-owner salesperson,'' ''campground membership salesperson,'' ''cemetery broker,'' ''cemetery salesperson,'' ''licensee'' and ''salesperson'' contain the phrase ''unless otherwise specified.'' The HPLC recommended that the Commission delete this phrase in each of the definitions. The Commission found this suggestion reasonable and has amended each definition accordingly.

Broker of record

   In the definition of ''broker of record,'' the Commission deleted language regarding a limited broker's license. The HPLC asked for an explanation why the Commission deleted this language. In that limited broker's licenses were removed from the RELRA on June 29, 1990, the Commission has removed the reference from the regulations.

Main office

   The HPLC recommended that the Commission add the phrase ''other than a branch office'' to the definition of ''main office.'' The HPLC also suggested that ''main office'' and ''branch office'' be further amended to differentiate between the two types of offices. The Commission found these suggestions reasonable and has amended both definitions.

   The PAR commented that the definitions for ''main office'' and ''branch office'' should be removed because they are unnecessary. The PAR recommended replacing the terms with ''fixed office.'' However, various provisions of the regulations specifically apply to main offices; other provisions apply to branch offices. The Commission was unable to use one definition to refer to both offices.

Principal place of business

   The PAR recommended that the definition of ''principal place of business'' be amended to be ''the principal office address at which a licensee offers real estate services.'' However, to qualify for a reciprocal license under section 602(a) of the RELRA, among other requirements, the licensee's principal place of business must not be in this Commonwealth. When the principal place of business moves to this Commonwealth, under section 602(g) of the RELRA, the licensee must convert the reciprocal license to a standard license. Because the PAR's recommended definition does not incorporate this distinction, the Commission was unable to implement the suggestion.

   Similarly, the Commission believes that it would be impracticable to determine ''principal place of business'' based on sales volume as the PAR suggested. Because real estate offices' sales volume fluctuates monthly or annually, or both, a reciprocal broker with an office in this Commonwealth that has an unusually high volume of sales at one time would be required to convert the reciprocal license to a standard license negating the intent of the RELRA. The Commission believes that a better construction would be to tie the ''principal place of business'' to the state where the licensee holds a standard license.

   Notwithstanding the Commission's decision not to amend the definition, the Commission agrees with the PAR that for reciprocal licensees, their ''main office'' and the ''principal place of business'' are the same out-of-State address. Any offices of reciprocal licensees opened within this Commonwealth are characterized as ''branch offices.''

Reciprocal license

   In the proposed rulemaking, the definition of ''reciprocal license'' referred only to licensees from other states that have executed reciprocal agreements with the Commission. The HPLC, IRRC and PAR commented that section 602(e) of the RELRA permits licensees from states that have not executed reciprocal agreements with the Commission to also obtain a reciprocal license. The Commission agreed with the commentators and has amended the definition accordingly.

Standard licensee

   The HPLC commented that the definition of ''standard licensee'' could be interpreted as applying to both standard and reciprocal licensees. The HPLC and IRRC recommended that the definition of ''standard licensee'' be amended to clarify that it applies only to nonreciprocal license holders. To obtain a standard license under the definition, the licensee must fulfill the education/experience and examination requirements of the RELRA. The examination requirement in the RELRA involves passing both the National and Pennsylvania portion of the license examination. While reciprocal licensees are required to pass an examination in the state that issued their licenses, applicants have not passed the Pennsylvania portion of the examination and therefore would not automatically qualify for a standard license as the HPLC suggests. Nonetheless, owing to the HPLC and IRRC's concern, the Commission amended this definition in final-form rulemaking to specifically exclude reciprocal licensees.

   The PAR and IRRC questioned whether the Commission intended to limit the issuance of standard licenses to only applicants who reside in this Commonwealth. The Commission does not. Residency is not a requirement for any license. Two classes of out-of-State applicants qualify for standard licenses (assuming that the education/experience and examination requirements have been met): (1) current out-of-State licensees from states that have not either executed reciprocal agreements with the Commission or whose licensure requirements are not substantially comparable with those of this Commonwealth; and (2) out-of-State applicants who desire a standard license.

§ 35.222.  Licensure as a broker.

§ 35.223.  Licensure as salesperson.

§ 35.224.  Licensure as cemetery broker.

§ 35.225.  Licensure as cemetery salesperson.

§ 35.226.  Licensure as builder-owner salesperson.

§ 35.227.  Licensure as rental listing referral agent.

§ 35.228.  Licensure as campground membership salesperson.

§ 35.229.  Licensure as time-share salesperson.

   Proposed §§ 35.222(b)(1), 35.225(b)(1), 35.226(b)(1), 35.227(b)(1), 35.228(b)(1), 35.229(b)(1) delineate the requirements for reciprocal licenses for each licensure class under the RELRA. When another state agreed to issue a license to a standard Pennsylvania licensee without further requirement, the applicant needed only possess a current broker's license issued by that state. When an applicant applied from a state which would require a standard Pennsylvania licensee to complete additional education, experience or examination requirements, the applicant for a Pennsylvania license would be required to complete equivalent requirements. The HPLC made two comments: a reciprocal license can be issued to an applicant from a state that has not executed a reciprocal agreement with this Commonwealth and the section is internally inconsistent.

   Regarding the first comment, the Commission agrees with the HPLC and the PAR that section 602(e) of the RELRA permits licensees from states that have not executed reciprocal agreements with the Commission to also obtain a reciprocal license. The Commission has made the same amendment to §§ 35.222(b)(1), 35.223(b)(1), 35.224(b)(1), 35.225(b)(1), 35.226(b)(1), 35.227(b)(1), 35.228(b)(1) and 35.229(b)(1) that it did to the definition of ''reciprocal license'' in § 35.201 (relating to definitions).

   Regarding the second comment, in addition to authorizing the Commission to issue reciprocal licenses to applicants from states that have either executed reciprocal agreements or have comparable requirements, section 602(e) of the RELRA also authorizes the Commission to issue reciprocal licenses to applicants from states whose requirements are not comparable. In the latter instance, the reciprocal applicants are required to complete whatever equivalent requirements would be imposed on Pennsylvania applicants. For example, if Pennsylvania applicants would be required to take an additional state-specific ethics course in the other state to obtain a license, the reciprocal applicant would be required to take a Pennsylvania-specific ethics course to obtain a license in this Commonwealth. Owing to the HPLC's concern that this interpretation was not clearly reflected in proposed rulemaking, the Commission has also amended the second clause in §§ 35.222(b)(1), 35.223(b)(1), 35.224(b)(1), 35.225(b)(1), 35.226(b)(1), 35.227(b)(1), 35.228(b)(1) and 35.229(b)(1) accordingly.

   Proposed §§ 35.222(b)(3)(iv), 35.223(b)(2)(iv), 35.224(b) (3)(iv), 35.225(b)(3)(iv), 35.226(b)(3)(iv), 35.227(b)(3)(iv), 35.228(b)(3)(iv) and 35.229(b)(3)(iv) specifically required applicants to comply with the out-of-State service provisions in § 35.221(3) (relating to general requirements). The PAR recommended that these provisions be deleted because the introduction to subsection (b) includes the requirement that applicants comply with § 35.221. The Commission found this recommendation reasonable and has removed these provisions in this final-form rulemaking.

   The HPLC also questioned why the Commission does not require reciprocal applicants to provide their license number and date of issuance of that license on their reciprocal application. Because the reciprocal state is required to provide a certification to the Commission including this information, the Commission believed that requiring it also from the licensee would be unnecessary.

§ 35.229.  Licensure as time-share salesperson.

   The PAR recommended that the pronoun in subsection (b)(4) be removed and replaced with gender-neutral language to parallel § 35.228(b)(4) (relating to licensure as campground membership salesperson). The Commission has made this change in this final-form rulemaking.

§ 35.241.  General office requirements.

   Section 35.241 contains general office requirements. The PAR recommended that the Commission delete all of its revisions. As previously explained, ''fixed office'' does not accurately reflect the distinction between main and branch offices. In addition, the current regulation refers to ''jurisdiction'' instead of state. An earlier version of the amendments to the RELRA referenced ''jurisdiction.'' However, the final version removed all references to ''jurisdiction'' and replaced them with references to ''state.'' Accordingly, in this final form rulemaking, the Commission has not amended this provision further.

§ 35.244.  Supervision and operation of office.

   Section 35.244 permits either a standard or reciprocal broker to supervise a real estate office and real estate licensees in this Commonwealth. The HPLC questioned why the Commission would permit a reciprocal licensee to supervise a Pennsylvania office. Section 602(h) of the RELRA specifically confers the same standards and responsibilities on reciprocal licensees as standard licensees (with the exception of their being able to be a member of the Commission, their completing the Pennsylvania continuing education requirement and their passing the Pennsylvania examination). Given that the standards and responsibilities are the same, the Commission believes that there is no statutory basis for preventing reciprocal brokers from supervising real estate offices in this Commonwealth. In fact, before obtaining a reciprocal license, the applicant must verify that the applicant has reviewed, is familiar with and agrees to be bound by the requirements in the RELRA and this chapter. Additionally, permitting reciprocal brokers to supervise their associate brokers and salespersons who have obtained reciprocal licenses in this Commonwealth provides a continuity in supervision.

§ 35.245.  Display of licenses in office.

   Proposed § 35.245 required the broker to conspicuously display the licenses of all standard license holders in the broker's employ in the broker's main office, all reciprocal license holders in the broker's employ in the broker's branch office and a list of all the licensees working out of a particular office at each office. The PAR commented that this provision would be confusing to implement. Upon further reflection, the Commission agrees with the PAR and has adopted, in this final-form rulemaking, a simpler rule applicable to all licensees: Effective with the next renewal period, all real estate licenses must be maintained in the broker's main office and each branch office must maintain a list of employees working out of that office. Because the broker has supervisory responsibility, the Commission continues to believe that original licenses should be maintained at the broker/cemetery broker's main office. However, the Commission does not believe that it is necessary for the licenses to be conspicuously displayed. At the time this provision was adopted, consumers and investigators did not have immediate access to the licensure status of a licensee. Today, however, the Bureau of Professional and Occupational Affairs' online record system allows consumers and investigators immediate access eliminating the need for conspicuous display. Accordingly, in this final-form rulemaking, the Commission has amended § 35.245 to require brokers and cemetery brokers to maintain all original licenses in their main office and a list of licensees in the branch office where the licensees work.

   IRRC also recommended that the term ''broker'' be added after ''cemetery.'' Finding this recommendation reasonable, the Commission has made this amendment.

§ 35.246.  Inspection of office.

   In the proposed rulemaking, the Commission attempted through the inspection rules to further clarify that a standard licensee would have a main and branch office in this Commonwealth while a reciprocal licensee would only have a branch office in this Commonwealth. The PAR recommended that this language be removed because it is unnecessary. Owing to the PAR's concern, the Commission deleted the new language and has returned to the original version.

§ 35.255.  Reciprocal licenses.

   Proposed § 35.255(c) required reciprocal licensees to advise the Commission within 90 days of changing their principal places of business from another state to this Commonwealth, thereby requiring them to convert their reciprocal license to a standard license by the end of the renewal period. IRRC requested that the Commission justify the 90-day period. The HPLC recommended that the Commission reduce the notification period from 90 days to 30 days. The Commission found the HPLC's recommendation acceptable and has reduced the notification period to 30 days.

   The HPLC and IRRC also recommended that an office inspection occur whenever a reciprocal licensee converts that license to a standard license. Prior to any real estate office being opened in this Commonwealth, an office must be inspected and found in compliance with the regulations. If the reciprocal licensee already had a real estate office in this Commonwealth, an office inspection would have already been conducted. In that the professional standards and responsibilities of standard and reciprocal license holders are the same, the Commission does not believe that there would be any reason to reinspect the real estate office without further evidence that another inspection was necessary. When the licensee seeking to convert a reciprocal license would also be opening a real estate office in this Commonwealth, an office inspection would be performed prior to that office being opened.

   The PAR also suggested a technical amendment to subsection (a) to clarify that the renewal would be for a reciprocal license. Finding this suggestion reasonable, the Commission has amended this subsection accordingly.

§ 35.271.  Examination for broker's license.

   The HPLC recommended two changes to § 35.271(b): the addition of a closing bracket to current subsection (b) and renumbering of the paragraphs in the subsection. The Commission found both recommendations reasonable and has made the changes.

   The HPLC also asked the Commission to provide an explanation of the method it uses to count experience in subsection (b)(6). The Commission responds as follows. To qualify to take the broker's examination, an applicant must acquire 200 points. Points are acquired based on the services provided. In the commercial/industrial area, an applicant would receive 5 points for each sale, 5 points for an exclusive listing which sold, 5 points for each lease and 1 point for an unsold exclusive listing. In the residential area, an applicant would receive 5 points for each sale, 5 points for an exclusive listing which sold, 1 point for each lease and 1 point for an unsold exclusive listing. For each month of full-time employment in property management assistance, an applicant is granted 6 points. A month of full-time employment is defined as a month in which the applicant devoted full-time to performing in this capacity and which the applicant did not perform or earn points for any other real estate activity.

   An applicant who is not licensed may be considered to have fulfilled the experience requirement if the applicant has 3 years of equivalent experience (that is, services which fall within the exemptions in section 203 of the RELRA (63 P. S. § 455.203)). An applicant who possesses a real estate broker's license in another jurisdiction will be awarded credit for out-of-State experience provided that the Commission received a certification of licensure from the real estate licensing authority of that jurisdiction indicating active licensure within the last 5 years prior to the application date.

§ 35.272.  Examination for salesperson's license.

§ 35.274.  Examination for builder-owner salesperson's license.

   Sections 35.272(c) and 35.274(b) refer to ''A licensee who is converting that license . . . .'' The HPLC and the PAR recommended that the Commission replace the word ''that'' with ''reciprocal.'' Owing to the HPLC's and the PAR's concerns, the Commission has revised the wording of both provisions.

§ 35.272.  Examination for salesperson's license.

§ 35.273.  Examination for cemetery broker's license.

§ 35.275.  Examination for rental listing referral agent's license.

   Proposed §§ 35.273(a)(5) and 35.275(b)(4) set forth the requirement that to qualify for a standard license, the applicant's education had to be completed within 10 years prior to passing the examination except for applicants converting a reciprocal license to a standard license. The PAR recommended that the same provision be added to § 35.275(b)(4). In that the subsections immediately following each of the provisions contain an exception for applicants converting a reciprocal license to a standard license, the Commission believes that the additional provisions are unnecessary. Accordingly, in this final-form rulemaking, the Commission has deleted the exception in §§ 35.273(a)(5) and 35.275(b)(4).

   The HPLC recommended that § 35.275 be renumbered. Finding this recommendation to be reasonable, the Commission has renumbered the section.

§ 35.325.  Escrow account.

   In § 35.325(b), the Commission replaced the reference to an employing broker with broker of a sole proprietorship and removed partnership, association or corporation. The HPLC questioned whether the change reflects a policy change and, if so, sought the Commission's rationale. By amending this subsection, the Commission merely made a corrective amendment. ''Broker of record'' is defined as a broker responsible for the real estate transactions of a partnership, association or corporation. Given this definition, the inclusion of ''partnership, association or corporation'' was mere surplusage. Similarly, in the sole proprietorship context, the correct reference is to a broker who is a sole proprietor rather than an employing broker.

§ 35.384.  Qualifying courses.

   The HPLC and IRRC questioned why the Commission was deleting the requirement that licensees complete a required course developed by the Commission. The deletion of this requirement actually stemmed from a final-form rulemaking package (16A-561) that was simultaneously undergoing regulatory review and became effective on December 11, 2004. See 34 Pa.B. 6530 (December 11, 2004). In the preamble to that final-form rulemaking, the Commission explained that:

In determining whether to retain the required course, the Commission considered the frequency of amendments to the RELRA and the regulations as well as the number of fair housing disciplinary cases. The Commission determined that except in cases where the RELRA or regulations are substantially modified or where, in the Commission's view, licensees require specific Commission guidance, licensees should be able to take continuing education in subjects that directly benefit their practice or interest. As part of its on-going review of its regulations, however, the Commission intends to monitor trends in disciplinary proceedings. Where the Commission finds an increase in specific violations, it will consider reinstituting a required course. As in the past, if a required course becomes necessary, the Commission will notify all licensees and real estate education providers at least 6 months prior to the end of the renewal period.

   Because subsection (b) was also being amended in this proposed rulemaking package, the Commission included the amendatory language from the prior regulatory package as well.

Subchapter H.  CONTINUING EDUCATION

   In this final-form rulemaking, the Commission also amended §§ 35.382--35.384 to include the revisions made in the final-form rulemaking published at 34 Pa.B. 6530.

Fiscal Impact and Paperwork Requirements

   The final-form rulemaking should have no fiscal impact on the Commonwealth, its political subdivisions or the public. The final-form rulemaking should have a positive fiscal impact on the regulated community because the final-form rulemaking reduces the legal, accounting, reporting or other paperwork requirements on the regulated community.

Sunset Date

   The Commission continually monitors the effectiveness of its regulations through communication with the regulated population. Accordingly, no sunset date has been set.

Regulatory Review

   Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on September 13, 2003, the Board submitted a copy of the notice of proposed rulemaking, published at 34 Pa.B. 4913, to IRRC and the Chairpersons of the HPLC and the SCP/PLC for review and comment.

   Under section 5(c) of the Regulatory Review Act, IRRC, the HPLC and the SCP/PLC were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing the final-form rulemaking, the Commission has considered all comments from IRRC, the HPLC, the SCP/PLC and the public.

   Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), on June 28, 2005, the final-form rulemaking was approved by the HPLC. On July 13, 2005, the final-form rulemaking was deemed approved by SCP/PLC. Under section 5.1(e) of the Regulatory Review Act, IRRC met on July 14, 2005, and approved the final-form rulemaking.

Contact Person

   Further information can be obtained by contacting Deborah Misheck, Administrative Assistant, State Real Estate Commission, P. O. Box 2649, Harrisburg, PA 17105-2649, www.dos.state.pa.us/bpoa.

Findings

   The Commission finds that:

   (1)  Public notice of proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and the regulations promulgated thereunder, 1 Pa. Code §§ 7.1 and 7.2.

   (2)  A public comment period was provided as required by law and all comments were considered.

   (3)  This final-form rulemaking does not enlarge the purpose of proposed rulemaking published at 34 Pa.B. 4913.

   (4)  The final-form rulemaking is necessary and appropriate for administering and enforcing the authorizing act identified in this preamble.

Order

   The Commission, acting under its authorizing statutes, orders that:

   (a)  The regulations of the Commission, 49 Pa. Code Chapter 35, are amended by amending §§ 35.203, 35.221, 35.241, 35.242, 35.244, 35.271, 35.305 and 35.325 to read as set forth at 34 Pa.B. 4913; and by amending §§ 35.201, 35.222--35.229, 35.245, 35.255, 35.272, 35.273, 35.274, 35.275 and 35.382--35.384 to read as set forth in Annex A.

   (Editor's Note:  The Commission has withdrawn the proposal to amend § 35.246, included in the proposed rulemaking at 34 Pa.B. 4913.)

   (b)  The Commission shall submit this order, 34 Pa.B. 4913 and Annex A to the Office of General Counsel and the Office of Attorney General as required by law.

   (c)  The Commission shall certify this order, 34 Pa.B. 4913 and Annex A and deposit them with the Legislative Reference Bureau as required by law.

   (d)  This order shall take effect on publication in the Pennsylvania Bulletin.

BEVERLY R. BROOKES,   
Chairperson

   (Editor's Note:  For the text of the order of the Independent Regulatory Review Commission, relating to this document, see 35 Pa.B. 4270 (July 30, 2005).)

   Fiscal Note:  Fiscal Note 16A-5610 remains valid for the final adoption of the subject regulations.

Annex A

TITLE 49.  PROFESSIONAL AND VOCATIONAL STANDARDS

PART I.  DEPARTMENT OF STATE

Subpart A.  PROFESSIONAL AND OCCUPATIONAL AFFAIRS

CHAPTER 35.  STATE REAL ESTATE COMMISSION

Subchapter B.  GENERAL PROVISIONS

§ 35.201.  Definitions.

   The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:

   Act--The Real Estate Licensing and Registration Act (63 P. S. §§ 455.101--455.902).

   Agency relationship--A fiduciary relationship between a broker or licensees employed by a broker and a consumer who becomes a principal.

   Associate broker--An individual broker who is employed by another broker.

   Branch office--Any fixed location in this Commonwealth, other than the main office, maintained by a broker or cemetery broker, devoted to the transaction of real estate business.

   Broker--An individual or entity holding either a standard or reciprocal license, that, for another and for a fee, commission or other valuable consideration, does one or more of the following:

   (i)  Negotiates with or aids a person in locating or obtaining for purchase, lease or acquisition of interest in real estate.

   (ii)  Negotiates the listing, sale, purchase, exchange, lease, time share and similarly designated interests, financing or option for real estate.

   (iii)  Manages real estate.

   (iv)  Represents himself or itself as a real estate consultant, counsellor or house finder.

   (v)  Undertakes to promote the sale, exchange, purchase or rental of real estate. This subparagraph does not apply to an individual or entity whose main business is that of advertising, promotion or public relations.

   (vi)  Undertakes to perform a comparative market analysis.

   (vii)  Attempts to perform one of the actions listed in subparagraphs (i)--(vi).

   Broker of record--The individual broker responsible for the real estate transactions of a partnership, association or corporation that holds a broker's license.

   Builder-owner salesperson--An individual holding either a standard or reciprocal license, who is a full-time employee of a builder-owner of single- and multi-family dwellings located in this Commonwealth and who is authorized, for and on behalf of, the builder-owner, to do one or more of the following:

   (i)  List for sale, sell or offer for sale real estate of the builder-owner.

   (ii)  Negotiate the sale or exchange of real estate of the builder-owner.

   (iii)  Lease or rent, or offer to lease, rent or place for rent, real estate of the builder-owner.

   (iv)  Collect or offer, or attempt to collect, rent for real estate of the builder-owner.

   Bureau--The Bureau of Professional and Occupational Affairs of the Department.

   Buyer agent--A licensee who enters into an agency relationship with a buyer/tenant.

   Campground membership--An interest, other than in fee simple or by lease, which gives the purchaser the right to use a unit of real property for the purpose of locating a recreational vehicle, trailer, tent, tent trailer, pickup camper or other similar device on a periodic basis under a membership contract allocating use and occupancy rights between other similar users.

   Campground membership salesperson--An individual holding either a standard or reciprocal license, who, either as an employee or an independent contractor, sells or offers to sell campground memberships under the active supervision of a broker. A licensed broker, salesperson or time-share salesperson does not need to possess a campground membership salesperson's license to sell campground memberships.

   Cemetery--

   (i)  A place for the disposal or burial of deceased human beings, by cremation or in a grave, mausoleum, vault, columbarium or other receptacle.

   (ii)  The term does not include a private family cemetery.

   Cemetery associate broker--An individual cemetery broker employed by another cemetery broker or by a broker.

   Cemetery broker--An individual or entity holding either a standard or reciprocal license, that is engaged as, or carrying on the business or acting in the capacity of, a broker exclusively within the limited field or branch of business that applies to cemetery lots, plots and mausoleum spaces or openings.

   Cemetery company--An individual or entity that offers or sells to the public the ownership, or the right to use, a cemetery lot.

   Cemetery salesperson--An individual holding either a standard or reciprocal license, employed by a broker or cemetery broker exclusively to perform the duties of a cemetery broker.

   Commission--The State Real Estate Commission.

   Comparative market analysis--A written analysis, opinion or conclusion by a contracted buyer's agent, transactional licensee or an actual or potential seller's agent relating to the probable sale price of a specified piece of real estate in an identified real estate market at a specified time, offered either for the purpose of determining the asking/offering price for the property by a specific actual or potential consumer or for the purpose of securing a listing agreement with a seller.

   Consumer--An individual or entity who is the recipient of any real estate service.

   Credit--A period of 15 hours of instruction.

   Department--The Department of State of the Commonwealth.

   Designated agent--One or more licensees designated by the employing broker, with the consent of the principal, to act exclusively as the agent or agents for the principal to the exclusion of all other licensees within the broker's employ.

   Distance education--Real estate instruction delivered in an independent or instructor-led format during which the student and the instruction are separated by distance and sometimes time.

   Dual agent--A licensee who acts as an agent for the buyer/tenant and seller/landlord in the same transaction.

   Hour of instruction--A period of at least 50 minutes.

   Independent learning--An interactive educational program, including computer-based technology courses, that provides no contact with an instructor.

   Initial interview--The first communication between a broker or salesperson and a consumer involving the personal/business or financial needs and motivations of the consumer. A discussion of the objective facts about the property, including dimensions, zoning classification, age, description or list price/lease amount, is not by itself a substantive discussion.

   Instructor-led learning--An interactive educational program, including a classroom or simulated classroom, that provides significant ongoing contact from the instructor to the participant during the learning process.

   Licensee--An individual or entity holding either a standard or reciprocal license, under the act. For purposes of the consumer notice in § 35.336(a)(relating to disclosure summary for the purchase or sale of residential or commercial real estate or for the lease of residential or commercial real estate when the licensee is working on behalf of the tenant), the term means a broker or salesperson.

   Listing broker--A broker who has entered into a written agreement with a seller/landlord to market property as a seller's agent, dual agent or transaction licensee.

   Main office--The fixed location other than a branch office of the broker or cemetery broker in this Commonwealth or another state devoted to the transaction of real estate business.

   Manager of record--The individual rental listing referral agent responsible for the rental listing transactions of a partnership, association or corporation that holds a rental listing referral agent's license.

   Nonexclusive buyer agency agreement--A nonexclusive agreement governed by a memorandum or contract wherein the buyer retains the right to employ multiple brokers to purchase or lease a property.

   Open listing agreement--A nonexclusive listing agreement governed by a memorandum or contract wherein the seller retains the right to employ multiple brokers to sell or lease a property.

   Principal--A consumer who has entered into an agency relationship with a broker or another licensee employed by the broker.

   Principal place of business--The fixed location of the broker or cemetery broker in the state where the licensee holds the equivalent of a standard license.

   Real estate--An interest or estate in land-whether corporeal or incorporeal, whether freehold or nonfreehold, whether the land is situated in this Commonwealth or elsewhere--including leasehold interests and time share and similarly designated interests.

   Real estate education provider--A person or institution who offers real estate education regardless of whether the learning is instructor-led or independent, excluding colleges, universities or institutes of higher learning accredited by the Middle States Association of Colleges and Secondary Schools or equivalent accreditation.

   Reciprocal license--A license issued to an individual or entity whose principal place of business for the provision of real estate services is outside of this Commonwealth and who holds a current license to provide real estate services from a state that either has executed a reciprocal agreement with the Commission or has qualifications for licensure which are substantially comparable to those required by the Commission.

   Rental listing referral agent--

   (i)  An individual or entity that owns or manages a business which collects rental information for the purpose of referring prospective tenants to rental units or locations of rental units.

   (ii)  The term does not include an official or employee of a public housing authority that is created under State or Federal law.

   Salesperson--An individual holding either a standard or reciprocal license, who is employed by a broker to do one or more of the following:

   (i)  Sell or offer to sell real estate, or list real estate for sale.

   (ii)  Buy or offer to buy real estate.

   (iii)  Negotiate the purchase, sale or exchange of real estate.

   (iv)  Negotiate a loan on real estate.

   (v)  Lease or rent real estate, or offer to lease or rent real estate or to place real estate for rent.

   (vi)  Collect rent for the use of real estate, or offer or attempt to collect rent for the use of real estate.

   (vii)  Assist a broker in managing property.

   (viii)  Perform a comparative market analysis.

   Seller agent--A licensee who enters into an agency relationship with a seller/landlord.

   Standard license--A license, other than a reciprocal license, issued to an individual or entity who has fulfilled the education/experience and examination requirements of the act.

   Subagent--A licensee, not in the employ of the listing broker, who acts or cooperates with the listing broker in selling property as a seller's/landlord's agent and is deemed to have an agency relationship with the seller.

   Time share--

   (i)  The right, however evidenced or documented, to use or occupy one or more units on a periodic basis according to an arrangement allocating use and occupancy rights of that unit or those units between other similar users. As used in this definition, the term ''unit'' is a building or portion thereof permanently affixed to real property and designed for separate occupancy or a campground membership or portion thereof designed for separate occupancy.

   (ii)  The term does not include a campground membership.

   Time-share salesperson--An individual who, either as an employee or an independent contractor, sells or offers to sell time shares.

   Transaction licensee--A licensee who, without entering into an agency relationship with the consumer, provides communication or document preparation services or performs other acts listed in the definition of ''broker'' or ''salesperson.''

Subchapter C.  LICENSURE

LICENSURE REQUIREMENTS

§ 35.222.  Licensure as a broker.

   (a)  An individual who wants to obtain a standard broker's license shall comply with § 35.221 (relating to general requirements) and:

   (1)  Have scored a passing grade on each part of the broker's licensing examination within 3 years prior to submission of a properly completed license application except that an applicant who has been actively licensed as a broker by another state within the last 5 years shall take and pass only the Pennsylvania portion of the examination. See § 35.271 (relating to examination for broker's license).

   (2)  Comply with §§ 35.241 and 35.242 (relating to general office requirement; and office of broker or cemetery broker).

   (3)  Submit a completed application to the Commission with recommendations attesting to the applicant's good reputation for honesty, trustworthiness, integrity and competence from:

   (i)  One real estate broker holding either a current standard or reciprocal license issued by the Commission.

   (ii)  Two persons unrelated to the applicant who own property in the county where the applicant resides or has a place of business.

   (iii)  Two persons unrelated to the applicant who own property in the county where the applicant previously resided, if the applicant changed his county of residence within 1 year prior to the submission of the application.

   (b)  An individual who wants to obtain a reciprocal broker's license shall comply with § 35.221 and:

   (1)  Possess a current broker's license issued by another state that agrees to issue a license to a standard Pennsylvania licensee without further requirement, or has qualifications for licensure substantially comparable to those required by the Commission. When a reciprocal applicant applies from a state which would require a Pennsylvania licensee to complete additional education, experience or examination requirements, the reciprocal applicant shall complete equivalent requirements for licensure in this Commonwealth.

   (2)  Comply with § 35.241 and § 35.242.

   (3)  Submit a completed license application to the Commission with a verified statement that:

   (i)  To the applicant's knowledge, the applicant is not the subject of discipline or a current investigation or proceeding alleging misconduct under a licensing law or criminal law of either the Commonwealth or another state.

   (ii)  The applicant has reviewed, is familiar with and agrees to be bound by the act and this chapter.

   (iii)  The applicant agrees to permit the disclosure of the record in any disciplinary proceeding involving alleged misconduct by the applicant from any state in which the applicant is or has been licensed.

   (4)  If the applicant will be acting as an associate broker, submit a sworn statement from the broker with whom the applicant desires to be affiliated:

   (i)  Attesting to the applicant's good reputation for honesty, trustworthiness, integrity and competence.

   (ii)  Certifying that the applicant will be actively supervised and trained by the broker.

   (5)  Submit a certification from the real estate licensing authority of the other state:

   (i)  Confirming that the applicant's license is active and in good standing.

   (ii)  Describing any past disciplinary action taken by the licensing authority against the applicant.

   (iii)  Listing the applicant's office address and the name of the applicant's employing broker.

   (c)  A partnership, association or corporation that wants to obtain a standard or reciprocal broker's license shall:

   (1)  Ensure that each member of the partnership or association, or each officer of the corporation, who intends to engage in the real estate business holds either a current standard or reciprocal license issued by the Commission as a salesperson or broker.

   (2)  Designate an individual who is licensed by the Commission as a broker to serve as broker of record.

   (3)  Comply with §§ 35.241 and 35.242.

   (4)  Submit a completed license application to the Commission.

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