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H.B. 275
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7 LONG TITLE
8 General Description:
9 This bill modifies provisions related to the Division of Real Estates' regulation of the
10 appraisal, mortgage, and real estate industries.
11 Highlighted Provisions:
12 This bill:
13 . recodifies Title 61, Chapter 2, Division of Real Estate, and Chapter 2a, Real Estate
14 Recovery Fund Act, and as part of the recodification creates Chapter 2f, Real Estate
15 Licensing and Practices Act;
16 . addresses definitions and consistency of terminology;
17 . addresses powers under appraisal, mortgage, and real estate statutes, including:
18 . providing for the suspension of a license, registration, or certification for
19 payment of a fee with a dishonored instrument;
20 . addressing investigatory powers and costs;
21 . addressing the division providing lists of licensee, registrants, and certificate
22 holders;
23 . addressing the effect of a failure to accurately disclose a criminal history; and
24 . requiring deadlines for compliance with disciplinary actions;
25 . increases certain fines;
26 . clarifies procedures related to the renewal of a registration as a trainee under
27 appraisal statutes;
28 . modifies the powers of the Real Estate Appraiser Licensing and Certification Board
29 with regard to examinations and education;
30 . modifies requirements for licensing and certification under appraisal statutes;
31 . corrects references to trainees under appraisal statutes;
32 . addresses ability of persons licensed, certified, or registered under appraisal statutes
33 to operate as a professional corporation or limited liability company;
34 . requires that an individual licensed under mortgage statutes be sponsored by a
35 licensed entity;
36 . addresses education and examination requirements under mortgage statutes that are
37 specific to obtaining a license in Utah;
38 . addresses the process and requirements to obtain a license, renew a license, or notify
39 the division of changes in certain information;
40 . provides for certain past revocations of a license under mortgage statutes to be
41 converted to a suspension of the license;
42 . modifies criminal penalties;
43 . clarifies procedures for making claims against the mortgage recovery funds and real
44 estate; and
45 . makes technical and conforming amendments.
46 Monies Appropriated in this Bill:
47 None
48 Other Special Clauses:
49 None
50 Utah Code Sections Affected:
51 AMENDS:
52 10-3-1110, as last amended by Laws of Utah 2008, Chapter 169
53 13-25a-111, as last amended by Laws of Utah 2005, Chapter 18
54 16-11-2, as last amended by Laws of Utah 2009, Chapter 220
55 17-50-106, as enacted by Laws of Utah 2008, Chapter 169
56 31A-2-402, as last amended by Laws of Utah 2009, Chapter 372
57 34-44-102, as enacted by Laws of Utah 2007, Chapter 65
58 34A-2-104, as last amended by Laws of Utah 2009, Chapter 185
59 41-1a-422, as last amended by Laws of Utah 2009, Chapters 183, 348, and 380
60 48-2c-1502, as last amended by Laws of Utah 2009, Chapter 141
61 57-11-2, as last amended by Laws of Utah 2009, Chapter 352
62 57-11-14, as last amended by Laws of Utah 2009, Chapter 352
63 57-19-14, as last amended by Laws of Utah 1990, Chapter 199
64 57-21-2, as last amended by Laws of Utah 2008, Chapter 382
65 57-23-5, as enacted by Laws of Utah 1991, Chapter 262
66 57-27-102, as enacted by Laws of Utah 2009, Chapter 194
67 58-56-16, as last amended by Laws of Utah 2009, Chapter 183
68 61-1-13, as last amended by Laws of Utah 2009, Chapters 351 and 355
69 61-2b-2, as last amended by Laws of Utah 2008, Chapters 382 and 387
70 61-2b-3, as last amended by Laws of Utah 2005, Chapter 199
71 61-2b-6, as last amended by Laws of Utah 2009, Chapters 183 and 352
72 61-2b-8, as last amended by Laws of Utah 2009, Chapter 352
73 61-2b-10, as last amended by Laws of Utah 2005, Chapter 199
74 61-2b-14, as last amended by Laws of Utah 2005, Chapter 199
75 61-2b-15, as last amended by Laws of Utah 2005, Chapter 199
76 61-2b-17, as last amended by Laws of Utah 2007, Chapter 325
77 61-2b-18, as last amended by Laws of Utah 2009, Chapter 183
78 61-2b-19, as last amended by Laws of Utah 2005, Chapter 199
79 61-2b-20, as last amended by Laws of Utah 2009, Chapter 352
80 61-2b-25, as last amended by Laws of Utah 2008, Chapter 387
81 61-2b-28, as last amended by Laws of Utah 2008, Chapters 382 and 387
82 61-2b-29, as last amended by Laws of Utah 2009, Chapter 352
83 61-2b-30.5, as last amended by Laws of Utah 2008, Chapter 387
84 61-2b-32, as last amended by Laws of Utah 1999, Chapter 117
85 61-2b-33, as last amended by Laws of Utah 2009, Chapter 352
86 61-2b-36, as last amended by Laws of Utah 2005, Chapter 199
87 61-2b-39, as last amended by Laws of Utah 2005, Chapter 199
88 61-2b-40, as last amended by Laws of Utah 2005, Chapter 199
89 61-2c-102, as last amended by Laws of Utah 2009, Chapter 372
90 61-2c-103, as last amended by Laws of Utah 2009, Chapters 183, 352, and 372
91 61-2c-104, as last amended by Laws of Utah 2009, Chapters 352 and 372
92 61-2c-105, as last amended by Laws of Utah 2009, Chapter 372
93 61-2c-106, as last amended by Laws of Utah 2009, Chapter 372
94 61-2c-201, as last amended by Laws of Utah 2009, Chapters 183 and 372
95 61-2c-202, as last amended by Laws of Utah 2009, Chapters 183 and 372
96 61-2c-203, as last amended by Laws of Utah 2009, Chapter 372
97 61-2c-204.1, as enacted by Laws of Utah 2009, Chapter 372
98 61-2c-205, as last amended by Laws of Utah 2009, Chapters 183, 352, and 372
99 61-2c-205.1, as enacted by Laws of Utah 2009, Chapter 372
100 61-2c-206, as last amended by Laws of Utah 2009, Chapters 183 and 372
101 61-2c-301, as last amended by Laws of Utah 2009, Chapters 72 and 372
102 61-2c-302, as last amended by Laws of Utah 2009, Chapter 372
103 61-2c-401, as last amended by Laws of Utah 2007, Chapter 325
104 61-2c-402, as last amended by Laws of Utah 2009, Chapters 352 and 372
105 61-2c-404, as last amended by Laws of Utah 2007, Chapter 325
106 61-2c-501, as last amended by Laws of Utah 2009, Chapter 352
107 61-2c-502, as last amended by Laws of Utah 2009, Chapters 352 and 372
108 61-2c-503, as last amended by Laws of Utah 2009, Chapter 352
109 61-2c-505, as enacted by Laws of Utah 2004, Chapter 297
110 61-2c-507, as last amended by Laws of Utah 2009, Chapter 372
111 63G-2-302, as last amended by Laws of Utah 2009, Chapters 126, 349, and 379
112 63J-1-602, as enacted by Laws of Utah 2009, Chapter 368
113 70D-3-102, as enacted by Laws of Utah 2009, Chapter 72
114 72-5-116, as last amended by Laws of Utah 2008, Chapter 169
115 ENACTS:
116 61-2-101, Utah Code Annotated 1953
117 61-2-102, Utah Code Annotated 1953
118 61-2-202, Utah Code Annotated 1953
119 61-2c-209, Utah Code Annotated 1953
120 61-2c-501.5, Utah Code Annotated 1953
121 61-2f-101, Utah Code Annotated 1953
122 61-2f-105, Utah Code Annotated 1953
123 61-2f-206, Utah Code Annotated 1953
124 61-2f-305, Utah Code Annotated 1953
125 RENUMBERS AND AMENDS:
126 61-2-201, (Renumbered from 61-2-5, as last amended by Laws of Utah 2009, Chapters
127 269 and 372)
128 61-2-203, (Renumbered from 61-2-5.1, as last amended by Laws of Utah 2008, Chapter
129 382)
130 61-2-204, (Renumbered from 61-2-28, as last amended by Laws of Utah 2008, Chapters
131 216 and 382)
132 61-2f-102, (Renumbered from 61-2-2, as last amended by Laws of Utah 2005, Chapter
133 257)
134 61-2f-103, (Renumbered from 61-2-5.5, as last amended by Laws of Utah 2008,
135 Chapter 387)
136 61-2f-104, (Renumbered from 61-2-14, as last amended by Laws of Utah 1983, Chapter
137 257)
138 61-2f-106, (Renumbered from 61-2-22, as last amended by Laws of Utah 1985, Chapter
139 162)
140 61-2f-201, (Renumbered from 61-2-1, as last amended by Laws of Utah 1996, Chapter
141 102)
142 61-2f-202, (Renumbered from 61-2-3, as last amended by Laws of Utah 2009, Chapter
143 356)
144 61-2f-203, (Renumbered from 61-2-6, as last amended by Laws of Utah 2009, Chapter
145 352)
146 61-2f-204, (Renumbered from 61-2-9, as last amended by Laws of Utah 2009, Chapters
147 183 and 352)
148 61-2f-205, (Renumbered from 61-2-7, as last amended by Laws of Utah 1991, Chapter
149 165)
150 61-2f-207, (Renumbered from 61-2-7.1, as last amended by Laws of Utah 2009,
151 Chapter 183)
152 61-2f-301, (Renumbered from 61-2-7.2, as last amended by Laws of Utah 2009,
153 Chapter 352)
154 61-2f-302, (Renumbered from 61-2-10, as last amended by Laws of Utah 2009, Chapter
155 352)
156 61-2f-303, (Renumbered from 61-2-25, as enacted by Laws of Utah 2003, Chapter 264)
157 61-2f-304, (Renumbered from 61-2-8, as last amended by Laws of Utah 2000, Chapter
158 86)
159 61-2f-306, (Renumbered from 61-2-20, as last amended by Laws of Utah 2008, Chapter
160 387)
161 61-2f-307, (Renumbered from 61-2-26, as last amended by Laws of Utah 2008, Chapter
162 382)
163 61-2f-308, (Renumbered from 61-2-27, as enacted by Laws of Utah 2005, Chapter 252)
164 61-2f-401, (Renumbered from 61-2-11, as last amended by Laws of Utah 2009, Chapter
165 352)
166 61-2f-402, (Renumbered from 61-2-11.5, as last amended by Laws of Utah 2007,
167 Chapter 325)
168 61-2f-403, (Renumbered from 61-2-24, as enacted by Laws of Utah 1996, Chapter 102)
169 61-2f-404, (Renumbered from 61-2-12, as last amended by Laws of Utah 2009, Chapter
170 352)
171 61-2f-405, (Renumbered from 61-2-17, as last amended by Laws of Utah 2009, Chapter
172 352)
173 61-2f-406, (Renumbered from 61-2-13, as last amended by Laws of Utah 2008, Chapter
174 387)
175 61-2f-407, (Renumbered from 61-2-21, as last amended by Laws of Utah 2008,
176 Chapters 370, 382, and 387)
177 61-2f-408, (Renumbered from 61-2-13.5, as enacted by Laws of Utah 1997, Chapter
178 232)
179 61-2f-409, (Renumbered from 61-2-18, as last amended by Laws of Utah 1985, Chapter
180 162)
181 61-2f-501, (Renumbered from 61-2a-1, as enacted by Laws of Utah 1975, Chapter 172)
182 61-2f-502, (Renumbered from 61-2a-2, as last amended by Laws of Utah 2009, Chapter
183 352)
184 61-2f-503, (Renumbered from 61-2a-3, as last amended by Laws of Utah 2009, Chapter
185 352)
186 61-2f-504, (Renumbered from 61-2a-12, as last amended by Laws of Utah 2009,
187 Chapter 352)
188 61-2f-505, (Renumbered from 61-2a-4, as last amended by Laws of Utah 2009, Chapter
189 352)
190 61-2f-506, (Renumbered from 61-2a-5, as last amended by Laws of Utah 2009, Chapter
191 352)
192 61-2f-507, (Renumbered from 61-2a-6, as last amended by Laws of Utah 2009, Chapter
193 352)
194 61-2f-508, (Renumbered from 61-2a-7, as last amended by Laws of Utah 2009, Chapter
195 352)
196 61-2f-509, (Renumbered from 61-2a-8, as last amended by Laws of Utah 1983, Chapter
197 256)
198 61-2f-510, (Renumbered from 61-2a-9, as last amended by Laws of Utah 2009, Chapter
199 352)
200 61-2f-511, (Renumbered from 61-2a-11, as last amended by Laws of Utah 2009,
201 Chapter 352)
202 61-2f-512, (Renumbered from 61-2a-10, as last amended by Laws of Utah 1983,
203 Chapter 256)
204 REPEALS:
205 61-2-4, as last amended by Laws of Utah 1996, Chapter 102
206 61-2b-11, as last amended by Laws of Utah 1999, Chapter 117
207 61-2b-16, as last amended by Laws of Utah 1999, Chapter 117
208 61-2c-207, as last amended by Laws of Utah 2009, Chapter 372
209 61-2c-208, as last amended by Laws of Utah 2009, Chapters 183 and 372
210
211 Be it enacted by the Legislature of the state of Utah:
212 Section 1. Section 10-3-1110 is amended to read:
213 10-3-1110. Exemption from state licensure by Division of Real Estate.
214 In accordance with Section [
215 exempt from licensure under Title 61, Chapter [
216 Licensing and Practices Act:
217 (1) when engaging in an act on behalf of the municipality in accordance with:
218 (a) this title; or
219 (b) Title 11, Cities, Counties, and Local Taxing Units; and
220 (2) if the act described in Subsection (1) is related to one or more of the following:
221 (a) acquiring real [
222 (b) disposing of real [
223 (c) providing services that constitute property management, as defined in Section
224 [
225 (d) leasing real [
226 Section 2. Section 13-25a-111 is amended to read:
227 13-25a-111. Exemptions.
228 Notwithstanding any other provision of this chapter, Sections 13-25a-103 and
229 13-25a-108 do not apply to:
230 (1) a telephone call made for a charitable purpose as defined in Section 13-22-2 ;
231 (2) a charitable solicitation as defined in Section 13-22-2 ; or
232 (3) a person who holds a license or registration:
233 (a) under Title 31A, Insurance Code;
234 (b) issued by the Division of Real Estate established in Section [
235 (c) issued by the National Association of Securities Dealers.
236 Section 3. Section 16-11-2 is amended to read:
237 16-11-2. Definitions.
238 As used in this chapter:
239 (1) "Filed" means the division has received and approved, as to form, a document
240 submitted under the provisions of this chapter, and has marked on the face of the document a
241 stamp or seal indicating the time of day and date of approval, the name of the division, the
242 division director's signature and division seal, or facsimiles of the signature or seal.
243 (2) "Professional corporation" means a corporation organized under this chapter.
244 (3) "Professional service" means the personal service rendered by:
245 (a) a physician, surgeon, or doctor of medicine holding a license under Title 58,
246 Chapter 67, Utah Medical Practice Act, and any subsequent laws regulating the practice of
247 medicine;
248 (b) a doctor of dentistry holding a license under Title 58, Chapter 69, Dentist and
249 Dental Hygienist Practice Act, and any subsequent laws regulating the practice of dentistry;
250 (c) an osteopathic physician or surgeon holding a license under Title 58, Chapter 68,
251 Utah Osteopathic Medical Practice Act, and any subsequent laws regulating the practice of
252 osteopathy;
253 (d) a chiropractor holding a license under Title 58, Chapter 73, Chiropractic Physician
254 Practice Act, and any subsequent laws regulating the practice of chiropractic;
255 (e) a podiatric physician holding a license under Title 58, Chapter 5a, Podiatric
256 Physician Licensing Act, and any subsequent laws regulating the practice of podiatry;
257 (f) an optometrist holding a license under Title 58, Chapter 16a, Utah Optometry
258 Practice Act, and any subsequent laws regulating the practice of optometry;
259 (g) a veterinarian holding a license under Title 58, Chapter 28, Veterinary Practice Act,
260 and any subsequent laws regulating the practice of veterinary medicine;
261 (h) an architect holding a license under Title 58, Chapter 3a, Architects Licensing Act,
262 and any subsequent laws regulating the practice of architecture;
263 (i) a public accountant holding a license under Title 58, Chapter 26a, Certified Public
264 Accountant Licensing Act, and any subsequent laws regulating the practice of public
265 accounting;
266 (j) a naturopath holding a license under Title 58, Chapter 71, Naturopathic Physician
267 Practice Act, and any subsequent laws regulating the practice of naturopathy;
268 (k) a pharmacist holding a license under Title 58, Chapter 17b, Pharmacy Practice Act,
269 and any subsequent laws regulating the practice of pharmacy;
270 (l) an attorney granted the authority to practice law by:
271 (i) the Utah Supreme Court; or
272 (ii) the Supreme Court, other court, agency, instrumentality, or regulating board that
273 licenses or regulates the authority to practice law in any state or territory of the United States
274 other than Utah;
275 (m) a professional engineer registered under Title 58, Chapter 22, Professional
276 Engineers and Professional Land Surveyors Licensing Act;
277 (n) a [
278 holding a license under Title 61, Chapter [
279 and Practices Act, and any subsequent laws regulating the selling, exchanging, purchasing,
280 renting, or leasing of real estate;
281 (o) a psychologist holding a license under Title 58, Chapter 61, Psychologist Licensing
282 Act, and any subsequent laws regulating the practice of psychology;
283 (p) a clinical or certified social worker holding a license under Title 58, Chapter 60,
284 Part 2, Social Worker Licensing Act, and any subsequent laws regulating the practice of social
285 work;
286 (q) a physical therapist holding a license under Title 58, Chapter 24b, Physical Therapy
287 Practice Act, and any subsequent laws regulating the practice of physical therapy;
288 (r) a nurse licensed under Title 58, Chapter 31b, Nurse Practice Act, or Title 58,
289 Chapter 44a, Nurse Midwife Practice Act; [
290 (s) a landscape architect licensed under Title 58, Chapter 53, Landscape Architects
291 Licensing Act, and any subsequent laws regulating landscape architects[
292 (t) an individual licensed, certified, or registered under Title 61, Chapter 2b, Real
293 Estate Appraiser Licensing and Certification Act, and any subsequent laws regulating the
294 practice of appraising real estate.
295 (4) "Regulating board" means the board that is charged with the licensing and
296 regulation of the practice of the profession which the professional corporation is organized to
297 render. The definitions of Title 16, Chapter 10a, Utah Revised Business Corporation Act,
298 apply to this chapter unless the context clearly indicates that a different meaning is intended.
299 Section 4. Section 17-50-106 is amended to read:
300 17-50-106. Exemption from state licensure by Division of Real Estate.
301 In accordance with Section [
302 licensure under Title 61, Chapter [
303 Practices Act:
304 (1) when engaging in an act on behalf of the county in accordance with:
305 (a) this title; or
306 (b) Title 11, Cities, Counties, and Local Taxing Units; and
307 (2) if the act described in Subsection (1) is related to one or more of the following:
308 (a) acquiring real [
309 (b) disposing of real [
310 (c) providing services that constitute property management, as defined in Section
311 [
312 (d) leasing real [
313 Section 5. Section 31A-2-402 is amended to read:
314 31A-2-402. Definitions.
315 As used in this part:
316 (1) "Commission" means the Title and Escrow Commission created in Section
317 31A-2-403 .
318 (2) "Concurrence" means the entities given a concurring role must jointly agree for the
319 action to be taken.
320 (3) "Dual licensed title licensee" means a title licensee who holds:
321 (a) a producer license as a title licensee; and
322 (b) a license or certificate under:
323 (i) Title 61, Chapter [
324 Practices Act;
325 (ii) Title 61, Chapter 2b, Real Estate Appraiser Licensing and Certification Act; or
326 (iii) Title 61, Chapter 2c, Utah Residential Mortgage Practices and Licensing Act.
327 (4) "Real Estate Commission" means the Real Estate Commission created in Section
328 [
329 (5) "Title licensee" means a person licensed under this title as:
330 (a) an agency with a title insurance line of authority;
331 (b) a producer with:
332 (i) a general title insurance line of authority; or
333 (ii) a specific category of authority for title insurance; or
334 (c) a title insurance adjuster.
335 Section 6. Section 34-44-102 is amended to read:
336 34-44-102. Definitions.
337 As used in this chapter:
338 (1) "Business relationship" means an agreement that governs the relationship of
339 principal and sales representative.
340 (2) "Commission" means:
341 (a) compensation:
342 (i) that accrues to a sales representative;
343 (ii) for payment by a principal; and
344 (iii) at a rate expressed as a percentage of the dollar amount of sales, orders, or profits;
345 or
346 (b) any other method of compensation agreed to between a sales representative and a
347 principal including:
348 (i) fees for services; and
349 (ii) a retainer.
350 (3) "Principal" means a person who:
351 (a) engages in any of the following activities with regard to a product or service:
352 (i) manufactures;
353 (ii) produces;
354 (iii) imports;
355 (iv) sells; or
356 (v) distributes;
357 (b) establishes a business relationship with a sales representative to solicit orders for a
358 product or a service described in Subsection (3)(a); and
359 (c) agrees to compensate a sales representative, in whole or in part, by commission.
360 (4) (a) Except as provided in Subsection (4)(b), "sales representative" means a person
361 who enters into a business relationship with a principal:
362 (i) to solicit orders for a product or a service described in Subsection (3)(a); and
363 (ii) under which the person is compensated, in whole or in part, by commission.
364 (b) "Sales representative" does not include:
365 (i) an employee of a principal;
366 (ii) a person licensed under Title 31A, Insurance Code;
367 (iii) a person licensed under Title 41, Chapter 3, Part 2, Licensing;
368 (iv) a person licensed under Title 61, Chapter [
369 Estate Licensing and Practices Act;
370 (v) a person who provides a product or service under a business relationship with a
371 principal that is incident to the purchase or sale of real property; or
372 (vi) a person who places an order or purchases a product or service for that person's
373 own account for resale.
374 (5) "Terminates" or "termination" means the end of a business relationship between a
375 sales representative and a principal, whether by:
376 (a) agreement;
377 (b) expiration of a time period; or
378 (c) exercise of a right of termination by either the principal or the sales representative.
379 Section 7. Section 34A-2-104 is amended to read:
380 34A-2-104. "Employee," "worker," and "operative" defined -- Specific
381 circumstances -- Exemptions.
382 (1) As used in this chapter and Chapter 3, Utah Occupational Disease Act, "employee,"
383 "worker," and "operative" mean:
384 (a) (i) an elective or appointive officer and any other person:
385 (A) in the service of:
386 (I) the state;
387 (II) a county, city, or town within the state; or
388 (III) a school district within the state;
389 (B) serving the state, or any county, city, town, or school district under:
390 (I) an election;
391 (II) appointment; or
392 (III) any contract of hire, express or implied, written or oral; and
393 (ii) including:
394 (A) an officer or employee of the state institutions of learning; and
395 (B) a member of the National Guard while on state active duty; and
396 (b) a person in the service of any employer, as defined in Section 34A-2-103 , who
397 employs one or more workers or operatives regularly in the same business, or in or about the
398 same establishment:
399 (i) under any contract of hire:
400 (A) express or implied; and
401 (B) oral or written;
402 (ii) including aliens and minors, whether legally or illegally working for hire; and
403 (iii) not including any person whose employment:
404 (A) is casual; and
405 (B) not in the usual course of the trade, business, or occupation of the employee's
406 employer.
407 (2) (a) Unless a lessee provides coverage as an employer under this chapter and
408 Chapter 3, any lessee in mines or of mining property and each employee and sublessee of the
409 lessee shall be:
410 (i) covered for compensation by the lessor under this chapter and Chapter 3;
411 (ii) subject to this chapter and Chapter 3; and
412 (iii) entitled to the benefits of this chapter and Chapter 3, to the same extent as if the
413 lessee, employee, or sublessee were employees of the lessor drawing the wages paid employees
414 for substantially similar work.
415 (b) The lessor may deduct from the proceeds of ores mined by the lessees an amount
416 equal to the insurance premium for that type of work.
417 (3) (a) A partnership or sole proprietorship may elect to include any partner of the
418 partnership or owner of the sole proprietorship as an employee of the partnership or sole
419 proprietorship under this chapter and Chapter 3.
420 (b) If a partnership or sole proprietorship makes an election under Subsection (3)(a),
421 the partnership or sole proprietorship shall serve written notice upon its insurance carrier
422 naming the persons to be covered.
423 (c) A partner of a partnership or owner of a sole proprietorship may not be considered
424 an employee of the partner's partnership or the owner's sole proprietorship under this chapter or
425 Chapter 3 until the notice described in Subsection (3)(b) is given.
426 (d) For premium rate making, the insurance carrier shall assume the salary or wage of
427 the partner or sole proprietor electing coverage under Subsection (3)(a) to be 100% of the
428 state's average weekly wage.
429 (4) (a) A corporation may elect not to include any director or officer of the corporation
430 as an employee under this chapter and Chapter 3.
431 (b) If a corporation makes an election under Subsection (4)(a), the corporation shall
432 serve written notice upon its insurance carrier naming the persons to be excluded from
433 coverage.
434 (c) A director or officer of a corporation is considered an employee under this chapter
435 and Chapter 3 until the notice described in Subsection (4)(b) is given.
436 (5) As used in this chapter and Chapter 3, "employee," "worker," and "operative" do
437 not include:
438 (a) a [
439 [
440 if:
441 (i) substantially all of the [
442 income for services is from real estate commissions; and
443 (ii) [
444 associate broker's services are performed under a written contract that provides that:
445 (A) the real estate agent is an independent contractor; and
446 (B) the [
447 an employee for federal income tax purposes;
448 (b) an offender performing labor under Section 64-13-16 or 64-13-19 , except as
449 required by federal statute or regulation;
450 (c) an individual who for an insurance producer, as defined in Section 31A-1-301 ,
451 solicits, negotiates, places or procures insurance if:
452 (i) substantially all of the individual's income from those services is from insurance
453 commissions; and
454 (ii) the services of the individual are performed under a written contract that states that
455 the individual:
456 (A) is an independent contractor;
457 (B) is not to be treated as an employee for federal income tax purposes; and
458 (C) can derive income from more than one insurance company;
459 (d) notwithstanding Subsection 34A-2-103 (4), an individual who provides domestic
460 work for a person if:
461 (i) the person for whom the domestic work is being provided receives or is eligible to
462 receive the domestic work under a state or federal program designed to pay the costs of
463 domestic work to prevent the person from being placed in:
464 (A) an institution; or
465 (B) a more restrictive placement than where that person resides at the time the person
466 receives the domestic work;
467 (ii) the individual is paid by a person designated by the Secretary of the Treasury in
468 accordance with Section 3504, Internal Revenue Code, as a fiduciary, agent, or other person
469 that has the control, receipt, custody, or disposal of, or pays the wages of the individual; and
470 (iii) the domestic work is performed under a written contract that notifies the
471 individual that the individual is not an employee under this chapter or Chapter 3; or
472 (e) subject to Subsections (6) and (7), an individual who:
473 (i) (A) owns a motor vehicle; or
474 (B) leases a motor vehicle to a motor carrier;
475 (ii) personally operates the motor vehicle described in Subsection (5)(e)(i);
476 (iii) operates the motor vehicle described in Subsection (5)(e)(i) under a written
477 agreement with the motor carrier that states that the individual operates the motor vehicle as an
478 independent contractor; and
479 (iv) provides to the motor carrier at the time the written agreement described in
480 Subsection (5)(e)(iii) is executed or as soon after the execution as provided by an insurer:
481 (A) a copy of a workers' compensation coverage waiver issued pursuant to Section
482 31A-22-1011 by an insurer to the individual; and
483 (B) proof that the individual is covered by occupational accident related insurance.
484 (6) An individual described in Subsection (5)(d) or (e) may become an employee under
485 this chapter and Chapter 3 if the employer of the individual complies with:
486 (a) this chapter and Chapter 3; and
487 (b) commission rules.
488 (7) For purposes of Subsection (5)(e):
489 (a) "Motor carrier" means a person engaged in the business of transporting freight,
490 merchandise, or other property by a commercial vehicle on a highway within this state.
491 (b) "Motor vehicle" means a self-propelled vehicle intended primarily for use and
492 operation on the highways, including a trailer or semitrailer designed for use with another
493 motorized vehicle.
494 (c) "Occupational accident related insurance" means insurance that provides the
495 following coverage for an injury sustained in the course of working under a written agreement
496 described in Subsection (5)(e)(iii):
497 (i) disability benefits;
498 (ii) death benefits;
499 (iii) medical expense benefits, which include:
500 (A) hospital coverage;
501 (B) surgical coverage;
502 (C) prescription drug coverage; and
503 (D) dental coverage.
504 Section 8. Section 41-1a-422 is amended to read:
505 41-1a-422. Support special group license plates -- Contributor -- Voluntary
506 contribution collection procedures.
507 (1) As used in this section:
508 (a) (i) Except as provided in Subsection (1)(a)(ii), "contributor" means a person who
509 has donated or in whose name at least $25 has been donated to:
510 (A) a scholastic scholarship fund of a single named institution;
511 (B) the Department of Veterans' Affairs for veterans' programs;
512 (C) the Division of Wildlife Resources for the Wildlife Resources Account created in
513 Section 23-14-13 , for conservation of wildlife and the enhancement, preservation, protection,
514 access, and management of wildlife habitat;
515 (D) the Department of Agriculture and Food for the benefit of conservation districts;
516 (E) the Division of Parks and Recreation for the benefit of snowmobile programs;
517 (F) the Guardian Ad Litem Services Account and the Children's Museum of Utah, with
518 the donation evenly divided between the two;
519 (G) the Boy Scouts of America for the benefit of a Utah Boy Scouts of America
520 council as specified by the contributor;
521 (H) No More Homeless Pets in Utah for distribution to organizations or individuals
522 that provide spay and neuter programs that subsidize the sterilization of domestic animals;
523 (I) the Utah Alliance of Boys and Girls Clubs, Inc. to provide and enhance youth
524 development programs;
525 (J) the Utah Association of Public School Foundations to support public education;
526 (K) the Utah Housing Opportunity Restricted Account created in Section [
527 61-2-204 to assist people who have severe housing needs;
528 (L) the Public Safety Honoring Heroes Restricted Account created in Section 53-1-118
529 to support the families of fallen Utah Highway Patrol troopers and other Department of Public
530 Safety employees;
531 (M) the Division of Parks and Recreation for distribution to organizations that provide
532 support for Zion National Park;
533 (N) the Firefighter Support Restricted Account created in Section 53-7-109 to support
534 firefighter organizations; or
535 (O) the Share the Road Bicycle Support Restricted Account created in Section
536 72-2-127 to support bicycle operation and safety awareness programs.
537 (ii) (A) For a veterans' special group license plate, "contributor" means a person who
538 has donated or in whose name at least a $25 donation at the time of application and $10 annual
539 donation thereafter has been made.
540 (B) For a Utah Housing Opportunity special group license plate, "contributor" means a
541 person who:
542 (I) has donated or in whose name at least $30 has been donated at the time of
543 application and annually after the time of application; and
544 (II) is a member of a trade organization for real estate licensees that has more than
545 15,000 Utah members.
546 (C) For an Honoring Heroes special group license plate, "contributor" means a person
547 who has donated or in whose name at least $35 has been donated at the time of application and
548 annually thereafter.
549 (D) For a firefighter support special group license plate, "contributor" means a person
550 who:
551 (I) has donated or in whose name at least $15 has been donated at the time of
552 application and annually after the time of application; and
553 (II) is a currently employed, volunteer, or retired firefighter.
554 (b) "Institution" means a state institution of higher education as defined under Section
555 53B-3-102 or a private institution of higher education in the state accredited by a regional or
556 national accrediting agency recognized by the United States Department of Education.
557 (2) (a) An applicant for original or renewal collegiate special group license plates under
558 Subsection (1)(a)(i) must be a contributor to the institution named in the application and
559 present the original contribution verification form under Subsection (2)(b) or make a
560 contribution to the division at the time of application under Subsection (3).
561 (b) An institution with a support special group license plate shall issue to a contributor
562 a verification form designed by the commission containing:
563 (i) the name of the contributor;
564 (ii) the institution to which a donation was made;
565 (iii) the date of the donation; and
566 (iv) an attestation that the donation was for a scholastic scholarship.
567 (c) The state auditor may audit each institution to verify that the moneys collected by
568 the institutions from contributors are used for scholastic scholarships.
569 (d) After an applicant has been issued collegiate license plates or renewal decals, the
570 commission shall charge the institution whose plate was issued, a fee determined in accordance
571 with Section 63J-1-504 for management and administrative expenses incurred in issuing and
572 renewing the collegiate license plates.
573 (e) If the contribution is made at the time of application, the contribution shall be
574 collected, treated, and deposited as provided under Subsection (3).
575 (3) (a) An applicant for original or renewal support special group license plates under
576 this section must be a contributor to the sponsoring organization associated with the license
577 plate.
578 (b) This contribution shall be:
579 (i) unless collected by the named institution under Subsection (2), collected by the
580 division;
581 (ii) considered a voluntary contribution for the funding of the activities specified under
582 this section and not a motor vehicle registration fee;
583 (iii) deposited into the appropriate account less actual administrative costs associated
584 with issuing the license plates; and
585 (iv) for a firefighter special group license plate, deposited into the appropriate account
586 less:
587 (A) the costs of reordering firefighter special group license plate decals; and
588 (B) the costs of replacing recognition special group license plates with new license
589 plates under Subsection 41-1a-1211 (13).
590 (c) The donation described in Subsection (1)(a) must be made in the 12 months prior to
591 registration or renewal of registration.
592 (d) The donation described in Subsection (1)(a) shall be a one-time donation made to
593 the division when issuing original:
594 (i) snowmobile license plates; or
595 (ii) conservation license plates.
596 (4) Veterans' license plates shall display one of the symbols representing the Army,
597 Navy, Air Force, Marines, Coast Guard, or American Legion.
598 Section 9. Section 48-2c-1502 is amended to read:
599 48-2c-1502. Definitions.
600 As used in this part:
601 (1) "Professional services company" means a limited liability company organized
602 under this part to render professional services.
603 (2) "Professional services" means the personal services rendered by:
604 (a) an architect holding a license under Title 58, Chapter 3a, Architects Licensing Act,
605 and any subsequent laws regulating the practice of architecture;
606 (b) an attorney granted the authority to practice law by the:
607 (i) Supreme Court of Utah; or
608 (ii) the Supreme Court, other court, agency, instrumentality, or regulating board that
609 licenses or regulates the authority to practice law in any state or territory of the United States
610 other than Utah;
611 (c) a chiropractor holding a license under Title 58, Chapter 73, Chiropractic Physician
612 Practice Act, and any subsequent laws regulating the practice of chiropractic;
613 (d) a doctor of dentistry holding a license under Title 58, Chapter 69, [
614 and Dental [
615 practice of dentistry;
616 (e) a professional engineer registered under Title 58, Chapter 22, Professional
617 Engineers and Professional Land Surveyors Licensing Act;
618 (f) a naturopath holding a license under Title 58, Chapter 71, Naturopathic Physician
619 Practice Act, and any subsequent laws regulating the practice of naturopathy;
620 (g) a nurse licensed under Title 58, Chapter 31b, Nurse Practice Act, or Title 58,
621 Chapter 44a, Nurse Midwife Practice Act;
622 (h) an optometrist holding a license under Title 58, Chapter 16a, Utah Optometry
623 Practice Act, and any subsequent laws regulating the practice of optometry;
624 (i) an osteopathic physician or surgeon holding a license under Title 58, Chapter 68,
625 Utah Osteopathic Medical Practice Act, and any subsequent laws regulating the practice of
626 osteopathy;
627 (j) a pharmacist holding a license under Title 58, Chapter 17b, Pharmacy Practice Act,
628 and any subsequent laws regulating the practice of pharmacy;
629 (k) a physician, surgeon, or doctor of medicine holding a license under Title 58,
630 Chapter 67, Utah Medical Practice Act, and any subsequent laws regulating the practice of
631 medicine;
632 (l) a physical therapist holding a license under Title 58, Chapter 24b, Physical Therapy
633 Practice Act, and any subsequent laws regulating the practice of physical therapy;
634 (m) a podiatric physician holding a license under Title 58, Chapter 5a, Podiatric
635 Physician Licensing Act, and any subsequent laws regulating the practice of podiatry;
636 (n) a psychologist holding a license under Title 58, Chapter 61, Psychologist Licensing
637 Act, and any subsequent laws regulating the practice of psychology;
638 (o) a public accountant holding a license under Title 58, Chapter 26a, Certified Public
639 Accountant Licensing Act, and any subsequent laws regulating the practice of public
640 accounting;
641 (p) a [
642 holding a license under Title 61, Chapter [
643 and Practices Act, and any subsequent laws regulating the sale, exchange, purchase, rental, or
644 leasing of real estate;
645 (q) a clinical or certified social worker holding a license under Title 58, Chapter 60,
646 Part 2, Social Worker Licensing Act, and any subsequent laws regulating the practice of social
647 work;
648 (r) a mental health therapist holding a license under Title 58, Chapter 60, Mental
649 Health Professional Practice Act, and any subsequent laws regulating the practice of mental
650 health therapy; [
651 (s) a veterinarian holding a license under Title 58, Chapter 28, Veterinary Practice Act,
652 and any subsequent laws regulating the practice of veterinary medicine[
653 (t) an individual licensed, certified, or registered under Title 61, Chapter 2b, Real
654 Estate Appraiser Licensing and Certification Act, and any subsequent laws regulating the
655 practice of appraising real estate.
656 (3) "Regulating board" means the board or agency organized pursuant to state law that
657 is charged with the licensing and regulation of the practice of the profession that a company is
658 organized to render.
659 Section 10. Section 57-11-2 is amended to read:
660 57-11-2. Definitions.
661 As used in this chapter:
662 (1) (a) "Disposition" includes sale, lease, assignment, award by lottery, or any other
663 transaction concerning a subdivision, if undertaken for gain or profit.
664 (b) "Disposition" does not include the sale or lease of land held by railroads for right of
665 way if the land is within 400 feet of the center line of a railroad tract.
666 (2) "Division" means the Division of Real Estate created in Section [
667 (3) "Federal act" means the federal Interstate Land Sales Full Disclosure Act, 15
668 U.S.C. Sec. 1701, et seq., or any successor federal act.
669 (4) (a) "Industrial park" means a subdivision or subdivided lands offered as a part of a
670 common promotional plan of advertising and sale zoned for office, manufacturing,
671 warehousing, commercial, industrial, distribution, or wholesale use and utilized for one or
672 more of those purposes.
673 (b) "Industrial park" does not include land offered for sale that is designed or intended
674 to be used for recreational, residential, including multiple family dwellings, or agricultural
675 purposes.
676 (5) "Offer" includes an inducement, solicitation, or attempt to encourage a person to
677 acquire an interest in land if undertaken for gain or profit.
678 (6) "Person" includes:
679 (a) a business trust;
680 (b) an estate;
681 (c) a trust;
682 (d) a partnership;
683 (e) an unincorporated association;
684 (f) two or more of any entity having a joint or common interest; or
685 (g) any other legal or commercial entity.
686 (7) "Purchaser" means a person who acquires or attempts to acquire or succeeds to an
687 interest in land.
688 (8) "Residential building" means a structure intended for occupation as a residence
689 which, at the time of an offer or disposition of the unit on which it is situated, or on which
690 there is a legal obligation on the part of the seller to complete construction of it within two
691 years from date of disposition, has, or if completed would have, ready access to water, gas,
692 electricity, and roads.
693 (9) "Subdivider" means:
694 (a) an owner of an interest in subdivided lands who offers the subdivided lands for
695 disposition; or
696 (b) a principal agent of an owner of an interest in subdivided lands if the owner is
697 inactive.
698 (10) (a) "Subdivision" and "subdivided lands" means land that is divided or is proposed
699 to be divided for the purpose of disposition into 10 or more units including land, whether
700 contiguous or not, if 10 or more units are offered as a part of a common promotional plan of
701 advertising and sale.
702 (b) If a subdivision is offered by a developer or group of developers, and the land is
703 contiguous or is known, designated, or advertised as a common tract or by a common name,
704 that land is presumed, without regard to the number of units covered by each individual
705 offering, to be part of a common promotional plan.
706 (11) "Unit" includes a lot, parcel, or other interest in land separately offered for
707 disposition.
708 Section 11. Section 57-11-14 is amended to read:
709 57-11-14. Revocation, suspension, or denial of registration -- Grounds --
710 Suspension or revocation of real estate license.
711 (1) (a) If the division makes a written finding of fact that a subdivider engages in one
712 or more acts described in Subsection (1)(b), the division may:
713 (i) deny an application for registration;
714 (ii) revoke, suspend, or deny reissuance of a registration; or
715 (iii) impose a civil penalty not to exceed the greater of:
716 (A) $2,500 for each violation; or
717 (B) the amount of any gain or economic benefit derived from each violation.
718 (b) Subsection (1)(a) applies if the division makes a written finding of fact that a
719 subdivider:
720 (i) fails to comply with the terms of a cease and desist order;
721 (ii) is convicted in a court prior or subsequent to the filing of the application for
722 registration of a crime involving:
723 (A) fraud;
724 (B) deception;
725 (C) false pretenses;
726 (D) misrepresentation;
727 (E) false advertising; or
728 (F) dishonest dealing in real estate transactions;
729 (iii) is subject to an injunction or administrative order restraining a false or misleading
730 promotional plan involving land dispositions;
731 (iv) disposes of, conceals, or diverts funds or assets of any person so as to defeat the
732 rights of subdivision purchasers;
733 (v) fails to perform faithfully a stipulation or agreement made with the division as an
734 inducement to:
735 (A) grant a registration;
736 (B) reinstate a registration;
737 (C) revoke a cease and desist order; or
738 (D) approve any promotional plan or public offering statement;
739 (vi) makes an intentional misrepresentation, or conceals a material fact, in an
740 application for registration;
741 (vii) violates this chapter or the rules adopted under this chapter;
742 (viii) directly or through an agent or employee knowingly engages in false, deceptive,
743 or misleading advertising, promotional, or sales methods to offer or dispose of an interest in
744 subdivided lands;
745 (ix) engages in the offering of subdivided lands that has constituted or that may
746 constitute a fraud upon purchasers or prospective purchasers of the subdivided lands; or
747 (x) engages in a dishonest practice in any industry involving sales to consumers.
748 (c) The division shall accompany with a finding of fact required by this Subsection (1)
749 a concise and explicit statement of the underlying facts supporting the finding.
750 (2) As an alternative to revoking the registration of a subdivider, the director may issue
751 a cease and desist order if after notice and a hearing the director finds that the subdivider is
752 guilty of a violation for which revocation may be ordered.
753 (3) (a) The division shall suspend or revoke the license of a [
754
755 justified under the circumstances.
756 (b) A suspension or revocation under this section is in addition to any other penalty
757 that may be imposed under this chapter, subject to [
758 61-2f-404 .
759 Section 12. Section 57-19-14 is amended to read:
760 57-19-14. Registration of salesperson.
761 (1) Unless the transaction is exempt under Section 57-19-26 , it is unlawful for any
762 person to act as a salesperson marketing a project in this state without first registering under
763 this chapter as a salesperson.
764 (2) The fee for registration as a salesperson is waived by the division for persons
765 licensed by the division under Title 61, Chapter [
766 Section 13. Section 57-21-2 is amended to read:
767 57-21-2. Definitions.
768 As used in this chapter:
769 (1) "Aggrieved person" includes any person who:
770 (a) claims to have been injured by a discriminatory housing practice; or
771 (b) believes that the person will be injured by a discriminatory housing practice that is
772 about to occur.
773 (2) "Commission" means the Labor Commission.
774 (3) "Complainant" means an aggrieved person, including the director, who has
775 commenced a complaint with the division.
776 (4) "Conciliation" means the attempted resolution of issues raised by a complaint of
777 discriminatory housing practices by the investigation of the complaint through informal
778 negotiations involving the complainant, the respondent, and the division.
779 (5) "Conciliation agreement" means a written agreement setting forth the resolution of
780 the issues in conciliation.
781 (6) "Conciliation conference" means the attempted resolution of issues raised by a
782 complaint or by the investigation of a complaint through informal negotiations involving the
783 complainant, the respondent, and the division. The conciliation conference is not subject to
784 Title 63G, Chapter 4, Administrative Procedures Act.
785 (7) "Covered multifamily dwellings" means:
786 (a) buildings consisting of four or more dwelling units if the buildings have one or
787 more elevators; and
788 (b) ground floor units in other buildings consisting of four or more dwelling units.
789 (8) "Director" means the director of the division or a designee.
790 (9) (a) "Disability" means a physical or mental impairment that substantially limits one
791 or more of a person's major life activities, including a person having a record of such an
792 impairment or being regarded as having such an impairment.
793 (b) "Disability" does not include current illegal use of, or addiction to, any federally
794 controlled substance, as defined in Section 102 of the Controlled Substances Act, 21 U.S.C.
795 Sec. 802.
796 (10) "Discriminate" includes segregate or separate.
797 (11) "Discriminatory housing practice" means an act that is unlawful under this
798 chapter.
799 (12) "Division" means the Division of Antidiscrimination and Labor established under
800 the commission.
801 (13) (a) "Dwelling" means any building or structure, or a portion of a building or
802 structure, occupied as, or designed or intended for occupancy as, a residence of one or more
803 families.
804 (b) "Dwelling" also includes vacant land that is offered for sale or lease for the
805 construction or location of a dwelling as described in Subsection (13)(a).
806 (14) (a) "Familial status" means one or more individuals who have not attained the age
807 of 18 years being domiciled with:
808 (i) a parent or another person having legal custody of the individual or individuals; or
809 (ii) the designee of the parent or other person having custody, with the written
810 permission of the parent or other person.
811 (b) The protections afforded against discrimination on the basis of familial status shall
812 apply to any person who:
813 (i) is pregnant;
814 (ii) is in the process of securing legal custody of any individual who has not attained
815 the age of 18 years; or
816 (iii) is a single individual.
817 (15) "National origin" means the place of birth of an individual or of any lineal
818 ancestors.
819 (16) "Person" includes one or more individuals, corporations, limited liability
820 companies, partnerships, associations, labor organizations, legal representatives, mutual
821 companies, joint-stock companies, trusts, unincorporated organizations, trustees, trustees in
822 cases under the United States Bankruptcy Code, receivers, and fiduciaries.
823 (17) "Presiding officer" has the same meaning as provided in Section 63G-4-103 .
824 (18) "Real estate broker" or "salesperson" means a principal [
825 associate [
826 [
827 (19) "Respondent" means a person against whom a complaint of housing
828 discrimination has been initiated.
829 (20) "Sex" means gender and includes pregnancy, childbirth, and disabilities related to
830 pregnancy or childbirth.
831 (21) "Source of income" means the verifiable condition of being a recipient of federal,
832 state, or local assistance, including medical assistance, or of being a tenant receiving federal,
833 state, or local subsidies, including rental assistance or rent supplements.
834 Section 14. Section 57-23-5 is amended to read:
835 57-23-5. License required.
836 Except as provided by Section [
837 otherwise dispose of a cooperative interest in this state unless [
838 the division under Title 61, Chapter [
839 Practices Act, as a principal [
840 sales agent.
841 Section 15. Section 57-27-102 is amended to read:
842 57-27-102. Definitions.
843 As used in this chapter:
844 (1) "Contaminated" or "contamination" is as defined in Section 19-6-902 .
845 (2) "Decontaminated" or "decontamination" is as defined in Section 19-6-902 .
846 (3) (a) "Owner" means the holder of a legal or equitable title or interest in real
847 property.
848 (b) "Owner" includes a shareholder, partner, operator, or other legal entity.
849 (4) "Real estate professional" means a licensee under Title 61, Chapter [
850
851 Section 16. Section 58-56-16 is amended to read:
852 58-56-16. Registration of dealers -- Bonding requirements -- Renewal --
853 Exemptions -- Discipline.
854 (1) Each person engaged in the sale of factory built housing in the state, except as
855 provided in Subsection (4), shall register with the division as a dealer.
856 (2) Each applicant for registration under this section shall:
857 (a) submit an application in a form prescribed by the division;
858 (b) pay a fee determined by the department under Section 63J-1-504 ; and
859 (c) provide the division with a registration bond in accordance with rules established
860 by the division.
861 (3) (a) The division shall issue each registration under this section in accordance with a
862 two-year renewal cycle established by rule.
863 (b) The division may by rule extend or shorten a renewal cycle by as much as one year
864 to stagger the renewal cycles it administers.
865 (c) Each registration under this section automatically expires on the expiration date on
866 the certificate of registration unless the registrant renews it in accordance with Section
867 58-1-308 .
868 (4) Subsection (1) does not apply to:
869 (a) a person not regularly engaged in the sale of factory built housing who is selling a
870 unit the person owns for the person's own account;
871 (b) a principal broker licensed under Title 61, Chapter [
872 Real Estate Licensing and Practices Act; or
873 (c) a sales agent or associate broker licensed under Title 61, Chapter [
874
875 agent for, and under the supervision of, the [
876 agent or associate broker is affiliated.
877 (5) Grounds for refusing to issue a registration, for refusing to renew a registration, for
878 revoking, suspending, restricting, or placing on probation a registration, for issuing a public or
879 private reprimand to a registrant, and for issuing a cease and desist order shall be in accordance
880 with Section 58-1-401 .
881 Section 17. Section 61-1-13 is amended to read:
882 61-1-13. Definitions.
883 (1) As used in this chapter:
884 (a) "Affiliate" means a person that, directly or indirectly, through one or more
885 intermediaries, controls or is controlled by, or is under common control with a person
886 specified.
887 (b) (i) "Agent" means an individual other than a broker-dealer who represents a
888 broker-dealer or issuer in effecting or attempting to effect purchases or sales of securities.
889 (ii) "Agent" does not include an individual who represents:
890 (A) an issuer, who receives no commission or other remuneration, directly or
891 indirectly, for effecting or attempting to effect purchases or sales of securities in this state, and
892 who effects transactions:
893 (I) in securities exempted by Subsection 61-1-14 (1)(a), (b), (c), or (g);
894 (II) exempted by Subsection 61-1-14 (2);
895 (III) in a covered security as described in Sections 18(b)(3) and 18(b)(4)(D) of the
896 Securities Act of 1933; or
897 (IV) with existing employees, partners, officers, or directors of the issuer; or
898 (B) a broker-dealer in effecting transactions in this state limited to those transactions
899 described in Section 15(h)(2) of the Securities Exchange Act of 1934.
900 (iii) A partner, officer, or director of a broker-dealer or issuer, or a person occupying a
901 similar status or performing similar functions, is an agent only if the partner, officer, director,
902 or person otherwise comes within the definition of "agent."
903 (iv) "Agent" does not include a person described in Subsection (3).
904 (c) (i) "Broker-dealer" means a person engaged in the business of effecting transactions
905 in securities for the account of others or for the person's own account.
906 (ii) "Broker-dealer" does not include:
907 (A) an agent;
908 (B) an issuer;
909 (C) a depository institution or trust company;
910 (D) a person who has no place of business in this state if:
911 (I) the person effects transactions in this state exclusively with or through:
912 (Aa) the issuers of the securities involved in the transactions;
913 (Bb) other broker-dealers;
914 (Cc) a depository institution, whether acting for itself or as a trustee;
915 (Dd) a trust company, whether acting for itself or as a trustee;
916 (Ee) an insurance company, whether acting for itself or as a trustee;
917 (Ff) an investment company, as defined in the Investment Company Act of 1940,
918 whether acting for itself or as a trustee;
919 (Gg) a pension or profit-sharing trust, whether acting for itself or as a trustee; or
920 (Hh) another financial institution or institutional buyer, whether acting for itself or as a
921 trustee; or
922 (II) during any period of 12 consecutive months the person does not direct more than
923 15 offers to sell or buy into this state in any manner to persons other than those specified in
924 Subsection (1)(c)(ii)(D)(I), whether or not the offeror or an offeree is then present in this state;
925 (E) a general partner who organizes and effects transactions in securities of three or
926 fewer limited partnerships, of which the person is the general partner, in any period of 12
927 consecutive months;
928 (F) a person whose participation in transactions in securities is confined to those
929 transactions made by or through a broker-dealer licensed in this state;
930 (G) a person who is a [
931 state and who effects transactions in a bond or other evidence of indebtedness secured by a real
932 or chattel mortgage or deed of trust, or by an agreement for the sale of real estate or chattels, if
933 the entire mortgage, deed or trust, or agreement, together with all the bonds or other evidences
934 of indebtedness secured thereby, is offered and sold as a unit;
935 (H) a person effecting transactions in commodity contracts or commodity options;
936 (I) a person described in Subsection (3); or
937 (J) other persons as the division, by rule or order, may designate, consistent with the
938 public interest and protection of investors, as not within the intent of this Subsection (1)(c).
939 (d) "Buy" or "purchase" means a contract for purchase of, contract to buy, or
940 acquisition of a security or interest in a security for value.
941 (e) "Commission" means the Securities Commission created in Section 61-1-18.5 .
942 (f) "Commodity" means, except as otherwise specified by the division by rule:
943 (i) an agricultural, grain, or livestock product or byproduct, except real property or a
944 timber, agricultural, or livestock product grown or raised on real property and offered or sold
945 by the owner or lessee of the real property;
946 (ii) a metal or mineral, including a precious metal, except a numismatic coin whose fair
947 market value is at least 15% greater than the value of the metal it contains;
948 (iii) a gem or gemstone, whether characterized as precious, semi-precious, or
949 otherwise;
950 (iv) a fuel, whether liquid, gaseous, or otherwise;
951 (v) a foreign currency; and
952 (vi) all other goods, articles, products, or items of any kind, except a work of art
953 offered or sold by art dealers, at public auction or offered or sold through a private sale by the
954 owner of the work.
955 (g) (i) "Commodity contract" means an account, agreement, or contract for the
956 purchase or sale, primarily for speculation or investment purposes and not for use or
957 consumption by the offeree or purchaser, of one or more commodities, whether for immediate
958 or subsequent delivery or whether delivery is intended by the parties, and whether characterized
959 as a cash contract, deferred shipment or deferred delivery contract, forward contract, futures
960 contract, installment or margin contract, leverage contract, or otherwise.
961 (ii) A commodity contract offered or sold shall, in the absence of evidence to the
962 contrary, be presumed to be offered or sold for speculation or investment purposes.
963 (iii) (A) A commodity contract may not include a contract or agreement that requires,
964 and under which the purchaser receives, within 28 calendar days from the payment in good
965 funds any portion of the purchase price, physical delivery of the total amount of each
966 commodity to be purchased under the contract or agreement.
967 (B) A purchaser is not considered to have received physical delivery of the total
968 amount of each commodity to be purchased under the contract or agreement when the
969 commodity or commodities are held as collateral for a loan or are subject to a lien of any
970 person when the loan or lien arises in connection with the purchase of each commodity or
971 commodities.
972 (h) (i) "Commodity option" means an account, agreement, or contract giving a party to
973 the option the right but not the obligation to purchase or sell one or more commodities or one
974 or more commodity contracts, or both whether characterized as an option, privilege, indemnity,
975 bid, offer, put, call, advance guaranty, decline guaranty, or otherwise.
976 (ii) "Commodity option" does not include an option traded on a national securities
977 exchange registered:
978 (A) with the Securities and Exchange Commission; or
979 (B) on a board of trade designated as a contract market by the Commodity Futures
980 Trading Commission.
981 (i) "Depository institution" is as defined in Section 7-1-103 .
982 (j) "Director" means the director of the division appointed in accordance with Section
983 61-1-18 .
984 (k) "Division" means the Division of Securities established by Section 61-1-18 .
985 (l) "Executive director" means the executive director of the Department of Commerce.
986 (m) "Federal covered adviser" means a person who:
987 (i) is registered under Section 203 of the Investment Advisers Act of 1940; or
988 (ii) is excluded from the definition of "investment adviser" under Section 202(a)(11) of
989 the Investment Advisers Act of 1940.
990 (n) "Federal covered security" means a security that is a covered security under Section
991 18(b) of the Securities Act of 1933 or rules or regulations promulgated under Section 18(b) of
992 the Securities Act of 1933.
993 (o) "Fraud," "deceit," and "defraud" are not limited to their common-law meanings.
994 (p) "Guaranteed" means guaranteed as to payment of principal or interest as to debt
995 securities, or dividends as to equity securities.
996 (q) (i) "Investment adviser" means a person who:
997 (A) for compensation, engages in the business of advising others, either directly or
998 through publications or writings, as to the value of securities or as to the advisability of
999 investing in, purchasing, or selling securities; or
1000 (B) for compensation and as a part of a regular business, issues or promulgates
1001 analyses or reports concerning securities.
1002 (ii) "Investment adviser" includes a financial planner or other person who:
1003 (A) as an integral component of other financially related services, provides the
1004 investment advisory services described in Subsection (1)(q)(i) to others for compensation and
1005 as part of a business; or
1006 (B) holds the person out as providing the investment advisory services described in
1007 Subsection (1)(q)(i) to others for compensation.
1008 (iii) "Investment adviser" does not include:
1009 (A) an investment adviser representative;
1010 (B) a depository institution or trust company;
1011 (C) a lawyer, accountant, engineer, or teacher whose performance of these services is
1012 solely incidental to the practice of the profession;
1013 (D) a broker-dealer or its agent whose performance of these services is solely
1014 incidental to the conduct of its business as a broker-dealer and who receives no special
1015 compensation for the services;
1016 (E) a publisher of a bona fide newspaper, news column, news letter, news magazine, or
1017 business or financial publication or service, of general, regular, and paid circulation, whether
1018 communicated in hard copy form, or by electronic means, or otherwise, that does not consist of
1019 the rendering of advice on the basis of the specific investment situation of each client;
1020 (F) a person who is a federal covered adviser;
1021 (G) a person described in Subsection (3); or
1022 (H) such other persons not within the intent of this Subsection (1)(q) as the division
1023 may by rule or order designate.
1024 (r) (i) "Investment adviser representative" means a partner, officer, director of, or a
1025 person occupying a similar status or performing similar functions, or other individual, except
1026 clerical or ministerial personnel, who:
1027 (A) (I) is employed by or associated with an investment adviser who is licensed or
1028 required to be licensed under this chapter; or
1029 (II) has a place of business located in this state and is employed by or associated with a
1030 federal covered adviser; and
1031 (B) does any of the following:
1032 (I) makes a recommendation or otherwise renders advice regarding securities;
1033 (II) manages accounts or portfolios of clients;
1034 (III) determines which recommendation or advice regarding securities should be given;
1035 (IV) solicits, offers, or negotiates for the sale of or sells investment advisory services;
1036 or
1037 (V) supervises employees who perform any of the acts described in this Subsection
1038 (1)(r)(i)(B).
1039 (ii) "Investment adviser representative" does not include a person described in
1040 Subsection (3).
1041 (s) "Investment contract" includes:
1042 (i) an investment in a common enterprise with the expectation of profit to be derived
1043 through the essential managerial efforts of someone other than the investor; or
1044 (ii) an investment by which:
1045 (A) an offeree furnishes initial value to an offerer;
1046 (B) a portion of the initial value is subjected to the risks of the enterprise;
1047 (C) the furnishing of the initial value is induced by the offerer's promises or
1048 representations that give rise to a reasonable understanding that a valuable benefit of some kind
1049 over and above the initial value will accrue to the offeree as a result of the operation of the
1050 enterprise; and
1051 (D) the offeree does not receive the right to exercise practical or actual control over the
1052 managerial decisions of the enterprise.
1053 (t) "Isolated transaction" means not more than a total of two transactions that occur
1054 anywhere during six consecutive months.
1055 (u) (i) "Issuer" means a person who issues or proposes to issue a security or has
1056 outstanding a security that it has issued.
1057 (ii) With respect to a preorganization certificate or subscription, "issuer" means the one
1058 or more promoters of the person to be organized.
1059 (iii) "Issuer" means the one or more persons performing the acts and assuming duties
1060 of a depositor or manager under the provisions of the trust or other agreement or instrument
1061 under which the security is issued with respect to:
1062 (A) interests in trusts, including collateral trust certificates, voting trust certificates, and
1063 certificates of deposit for securities; or
1064 (B) shares in an investment company without a board of directors.
1065 (iv) With respect to an equipment trust certificate, a conditional sales contract, or
1066 similar securities serving the same purpose, "issuer" means the person by whom the equipment
1067 or property is to be used.
1068 (v) With respect to interests in partnerships, general or limited, "issuer" means the
1069 partnership itself and not the general partner or partners.
1070 (vi) With respect to certificates of interest or participation in oil, gas, or mining titles or
1071 leases or in payment out of production under the titles or leases, "issuer" means the owner of
1072 the title or lease or right of production, whether whole or fractional, who creates fractional
1073 interests therein for the purpose of sale.
1074 (v) (i) "Life settlement interest" means the entire interest or a fractional interest in any
1075 of the following that is the subject of a life settlement:
1076 (A) a policy; or
1077 (B) the death benefit under a policy.
1078 (ii) "Life settlement interest" does not include the initial purchase from the owner by a
1079 life settlement provider.
1080 (w) "Nonissuer" means not directly or indirectly for the benefit of the issuer.
1081 (x) "Person" means:
1082 (i) an individual;
1083 (ii) a corporation;
1084 (iii) a partnership;
1085 (iv) a limited liability company;
1086 (v) an association;
1087 (vi) a joint-stock company;
1088 (vii) a joint venture;
1089 (viii) a trust where the interests of the beneficiaries are evidenced by a security;
1090 (ix) an unincorporated organization;
1091 (x) a government; or
1092 (xi) a political subdivision of a government.
1093 (y) "Precious metal" means the following, whether in coin, bullion, or other form:
1094 (i) silver;
1095 (ii) gold;
1096 (iii) platinum;
1097 (iv) palladium;
1098 (v) copper; and
1099 (vi) such other substances as the division may specify by rule.
1100 (z) "Promoter" means a person who, acting alone or in concert with one or more
1101 persons, takes initiative in founding or organizing the business or enterprise of a person.
1102 (aa) (i) Except as provided in Subsection (1)(aa)(ii), "record" means information that
1103 is:
1104 (A) inscribed in a tangible medium; or
1105 (B) (I) stored in an electronic or other medium; and
1106 (II) retrievable in perceivable form.
1107 (ii) This Subsection (1)(aa) does not apply when the context requires otherwise,
1108 including when "record" is used in the following phrases:
1109 (A) "of record";
1110 (B) "official record"; or
1111 (C) "public record."
1112 (bb) (i) "Sale" or "sell" includes a contract for sale of, contract to sell, or disposition of,
1113 a security or interest in a security for value.
1114 (ii) "Offer" or "offer to sell" includes an attempt or offer to dispose of, or solicitation of
1115 an offer to buy, a security or interest in a security for value.
1116 (iii) The following are examples of the definitions in Subsection (1)(bb)(i) or (ii):
1117 (A) a security given or delivered with or as a bonus on account of a purchase of a
1118 security or any other thing, is part of the subject of the purchase, and is offered and sold for
1119 value;
1120 (B) a purported gift of assessable stock is an offer or sale as is each assessment levied
1121 on the stock;
1122 (C) an offer or sale of a security that is convertible into, or entitles its holder to acquire
1123 or subscribe to another security of the same or another issuer is an offer or sale of that security,
1124 and also an offer of the other security, whether the right to convert or acquire is exercisable
1125 immediately or in the future;
1126 (D) a conversion or exchange of one security for another constitutes an offer or sale of
1127 the security received in a conversion or exchange, and the offer to buy or the purchase of the
1128 security converted or exchanged;
1129 (E) securities distributed as a dividend wherein the person receiving the dividend
1130 surrenders the right, or the alternative right, to receive a cash or property dividend is an offer or
1131 sale;
1132 (F) a dividend of a security of another issuer is an offer or sale; or
1133 (G) the issuance of a security under a merger, consolidation, reorganization,
1134 recapitalization, reclassification, or acquisition of assets constitutes the offer or sale of the
1135 security issued as well as the offer to buy or the purchase of a security surrendered in
1136 connection therewith, unless the sole purpose of the transaction is to change the issuer's
1137 domicile.
1138 (iv) The terms defined in Subsections (1)(bb)(i) and (ii) do not include:
1139 (A) a good faith gift;
1140 (B) a transfer by death;
1141 (C) a transfer by termination of a trust or of a beneficial interest in a trust;
1142 (D) a security dividend not within Subsection (1)(bb)(iii)(E) or (F); or
1143 (E) a securities split or reverse split.
1144 (cc) "Securities Act of 1933," "Securities Exchange Act of 1934," and "Investment
1145 Company Act of 1940" mean the federal statutes of those names as amended before or after the
1146 effective date of this chapter.
1147 (dd) "Securities Exchange Commission" means the United States Securities Exchange
1148 Commission created by the Securities Exchange Act of 1934.
1149 (ee) (i) "Security" means a:
1150 (A) note;
1151 (B) stock;
1152 (C) treasury stock;
1153 (D) bond;
1154 (E) debenture;
1155 (F) evidence of indebtedness;
1156 (G) certificate of interest or participation in a profit-sharing agreement;
1157 (H) collateral-trust certificate;
1158 (I) preorganization certificate or subscription;
1159 (J) transferable share;
1160 (K) investment contract;
1161 (L) burial certificate or burial contract;
1162 (M) voting-trust certificate;
1163 (N) certificate of deposit for a security;
1164 (O) certificate of interest or participation in an oil, gas, or mining title or lease or in
1165 payments out of production under such a title or lease;
1166 (P) commodity contract or commodity option;
1167 (Q) interest in a limited liability company;
1168 (R) life settlement interest; or
1169 (S) in general, an interest or instrument commonly known as a "security," or a
1170 certificate of interest or participation in, temporary or interim certificate for, receipt for,
1171 guarantee of, or warrant or right to subscribe to or purchase an item listed in Subsections
1172 (1)(ee)(i)(A) through (R).
1173 (ii) "Security" does not include:
1174 (A) an insurance or endowment policy or annuity contract under which an insurance
1175 company promises to pay money in a lump sum or periodically for life or some other specified
1176 period;
1177 (B) an interest in a limited liability company in which the limited liability company is
1178 formed as part of an estate plan where all of the members are related by blood or marriage, or
1179 the person claiming this exception can prove that all of the members are actively engaged in the
1180 management of the limited liability company; or
1181 (C) (I) a whole long-term estate in real property;
1182 (II) an undivided fractionalized long-term estate in real property that consists of 10 or
1183 fewer owners; or
1184 (III) an undivided fractionalized long-term estate in real property that consists of more
1185 than 10 owners if, when the real property estate is subject to a management agreement:
1186 (Aa) the management agreement permits a simple majority of owners of the real
1187 property estate to not renew or to terminate the management agreement at the earlier of the end
1188 of the management agreement's current term, or 180 days after the day on which the owners
1189 give notice of termination to the manager;
1190 (Bb) the management agreement prohibits, directly or indirectly, the lending of the
1191 proceeds earned from the real property estate or the use or pledge of its assets to a person or
1192 entity affiliated with or under common control of the manager; and
1193 (Cc) the management agreement complies with any other requirement imposed by rule
1194 by the Real Estate Commission under Section [
1195 (iii) For purposes of Subsection (1)(ee)(ii)(B), evidence that members vote or have the
1196 right to vote, or the right to information concerning the business and affairs of the limited
1197 liability company, or the right to participate in management, may not establish, without more,
1198 that all members are actively engaged in the management of the limited liability company.
1199 (ff) "State" means a state, territory, or possession of the United States, the District of
1200 Columbia, and Puerto Rico.
1201 (gg) (i) "Undivided fractionalized long-term estate" means an ownership interest in real
1202 property by two or more persons that is a:
1203 (A) tenancy in common; or
1204 (B) any other legal form of undivided estate in real property including:
1205 (I) a fee estate;
1206 (II) a life estate; or
1207 (III) other long-term estate.
1208 (ii) "Undivided fractionalized long-term estate" does not include a joint tenancy.
1209 (hh) "Whole long-term estate" means a person owns or persons through joint tenancy
1210 own real property through:
1211 (i) a fee estate;
1212 (ii) a life estate; or
1213 (iii) other long-term estate.
1214 (ii) "Working days" means 8 a.m. to 5 p.m., Monday through Friday, exclusive of legal
1215 holidays listed in Section 63G-1-301 .
1216 (2) A term not defined in this section shall have the meaning as established by division
1217 rule. The meaning of a term neither defined in this section nor by rule of the division shall be
1218 the meaning commonly accepted in the business community.
1219 (3) (a) This Subsection (3) applies to:
1220 (i) the offer or sale of a real property estate exempted from the definition of security
1221 under Subsection (1)(ee)(ii)(C); or
1222 (ii) the offer or sale of an undivided fractionalized long-term estate that is the offer of a
1223 security.
1224 (b) A person who, directly or indirectly receives compensation in connection with the
1225 offer or sale as provided in this Subsection (3) of a real property estate is not an agent,
1226 broker-dealer, investment adviser, or investment adviser representative under this chapter if
1227 that person is licensed under Chapter [
1228 Practices Act, as:
1229 (i) a principal [
1230 (ii) an associate [
1231 (iii) a [
1232 (4) The list of real property estates excluded from the definition of securities under
1233 Subsection (1)(ee)(ii)(C) is not an exclusive list of real property estates or interests that are not
1234 a security.
1235 Section 18. Section 61-2-101 is enacted to read:
1236
1237
1238 61-2-101. Title.
1239 This chapter is known as the "Division of Real Estate."
1240 Section 19. Section 61-2-102 is enacted to read:
1241 61-2-102. Definitions.
1242 As used in this chapter:
1243 (1) "Department" means the Department of Commerce.
1244 (2) "Director" means the director of the division appointed under Section 61-2-201 .
1245 (3) "Division" means the Division of Real Estate created in Section 61-2-201 .
1246 (4) "Executive director" means the executive director of the department appointed
1247 under Section 13-1-3 .
1248 Section 20. Section 61-2-201 , which is renumbered from Section 61-2-5 is renumbered
1249 and amended to read:
1250
1251 [
1252 Personnel.
1253 (1) There is created within the [
1254 Real Estate. [
1255 (a) this chapter;
1256 (b) Title 57, Chapter 11, Utah Uniform Land Sales Practices Act;
1257 (c) Title 57, Chapter 19, Timeshare and Camp Resort Act;
1258 (d) Title 57, Chapter 23, Real Estate Cooperative Marketing Act;
1259 [
1260 [
1261 [
1262 [
1263 Act[
1264 (h) Chapter 2f, Real Estate Licensing and Practices Act.
1265 (2) The division is under the direction and control of a director appointed by the
1266 executive director of the department with the approval of the governor. The director holds the
1267 office of director at the pleasure of the governor.
1268 (3) The director, with the approval of the executive director, may employ personnel
1269 necessary to discharge the duties of the division at salaries to be fixed by the director according
1270 to standards established by the Department of Administrative Services.
1271 [
1272
1273
1274 [
1275
1276
1277 Section 21. Section 61-2-202 is enacted to read:
1278 61-2-202. Powers and duties of the director or division.
1279 (1) On or before October 1 of each year, in conjunction with the department, the
1280 director shall report to the governor and the Legislature concerning the division's work for the
1281 fiscal year immediately preceding the report.
1282 (2) In conjunction with the executive director, the director shall prepare and submit to
1283 the governor and the Legislature a budget for the fiscal year that follows the convening of the
1284 Legislature.
1285 Section 22. Section 61-2-203 , which is renumbered from Section 61-2-5.1 is
1286 renumbered and amended to read:
1287 [
1288 The [
1289
1290 [
1291 Section 23. Section 61-2-204 , which is renumbered from Section 61-2-28 is
1292 renumbered and amended to read:
1293 [
1294 (1) For purposes of this section, "account" means the Utah Housing Opportunity
1295 Restricted Account created by this section.
1296 [
1297 Housing Opportunity Restricted Account."
1298 [
1299 (a) contributions deposited into the [
1300 account in accordance with Section 41-1a-422 ;
1301 (b) private contributions; and
1302 (c) donations or grants from public or private entities.
1303 [
1304 [
1305 Title 51, Chapter 7, State Money Management Act.
1306 (b) The Division of Finance shall deposit interest or other earnings derived from
1307 investment of account [
1308 [
1309 [
1310 charitable organizations that:
1311 (a) [
1312 and
1313 (b) have as a primary part of their mission to provide support to organizations that
1314 create affordable housing for those in severe need.
1315 [
1316 it is:
1317 (a) proposed by an organization [
1318 (b) designed to provide support to organizations that create affordable housing for
1319 those in severe need.
1320 [
1321 to receive a distribution in accordance with Subsection [
1322 (b) An organization that receives a distribution from the division in accordance with
1323 Subsection [
1324 create affordable housing for those in severe need.
1325 [
1326 Act, the division shall make rules providing procedures for an organization to apply to receive
1327 [
1328 Section 24. Section 61-2b-2 is amended to read:
1329 61-2b-2. Definitions.
1330 (1) As used in this chapter:
1331 (a) (i) "Appraisal" means an unbiased analysis, opinion, or conclusion relating to the
1332 nature, quality, value, or utility of a specified interest in, or aspect of, identified real estate or
1333 identified real property.
1334 (ii) An appraisal is classified by the nature of the assignment as a valuation appraisal,
1335 an analysis assignment, or a review assignment in accordance with the following definitions:
1336 (A) "Analysis assignment" means an unbiased analysis, opinion, or conclusion that
1337 relates to the nature, quality, or utility of identified real estate or identified real property.
1338 (B) "Review assignment" means an unbiased analysis, opinion, or conclusion that
1339 forms an opinion as to the adequacy and appropriateness of a valuation appraisal or an analysis
1340 assignment.
1341 (C) "Valuation appraisal" means an unbiased analysis, opinion, or conclusion that
1342 estimates the value of an identified parcel of real estate or identified real property at a particular
1343 point in time.
1344 (b) "Appraisal Foundation" means the Appraisal Foundation that was incorporated as
1345 an Illinois not-for-profit corporation on November 30, 1987.
1346 (c) (i) "Appraisal report" means a communication, written or oral, of an appraisal.
1347 (ii) An appraisal report is classified by the nature of the assignment as a valuation
1348 report, analysis report, or review report in accordance with the definitions provided in
1349 Subsection (1)(a)(ii).
1350 (iii) The testimony of a person relating to the person's analyses, conclusions, or
1351 opinions concerning identified real estate or identified real property is considered to be an oral
1352 appraisal report.
1353 (d) "Appraisal Qualification Board" means the Appraisal Qualification Board of the
1354 Appraisal Foundation.
1355 [
1356 that is established in Section 61-2b-7 .
1357 [
1358 certified by a state-certified general appraiser or state-certified residential appraiser.
1359 (g) "Concurrence" means that the entities that are given a concurring role jointly agree
1360 to an action.
1361 [
1362 valuation service analysis, opinion, conclusion, or other service that does not fall within the
1363 definition of appraisal.
1364 (B) "Consultation service" does not mean a valuation appraisal, analysis assignment, or
1365 review assignment.
1366 (ii) Regardless of the intention of the client or employer, if a person prepares an
1367 unbiased analysis, opinion, or conclusion, the analysis, opinion, or conclusion is considered to
1368 be an appraisal and not a consultation service.
1369 [
1370 which is dependent on or conditioned by:
1371 (i) the reporting of a predetermined analysis, opinion, or conclusion by the person
1372 performing the analysis, opinion, or conclusion; or
1373 (ii) achieving a result specified by the person requesting the analysis, opinion, or
1374 conclusion.
1375 [
1376 [
1377 required by federal law or by federal regulation to be supported by an appraisal prepared by:
1378 (i) a state-licensed appraiser; or
1379 (ii) a state-certified appraiser.
1380 [
1381 improvements if any.
1382 [
1383 appraisal of real estate or real property and preparing an appraisal report.
1384 [
1385 (i) the sale, lease, purchase, investment in, or exchange of real property or an interest in
1386 real property, or the financing of such a transaction;
1387 (ii) the refinancing of real property or an interest in real property; or
1388 (iii) the use of real property or an interest in real property as security for a loan or
1389 investment, including mortgage-backed securities.
1390 [
1391 inherent in the ownership of real estate.
1392 [
1393 certification as a state-certified general appraiser issued under this chapter.
1394 [
1395 valid certification as a state-certified residential real estate appraiser issued under this chapter.
1396 [
1397 a state-licensed appraiser issued under this chapter.
1398 [
1399 (i) does not hold an appraiser license or appraiser certification issued under this
1400 chapter;
1401 (ii) works under the direct supervision of a state-certified appraiser to earn experience
1402 for licensure; and
1403 (iii) is registered as a trainee under this chapter.
1404 [
1405 conclusion relating to the nature, quality, value, or utility of identified real estate or identified
1406 real property that is prepared by a person who is employed or retained to act, or would be
1407 perceived by third parties or the public as acting, as a disinterested third party in rendering the
1408 analysis, opinion, or conclusion.
1409 (2) (a) If a term not defined in this section is defined by rule, the term shall have the
1410 meaning established by the division by rule made in accordance with Title 63G, Chapter 3,
1411 Utah Administrative Rulemaking Act.
1412 (b) If a term not defined in this section is not defined by rule, the term shall have the
1413 meaning commonly accepted in the business community.
1414 Section 25. Section 61-2b-3 is amended to read:
1415 61-2b-3. License or certification required.
1416 (1) Except as provided in Subsection (2) and in Subsection 61-2b-6 (2), it is unlawful
1417 for [
1418 certified appraisal report, or perform a consultation service relating to real estate or real
1419 property in this state without first being licensed or certified in accordance with this chapter.
1420 (2) This section does not apply to:
1421 (a) a [
1422 Section [
1423 broker's or sales agent's business, gives an opinion:
1424 (i) regarding the value of real estate;
1425 (ii) to a potential seller or third party recommending a listing price of real estate; or
1426 (iii) to a potential buyer or third party recommending a purchase price of real estate;
1427 (b) an employee of a company who states an opinion of value or prepares a report
1428 containing value conclusions relating to real estate or real property solely for the company's
1429 use;
1430 (c) [
1431 scope of the official's or employee's duties, unless otherwise required by Utah law;
1432 (d) an auditor or accountant who states an opinion of value or prepares a report
1433 containing value conclusions relating to real estate or real property while performing an audit;
1434 (e) an individual, except an individual who is required to be licensed or certified under
1435 this chapter, who states an opinion about the value of property in which the person has an
1436 ownership interest;
1437 (f) an individual who states an opinion of value if no consideration is paid or agreed to
1438 be paid for the opinion and no other party is reasonably expected to rely on the individual's
1439 appraisal expertise;
1440 (g) an individual, such as a researcher or a secretary, who does not render significant
1441 professional assistance, as defined by the board, in arriving at a real estate appraisal analysis,
1442 opinion, or conclusion; or
1443 (h) an attorney authorized to practice law in this state who, in the course of the
1444 attorney's practice, uses an appraisal report governed by this chapter or who states an opinion
1445 of the value of real estate.
1446 (3) An opinion of value or report containing value conclusions exempt under
1447 Subsection (2) may not be referred to as an appraisal.
1448 Section 26. Section 61-2b-6 is amended to read:
1449 61-2b-6. Duties and powers of division.
1450 (1) The division has the powers and duties listed in this Subsection (1).
1451 (a) The division shall:
1452 (i) receive an application for licensing, certification, or registration;
1453 (ii) establish appropriate administrative procedures for the processing of an application
1454 for licensure, certification, or registration;
1455 (iii) issue a license or certification to a qualified applicant pursuant to this chapter; and
1456 (iv) register an individual who applies and qualifies for registration as a trainee under
1457 this chapter.
1458 (b) (i) The division shall require an individual to register with the division as a trainee
1459 [
1460 licensure.
1461 (ii) Subject to Subsection (4), the board shall adopt rules in accordance with Title 63G,
1462 Chapter 3, Utah Administrative Rulemaking Act, for:
1463 (A) the trainee registration required by this Subsection (1)(b); and
1464 (B) renewal of the trainee registration required by this Subsection (1)(b).
1465 (c) The division shall hold public hearings under the direction of the board.
1466 (d) The division may:
1467 (i) solicit bids and enter into contracts with one or more educational testing services or
1468 organizations for the preparation of a bank of questions and answers [
1469
1470 (ii) administer or contract for the administration of licensing and certification
1471 examinations as may be required to carry out the division's responsibilities under this chapter.
1472 (e) The division shall provide administrative assistance to the board by providing to the
1473 board the facilities, equipment, supplies, and personnel that are required to enable the board to
1474 carry out the board's responsibilities under this chapter.
1475 [
1476
1477 [
1478 education available to a person licensed [
1479 [
1480 explanation of the Uniform Standards of Professional Appraisal Practice as required by Section
1481 61-2b-27 when an interpretation or explanation becomes necessary in the enforcement of this
1482 chapter.
1483 [
1484 (i) for processing:
1485 [
1486 [
1487 [
1488 (ii) for [
1489 (i) If a person pays a fee or costs to the division with a negotiable instrument and the
1490 negotiable instrument is not honored for payment:
1491 (i) the transaction for which the payment is submitted is voidable by the division;
1492 (ii) the division may reverse the transaction if payment of the applicable fee or costs is
1493 not received in full; and
1494 (iii) the person's license, certification, or registration is automatically suspended:
1495 (A) beginning the day on which the payment is due; and
1496 (B) ending the day on which payment is made in full.
1497 (j) The division may:
1498 (i) investigate a complaint against:
1499 [
1500 [
1501 [
1502 (ii) subpoena a witness;
1503 (iii) subpoena the production of a book, paper, document, record, [
1504 contract, or evidence;
1505 (iv) administer an oath; and
1506 (v) take testimony and receive evidence concerning a matter within the division's
1507 jurisdiction.
1508 (k) The division may:
1509 (i) promote research and conduct studies relating to the profession of real estate
1510 appraising; and
1511 (ii) sponsor real estate appraisal educational activities.
1512 (l) The division shall adopt, with the concurrence of the board, rules for the
1513 administration of this chapter pursuant to Title 63G, Chapter 3, Utah Administrative
1514 Rulemaking Act, that are not inconsistent with this chapter or the constitution and laws of this
1515 state or of the United States.
1516 (m) The division shall employ an appropriate staff to investigate allegations that a
1517 person required to be licensed, certified, or registered under this chapter fails to comply with
1518 this chapter.
1519 (n) The division may employ other professional, clerical, and technical staff as may be
1520 necessary to properly administer the work of the division under this chapter.
1521 (o) [
1522
1523 names and addresses of [
1524 this chapter [
1525
1526 (ii) A person who requests a list under this Subsection (1)(o) shall pay the costs
1527 incurred by the division to make the list available.
1528 (2) (a) The division shall approve an expert witness who is not otherwise licensed or
1529 certified under this chapter to appear in an administrative or judicial tax proceeding to provide
1530 evidence related to the valuation of real property that is assessed by the State Tax Commission,
1531 [
1532 (i) approval is limited to a specific proceeding;
1533 (ii) approval is valid until the proceeding becomes final;
1534 (iii) applicant pays to the division an approval fee [
1535 with Section 63J-1-504 ;
1536 (iv) applicant provides the applicant's name, address, occupation, and professional
1537 credentials; and
1538 (v) applicant provides a notarized statement that:
1539 (A) the applicant is competent to render an appraisal and to testify as an expert witness
1540 in the proceeding; and
1541 (B) the appraisal and testimony to be offered shall be in accordance with the Uniform
1542 Standards of Professional Appraisal Practice adopted by the board.
1543 (b) Subsection (2)(a) [
1544 tax proceeding related to the valuation of real property that is assessed by the State Tax
1545 Commission.
1546 (3) (a) If the conditions of Subsection (3)(b) are met, the division is immune from any
1547 civil action or criminal prosecution for initiating or assisting in a lawful investigation of an act
1548 of, or participating in a disciplinary proceeding concerning:
1549 (i) a person required to be licensed, certified, or registered pursuant to this chapter; or
1550 (ii) a person approved as an expert witness pursuant to this chapter.
1551 (b) This Subsection (3) applies if the division takes the action:
1552 (i) without malicious intent; and
1553 (ii) in the reasonable belief that the action is taken pursuant to the powers and duties
1554 vested in the division under this chapter.
1555 (4) (a) An individual applying to register as a trainee under this chapter shall:
1556 (i) submit a fingerprint card in a form acceptable to the division at the time of applying
1557 for registration; and
1558 (ii) consent to a criminal background check by:
1559 (A) the Utah Bureau of Criminal Identification; and
1560 (B) the Federal Bureau of Investigation.
1561 (b) The division shall request the Department of Public Safety to complete a Federal
1562 Bureau of Investigation criminal background check for an applicant through a national criminal
1563 history system.
1564 (c) The applicant shall pay the cost of:
1565 (i) the fingerprinting required by this section; and
1566 (ii) the criminal background check required by this section.
1567 (d) (i) A registration as a trainee under this chapter is conditional pending completion
1568 of the criminal background check required by this Subsection (4).
1569 (ii) [
1570
1571 criminal background check discloses that the applicant fails to accurately disclose a criminal
1572 history involving:
1573 (A) the appraisal industry;
1574 (B) fraud;
1575 (C) misrepresentation; or
1576 (D) deceit.
1577 (iii) If a criminal background check discloses that an applicant fails to accurately
1578 disclose a criminal history other than one described in Subsection (4)(d)(ii), the division:
1579 (A) shall review the application; and
1580 (B) in accordance with rules made by the division pursuant to Title 63G, Chapter 3,
1581 Utah Administrative Rulemaking Act, may:
1582 (I) place one or more conditions on a registration;
1583 (II) place one or more restrictions on a registration;
1584 (III) revoke a registration; or
1585 (IV) refer the application to the board for a decision.
1586 [
1587 Subsection (4)(d)(ii) or whose registration is conditioned, restricted, or revoked under
1588 Subsection (4)(d)(iii) may appeal the [
1589 (A) after the [
1590 (B) in accordance with Title 63G, Chapter 4, Administrative Procedures Act.
1591 [
1592 authority to conduct a hearing described in Subsection (4)(d)[
1593 [
1594 granted only if:
1595 (A) the criminal history upon which the division [
1596 (I) did not occur; or
1597 (II) is the criminal history of another person;
1598 (B) (I) the revocation is based on a failure to accurately disclose a criminal history; and
1599 (II) the applicant has a reasonable good faith belief at the time of application that there
1600 was no criminal history to be disclosed; or
1601 (C) the division fails to follow the prescribed procedure for the revocation.
1602 (e) If a registration is revoked or a revocation is upheld after a hearing described in
1603 Subsection (4)(d)[
1604 period of 12 months after the day on which the registration is revoked.
1605 (f) The board may delegate to the division the authority to make a decision on whether
1606 relief from a revocation should be granted.
1607 (g) [
1608 check [
1609 Section 27. Section 61-2b-8 is amended to read:
1610 61-2b-8. Duties of board.
1611 (1) (a) The board shall provide technical assistance to the division relating to real estate
1612 appraisal standards and real estate appraiser qualifications.
1613 (b) The board has the powers and duties listed in this section.
1614 (2) The board shall:
1615 (a) determine the experience[
1616 appropriate for a person licensed under this chapter;
1617 (b) determine the experience[
1618 appropriate for a person certified under this chapter:
1619 (i) in compliance with the minimum requirements of Financial Institutions Reform,
1620 Recovery, and Enforcement Act of 1989; and
1621 (ii) consistent with the intent of this chapter;
1622 (c) determine the appraisal related acts that may be performed by:
1623 (i) a trainee on the basis of the trainee's education and experience;
1624 (ii) clerical staff; and
1625 (iii) a person who:
1626 (A) does not hold a license or certification; and
1627 (B) assists an appraiser licensed or certified under this chapter in providing appraisal
1628 services or consultation services;
1629 (d) determine the procedures for a trainee to register and to renew a registration with
1630 the division; and
1631 (e) develop one or more programs to upgrade and improve the experience, education,
1632 and examinations as required under this chapter.
1633 (3) (a) The experience[
1634 the board for a person licensed or certified under this chapter shall be the minimum criteria
1635 established by the [
1636 unless, after notice and a public hearing held in accordance with Title 63G, Chapter 3, Utah
1637 Administrative Rulemaking Act, the board finds that the minimum criteria are not appropriate
1638 for a state-licensed appraiser or a state-certified appraiser in this state.
1639 (b) If under Subsection (3)(a) the board makes a finding that the minimum criteria are
1640 not appropriate, the board shall recommend appropriate criteria to the Legislature.
1641 (4) The board shall:
1642 (a) determine the continuing education requirements appropriate for the renewal of a
1643 license, certification, or registration issued under this chapter, except that the continuing
1644 education requirements established by the board shall at least meet the minimum criteria
1645 established by the Appraisal Qualification Board;
1646 (b) develop one or more programs to upgrade and improve continuing education; and
1647 (c) recommend to the division one or more available continuing education courses that
1648 meet the requirements of this chapter.
1649 (5) (a) The board shall consider the proper interpretation or explanation of the Uniform
1650 Standards of Professional Appraisal Practice as required by Section 61-2b-27 when:
1651 (i) an interpretation or explanation is necessary in the enforcement of this chapter; and
1652 (ii) the Appraisal Standards Board of the Appraisal Foundation has not issued an
1653 interpretation or explanation.
1654 (b) If the conditions of Subsection (5)(a) are met, the board shall recommend to the
1655 division the appropriate interpretation or explanation that the division should adopt as a rule
1656 under this chapter.
1657 (c) The board may by rule made in accordance with Title 63G, Chapter 3, Utah
1658 Administrative Rulemaking Act, and Section 61-2b-27 provide for an exemption from a
1659 provision of the Uniform Standards of Professional Appraisal Practice for an activity engaged
1660 in on behalf of a governmental entity.
1661 [
1662
1663 [
1664 [
1665
1666 [
1667
1668 [
1669
1670 [
1671 board to an administrative law judge, in connection with a disciplinary proceeding under
1672 Sections 61-2b-30 and 61-2b-31 concerning:
1673 (i) a person required to be licensed, certified, or registered under this chapter; and
1674 (ii) the person's failure to comply with this chapter and the Uniform Standards of
1675 Professional Appraisal Practice as adopted under Section 61-2b-27 .
1676 (b) The board shall issue in an administrative hearing a decision that contains findings
1677 of fact and conclusions of law.
1678 (c) When a determination is made that a person required to be licensed, certified, or
1679 registered under this chapter has violated this chapter, the division shall implement disciplinary
1680 action determined by the board.
1681 [
1682 for a disciplinary proceeding concerning a person required to be registered, licensed, certified,
1683 or approved as an expert under this chapter if the action is taken without malicious intent and
1684 in the reasonable belief that the action taken was taken pursuant to the powers and duties
1685 vested in a member of the board under this chapter.
1686 [
1687 honesty, competency, integrity, and truthfulness of an applicant for:
1688 (a) original licensure, certification, or registration; and
1689 (b) renewal licensure [
1690 Section 28. Section 61-2b-10 is amended to read:
1691 61-2b-10. State-licensed appraiser -- Authority and qualifications.
1692 (1) A state-licensed appraiser is authorized to appraise complex and noncomplex 1-4
1693 family residential units in this state having a transaction value permitted under the Financial
1694 Institutions Reform, Recovery, and Enforcement Act of 1989, and related federal regulations.
1695 (2) A state-licensed appraiser is authorized to appraise vacant or unimproved land
1696 having a transaction value permitted under the Financial Institutions Reform, Recovery, and
1697 Enforcement Act of 1989, and related federal regulations that is utilized for 1-4 family
1698 purposes or for which the highest and best use is 1-4 family purposes and subdivisions for
1699 which a development analysis/appraisal is not necessary.
1700 (3) A state-licensed appraiser may not issue a certified appraisal report.
1701 (4) To qualify as a state-licensed appraiser, an applicant must:
1702 (a) be of good moral character;
1703 (b) demonstrate honesty, competency, integrity, and truthfulness;
1704 [
1705 [
1706 [
1707 [
1708 (i) real estate appraisal;
1709 (ii) the Uniform Standards of Professional Appraisal Practice; and
1710 (iii) ethical rules to be observed by a real estate appraiser as required by Section
1711 61-2b-27 ; and
1712 [
1713 as established by rule.
1714 (5) The courses of study under Subsection (4)[
1715 (a) a college or university;
1716 (b) a community or junior college;
1717 (c) a real estate appraisal or real estate related organization;
1718 (d) a state or federal agency or commission;
1719 (e) a proprietary school;
1720 (f) a provider approved by a state certification and licensing agency; or
1721 (g) the Appraisal Foundation or its boards.
1722 [
1723
1724 Section 29. Section 61-2b-14 is amended to read:
1725 61-2b-14. State-certified residential appraiser -- Application.
1726 (1) [
1727 division evidence of:
1728 (a) the applicant's good moral character, honesty, competency, integrity, and
1729 truthfulness;
1730 [
1731 determined by the [
1732 [
1733 (A) college;
1734 (B) junior college;
1735 (C) community college; or
1736 (D) university; or
1737 (ii) [
1738 matter courses from an accredited:
1739 (A) college;
1740 (B) junior college;
1741 (C) community college; or
1742 (D) university;
1743 [
1744 curriculum:
1745 (i) of specific appraisal education determined by rule made by the board; and
1746 (ii) that includes a course in the Uniform Standards of Professional Practice or its
1747 equivalent that [
1748
1749
1750 [
1751 established by rule; and
1752 [
1753 (1)(e) within a reasonable period, as determined by rule, immediately preceding the filing of
1754 the application for certification.
1755 (2) Upon request by the division, [
1756 for examination:
1757 (a) a detailed listing of the real estate appraisal reports or file memoranda for each year
1758 for which experience is claimed; and
1759 (b) a sample selected by the division of appraisal reports that the applicant has prepared
1760 in the course of the applicant's appraisal practice.
1761 (3) The classroom hours required by Subsection (1)[
1762 (a) a college or university;
1763 (b) a community or junior college;
1764 (c) a real estate appraisal or real estate related organization;
1765 (d) a state or federal agency or commission;
1766 (e) a proprietary school;
1767 (f) a provider approved by a state certification and licensing agency; or
1768 (g) the Appraisal Foundation or its boards.
1769 Section 30. Section 61-2b-15 is amended to read:
1770 61-2b-15. State-certified general appraiser -- Application -- Qualifications.
1771 (1) [
1772 division evidence of:
1773 (a) the applicant's good moral character, honesty, competency, integrity, and
1774 truthfulness;
1775 [
1776 determined by the [
1777 [
1778 university; or
1779 (ii) [
1780 matter courses from an accredited:
1781 (A) college;
1782 (B) junior college;
1783 (C) community college; or
1784 (D) university;
1785 [
1786 curriculum:
1787 (i) of specific appraisal education determined by rule; and
1788 (ii) that includes a course in the Uniform Standards of Professional Practice or its
1789 equivalent that has been approved by the Appraisal [
1790
1791
1792 [
1793 established by rule; and
1794 [
1795 (1)(e) within a reasonable period, as determined by rule, immediately preceding the filing of
1796 the application for certification.
1797 (2) Upon request by the division, [
1798 for examination:
1799 (a) a detailed listing of the real estate appraisal reports or file memoranda for each year
1800 for which experience is claimed; and
1801 (b) a sample selected by the division of appraisal reports that the applicant has prepared
1802 in the course of the applicant's appraisal practice.
1803 (3) The classroom hours required by Subsection (1)[
1804 (a) a college or university;
1805 (b) a community or junior college;
1806 (c) a real estate appraisal or real estate related organization;
1807 (d) a state or federal agency or commission;
1808 (e) a proprietary school;
1809 (f) a provider approved by a state certification and licensing agency; or
1810 (g) the Appraisal Foundation or its boards.
1811 Section 31. Section 61-2b-17 is amended to read:
1812 61-2b-17. State-certified and state-licensed appraisers -- Restrictions on use of
1813 terms -- Conduct prohibited or required -- Trainee.
1814 (1) (a) The terms "state-certified general appraiser," "state-certified residential
1815 appraiser," and "state-licensed appraiser":
1816 (i) may only be used to refer to an individual who is certified or licensed under this
1817 chapter; and
1818 (ii) may not be used following, or immediately in connection with, the name or
1819 signature of a firm, partnership, corporation, or group, or in any manner that it might be
1820 interpreted as referring to a firm, partnership, corporation, group, or to anyone other than the
1821 individual who is certified or licensed under this chapter.
1822 (b) The requirement of this Subsection (1) may not be construed to prevent a
1823 state-certified general appraiser from signing an appraisal report on behalf of a corporation,
1824 partnership, firm, or group practice if it is clear that:
1825 (i) only the individual is certified; and
1826 (ii) the corporation, partnership, firm, or group practice is not certified.
1827 (c) Except as provided in Section 61-2b-25 , a certificate or license may not be issued
1828 under this chapter to a corporation, partnership, firm, or group.
1829 (2) (a) A person other than a state-certified general appraiser or state-certified
1830 residential appraiser, may not assume or use any title, designation, or abbreviation likely to
1831 create the impression of certification in this state as a real estate appraiser.
1832 (b) A person other than a state-licensed appraiser may not assume or use any title,
1833 designation, or abbreviation likely to create the impression of licensure in this state as a real
1834 estate appraiser.
1835 (3) (a) Only an individual who has qualified under the certification requirements of this
1836 chapter is authorized to prepare and sign a certified appraisal report relating to real estate or
1837 real property in this state.
1838 (b) If a certified appraisal report is prepared and signed by a state-certified residential
1839 appraiser, the certified appraisal report shall state, immediately following the signature on the
1840 report, "State-Certified Residential Appraiser."
1841 (c) If a certified appraisal report is prepared and signed by a state-certified general
1842 appraiser, the certified appraisal report shall state, immediately following the signature on the
1843 report, "State-Certified General Appraiser."
1844 (d) An appraisal report prepared by a state-licensed appraiser shall state, immediately
1845 following the signature on the report, "State-Licensed Appraiser."
1846 (e) When signing a certified appraisal report, a state-certified appraiser shall also place
1847 on the report, immediately below the state-certified appraiser's signature the state-certified
1848 appraiser's certificate number and its expiration date.
1849 (f) A state-certified residential appraiser may not prepare a certified appraisal report
1850 outside the state-certified residential appraiser's authority as defined in Section 61-2b-13 .
1851 (g) A state-licensed appraiser who assisted in the preparation of a certified appraisal
1852 report is authorized to cosign the certified appraisal report.
1853 (4) A person who has not qualified under this chapter may not describe or refer to any
1854 appraisal or appraisal report relating to real estate or real property in this state by the terms
1855 "certified appraisal" or "certified appraisal report."
1856 (5) If a trainee assists [
1857 preparation of an appraisal report, the appraisal report shall disclose:
1858 (a) the trainee's name; and
1859 (b) the extent to which the trainee assists in the preparation of the appraisal report.
1860 Section 32. Section 61-2b-18 is amended to read:
1861 61-2b-18. Application for licensure, certification, or registration -- Approval as
1862 an expert witness.
1863 (1) An application for the following shall be sent to the division on a form approved by
1864 the division:
1865 (a) original certification, licensure, or registration;
1866 (b) approval as an expert witness; and
1867 (c) renewal of certification [
1868 (2) The payment of the appropriate fee, as [
1869 concurrence of the board, in accordance with Section 63J-1-504 , must accompany an
1870 application for:
1871 (a) approval as an expert witness;
1872 (b) original certification, licensure, or registration; and
1873 (c) renewal of certification [
1874 (3) At the time of filing an application described in Subsection (1), an applicant shall:
1875 (a) sign a pledge to comply with the Uniform Standards of Professional Appraisal
1876 Practice and the ethical rules to be observed by an appraiser that are established under Section
1877 61-2b-27 for:
1878 (i) a certified or licensed appraiser;
1879 (ii) a trainee; or
1880 (iii) an expert witness approved under this chapter; and
1881 (b) certify that the applicant understands the types of misconduct, as set forth in this
1882 chapter, for which a disciplinary proceeding may be initiated against a person certified,
1883 licensed, or registered under this chapter.
1884 Section 33. Section 61-2b-19 is amended to read:
1885 61-2b-19. Expiration of license, certification, or registration.
1886 (1) [
1887 expires on the expiration date indicated on the license [
1888 (2) A renewal license [
1889 expires two years from the date of issuance.
1890 (3) (a) The scheduled expiration date of [
1891 shall appear on the license [
1892
1893 (b) The division is not required to provide a holder of a license, certification, or
1894 registration notice of its expiration.
1895 Section 34. Section 61-2b-20 is amended to read:
1896 61-2b-20. Renewal of license, certification, or registration.
1897 [
1898
1899
1900
1901 [
1902 (1) To renew a license, certification, or registration, before the license, certification, or
1903 registration expires, the holder of the license, certification, or registration shall submit to the
1904 division in compliance with procedures set by the division and the board:
1905 (a) an application for renewal;
1906 (b) a fee established by the division and the board, in accordance with Section
1907 63J-1-504 ; and
1908 (c) evidence in the form prescribed by the division of having completed the continuing
1909 education requirements for renewal specified in this chapter.
1910 [
1911 before its expiration date.
1912 (b) For a period of 30 days after the expiration date, a license [
1913 registration may be reinstated upon:
1914 (i) payment of a renewal fee and a late fee determined by the division and the board;
1915 and
1916 (ii) satisfying the continuing education requirements specified in Section 61-2b-40 .
1917 (c) After the 30-day period described in Subsection [
1918 after the expiration date, [
1919 (i) paying a renewal fee and a reinstatement fee determined by the division and the
1920 board; and
1921 (ii) satisfying the continuing education requirements specified in Section 61-2b-40 .
1922 (d) After the six-month period described in Subsection [
1923 after the expiration date, [
1924 (i) paying a renewal fee and a reinstatement fee determined by the division and the
1925 board in accordance with Section 63J-1-504 ;
1926 (ii) providing proof acceptable to the division and the board of the person having
1927 satisfied the continuing education requirements of Section 61-2b-40 ; and
1928 (iii) providing proof acceptable to the division and the board of the person completing
1929 24 hours of continuing education:
1930 (A) in addition to the requirements in Section 61-2b-40 ; and
1931 (B) on a subject determined by the division by rule made in accordance with Title 63G,
1932 Chapter 3, Utah Administrative Rulemaking Act.
1933 (e) The division shall relicense [
1934 renew that person's license [
1935 date as prescribed for an original application.
1936 (f) Notwithstanding Subsection [
1937 license, certification, or registration that would expire under Subsection [
1938 the extension if:
1939 (i) the person complies with the requirements of this section to renew the license,
1940 certification, or registration; and
1941 (ii) at the time of the extension, there is pending under this chapter:
1942 (A) the application for renewal of the license, certification, registration; or
1943 (B) a disciplinary action.
1944 [
1945 notify the division of the following by sending the division a signed statement within 10
1946 business days of:
1947 (a) (i) a conviction of a criminal offense;
1948 (ii) the entry of a plea in abeyance to a criminal offense; or
1949 (iii) the potential resolution of a criminal case by:
1950 (A) a diversion agreement; or
1951 (B) any other agreement under which a criminal charge is suspended for a period of
1952 time;
1953 (b) filing a personal bankruptcy or business bankruptcy;
1954 (c) the suspension, revocation, surrender, cancellation, or denial of a professional
1955 license, certification, or registration of the person, whether the license, certification, or
1956 registration is issued by this state or another jurisdiction; or
1957 (d) the entry of a cease and desist order or a temporary or permanent injunction:
1958 (i) against the person by a court or [
1959 (ii) on the basis of:
1960 (A) conduct or a practice involving an act regulated by this chapter; or
1961 (B) conduct involving fraud, misrepresentation, or deceit.
1962 Section 35. Section 61-2b-25 is amended to read:
1963 61-2b-25. Other law unaffected.
1964 [
1965 person approved, licensed, [
1966 practice of real estate appraising as a professional corporation or a limited liability company in
1967 accordance with:
1968 (1) Title 16, Chapter 11, Professional Corporation Act; or
1969 (2) Title 48, Chapter 2c, Utah Revised Limited Liability Company Act.
1970 Section 36. Section 61-2b-28 is amended to read:
1971 61-2b-28. Enforcement -- Investigation -- Orders -- Hearings.
1972 (1) (a) The division may investigate the actions of:
1973 (i) a person registered, licensed, or certified under this chapter;
1974 (ii) an applicant for registration, licensure, or certification;
1975 (iii) an applicant for renewal of registration, licensure, or certification; or
1976 (iv) a person required to be registered, licensed, or certified under this chapter.
1977 (b) The division may initiate an agency action against a person described in Subsection
1978 (1)(a) in accordance with Title 63G, Chapter 4, Administrative Procedures Act, to:
1979 (i) impose disciplinary action;
1980 (ii) deny issuance to an applicant of:
1981 (A) an original registration, license, or certification; or
1982 (B) a renewal of a registration, license, or certification; or
1983 (iii) issue a cease and desist order as provided in Subsection (3).
1984 (2) (a) The division may:
1985 (i) administer an oath or affirmation;
1986 (ii) subpoena a witness or evidence;
1987 (iii) take evidence; and
1988 (iv) require the production of a book, paper, contract, record, [
1989 information, or evidence relevant to the investigation described in Subsection (1).
1990 (b) The division may serve a subpoena by certified mail.
1991 (c) A failure to respond to a request by the division in an investigation authorized under
1992 this chapter is considered to be a separate violation of this chapter, including:
1993 (i) failing to respond to a subpoena as a witness;
1994 (ii) withholding evidence; or
1995 (iii) failing to produce a book, paper, contract, document, information, or record.
1996 (d) (i) A person shall pay the costs incurred by the division to copy a book, paper,
1997 contract, document, information, or record required under this chapter, including the costs
1998 incurred to copy an electronic book, paper, contract, document, information, or record in a
1999 universally readable format.
2000 (ii) If a person fails to pay the costs described in Subsection (2)(d)(i), the person's
2001 license, certification, or registration is automatically suspended:
2002 (A) beginning the day on which the payment of costs is due; and
2003 (B) ending the day on which the costs are paid.
2004 (3) (a) The director shall issue and serve upon a person an order directing that person to
2005 cease and desist from an act if:
2006 (i) the director has reason to believe that the person has been engaging, is about to
2007 engage, or is engaging in the act constituting a violation of this chapter; and
2008 (ii) it appears to the director that it would be in the public interest to stop the act.
2009 (b) Within 10 days after receiving the order, the person upon whom the order is served
2010 may request a hearing.
2011 (c) Pending a hearing requested under Subsection (3)(b), a cease and desist order shall
2012 remain in effect.
2013 (d) If a request for hearing is made, the division shall follow the procedures and
2014 requirements of Title 63G, Chapter 4, Administrative Procedures Act.
2015 (4) (a) After a hearing requested under Subsection (3), if the board agrees that an act of
2016 the person violates this chapter, the board:
2017 (i) shall issue an order making the cease and desist order permanent; and
2018 (ii) may impose another disciplinary action under Section 61-2b-29 .
2019 (b) The director shall commence an action in the name of the Department of
2020 Commerce and Division of Real Estate, in the district court in the county in which an act
2021 described in Subsection (3) occurs or where the person resides or carries on business, to enjoin
2022 and restrain the person from violating this chapter if:
2023 (i) (A) a hearing is not requested under Subsection (3); and
2024 (B) the person fails to cease the act described in Subsection (3); or
2025 (ii) after discontinuing the act described in Subsection (3), the person again
2026 commences the act.
2027 (5) A remedy or action provided in this section does not limit, interfere with, or prevent
2028 the prosecution of another remedy or action, including a criminal proceeding.
2029 Section 37. Section 61-2b-29 is amended to read:
2030 61-2b-29. Disciplinary action -- Grounds.
2031 (1) (a) The board may order disciplinary action against a person:
2032 (i) registered, licensed, or certified under this chapter; or
2033 (ii) required to be registered, licensed, or certified under this chapter.
2034 (b) On the basis of a ground listed in Subsection (2) for disciplinary action, board
2035 action may include:
2036 (i) revoking, suspending, or placing a person's registration, license, or certification on
2037 probation;
2038 (ii) denying a person's original registration, license, or certification;
2039 (iii) denying a person's renewal license [
2040 (iv) in the case of denial or revocation of a registration, license, or certification, setting
2041 a waiting period for an applicant to apply for a registration, license, or certification under this
2042 chapter;
2043 (v) ordering remedial education;
2044 (vi) imposing a civil penalty upon a person not to exceed the greater of:
2045 (A) [
2046 (B) the amount of any gain or economic benefit from a violation;
2047 (vii) issuing a cease and desist order;
2048 (viii) modifying an action described in Subsections (1)(b)(i) through (vii) if the board
2049 finds that the person complies with court ordered restitution; or
2050 (ix) doing any combination of Subsections (1)(b)(i) through (viii).
2051 (c) (i) If the board or division issues an order that orders a fine or educational
2052 requirements as part of the disciplinary action against a person, including a stipulation and
2053 order, the board or division shall state in the order the deadline by which the person shall
2054 comply with the fine or educational requirements.
2055 (ii) If a person fails to comply with a stated deadline:
2056 (A) the person's license, certificate, or registration is automatically suspended:
2057 (I) beginning on the day specified in the order as the deadline for compliance; and
2058 (II) ending the day on which the person complies in full with the order; and
2059 (B) if the person fails to pay a fine required by an order, the division shall begin a
2060 collection process:
2061 (I) established by the division by rule made in accordance with Title 63G, Chapter 3,
2062 Utah Administrative Rulemaking Act; and
2063 (II) subject to Title 63A, Chapter 8, Office of State Debt Collection.
2064 (2) The following are grounds for disciplinary action under this section:
2065 (a) procuring or attempting to procure a registration, license, or certification under this
2066 chapter:
2067 (i) by fraud; or
2068 (ii) by making a false statement, submitting false information, or making a material
2069 misrepresentation in an application filed with the division;
2070 (b) paying money or attempting to pay money other than a fee provided for by this
2071 chapter to a member or employee of the division to procure a registration, license, or
2072 certification under this chapter;
2073 (c) an act or omission in the practice of real estate appraising that constitutes
2074 dishonesty, fraud, or misrepresentation;
2075 (d) entry of a judgment against a registrant, licensee, or certificate holder on grounds of
2076 fraud, misrepresentation, or deceit in the making of an appraisal of real estate;
2077 (e) a guilty plea to a criminal offense involving moral turpitude that is held in
2078 abeyance, or a conviction, including a conviction based upon a plea of guilty or nolo
2079 contendere, of a criminal offense involving moral turpitude;
2080 (f) engaging in the business of real estate appraising under an assumed or fictitious
2081 name not properly registered in this state;
2082 (g) paying a finder's fee or a referral fee to a person not licensed or certified under this
2083 chapter in connection with an appraisal of real estate or real property in this state;
2084 (h) making a false or misleading statement in:
2085 (i) that portion of a written appraisal report that deals with professional qualifications;
2086 or
2087 (ii) testimony concerning professional qualifications;
2088 (i) violating or disregarding:
2089 (i) [
2090 (ii) an order of the board; or
2091 (iii) a rule issued under this chapter;
2092 (j) violating the confidential nature of governmental records to which a person
2093 registered, licensed, certified, or approved as an expert under this chapter gained access
2094 through employment or engagement as an appraiser by a governmental agency;
2095 (k) accepting a contingent fee for performing an appraisal [
2096
2097 (i) the appraiser reporting a predetermined analysis, opinion, or conclusion;
2098 (ii) the analysis, opinion, conclusion, or valuation reached; or
2099 (iii) the consequences resulting from the appraisal assignment;
2100 (l) unprofessional conduct as defined by statute or rule;
2101 (m) in the case of a dual licensed title licensee as defined in Section 31A-2-402 :
2102 (i) providing a title insurance product or service without the approval required by
2103 Section 31A-2-405 ; or
2104 (ii) knowingly providing false or misleading information in the statement required by
2105 Subsection 31A-2-405 (2); or
2106 (n) other conduct that constitutes dishonest dealing.
2107 Section 38. Section 61-2b-30.5 is amended to read:
2108 61-2b-30.5. Reinstatement of license, certification, registration, approval --
2109 Expert witness -- Trainee.
2110 (1) An individual [
2111 is revoked under this chapter:
2112 (a) may not apply for renewal of that license, certification, registration, or approval;
2113 and
2114 (b) may apply for licensure, certification, registration, or approval as prescribed for an
2115 original license [
2116 Subsection (2).
2117 (2) An applicant for licensure, certification, registration, or approval as an expert
2118 witness under Subsection (1):
2119 (a) may not apply for licensure, certification, registration, or approval until at least five
2120 years after the date of revocation of the applicant's original license, certification, registration, or
2121 approval; and
2122 (b) is not entitled to credit for experience gained prior to the date of revocation in
2123 determining whether the applicant meets the experience requirement for licensure, certification,
2124 registration, or approval.
2125 (3) A person whose license or certification is revoked may not act as a trainee until at
2126 least four years after the day on which the person's license or certification is revoked.
2127 Section 39. Section 61-2b-32 is amended to read:
2128 61-2b-32. Registration, licensure, or certification prerequisite to suit for
2129 compensation.
2130 [
2131 the capacity of a real estate appraiser in this state may not bring or maintain [
2132
2133 estate appraisal services for which registration, licensure, or certification is required by this
2134 chapter without alleging and proving that [
2135 license, or certification in this state at all times during the performance of [
2136 appraisal services.
2137 Section 40. Section 61-2b-33 is amended to read:
2138 61-2b-33. Penalty for violating this chapter -- Automatic revocation.
2139 (1) In addition to being subject to a disciplinary action by the board, a person required
2140 to be licensed, certified, or registered under this chapter who violates this chapter:
2141 (a) is guilty of a class A misdemeanor, upon a conviction of a first violation of this
2142 chapter; and
2143 (b) is guilty of a third degree felony, upon conviction of a second or subsequent
2144 violation of this chapter.
2145 (2) A license [
2146 convicted of a violation of Section 76-6-1203 is automatically revoked.
2147 Section 41. Section 61-2b-36 is amended to read:
2148 61-2b-36. Contingent fees.
2149 (1) A person licensed or certified under this chapter who enters into an agreement to
2150 perform an appraisal [
2151 (2) A person licensed or certified under this chapter who enters into an agreement to
2152 provide consultation services [
2153 fixed fee or a contingent fee.
2154 (3) (a) If a person licensed or certified under this chapter enters into an agreement to
2155 perform consultation services for a contingent fee, this fact shall be clearly stated in each oral
2156 statement.
2157 (b) In addition to the requirements of Subsection (3)(a), if a person licensed or certified
2158 under this chapter prepares a written consultation report or summary, letter of transmittal, or
2159 certification statement for a contingent fee, the person shall clearly state in the report,
2160 summary, letter of transmittal, or certification statement that the report is prepared under a
2161 contingent fee arrangement.
2162 Section 42. Section 61-2b-39 is amended to read:
2163 61-2b-39. Registration, licensure, or certification history.
2164 The division may, upon payment of a fee [
2165 the division in accordance with Section 63J-1-504 , issue to [
2166 history of:
2167 (1) [
2168 (2) [
2169 Section 43. Section 61-2b-40 is amended to read:
2170 61-2b-40. Continuing education requirements.
2171 (1) As a prerequisite to renewal of a license [
2172 applicant for renewal shall present evidence satisfactory to the division of having met the
2173 continuing education requirements of this section.
2174 (2) [
2175
2176
2177 the filing of an application for renewal[
2178 courses or seminars that have received the approval of the [
2179 (3) The division may adopt rules for the implementation of this section to assure that
2180 each person renewing that person's license [
2181 has a working knowledge of current real estate appraisal theories, practices, and techniques that
2182 will enable the person to provide competent real estate appraisal services to the members of the
2183 public with whom that person deals in a professional relationship under the authority of that
2184 person's license [
2185 (4) An amendment or repeal of a rule adopted by the division under this section [
2186 does not operate to deprive a person of credit toward renewal of that person's license [
2187 certification, or registration for [
2188 the applicant [
2189 (5) In lieu of meeting the requirements set forth in Subsection (2) and applicable rules,
2190 an applicant for renewal may satisfy all or part of the continuing education requirements that
2191 are imposed by the board in excess of the minimum requirements of the Appraisal
2192 Qualification Board by presenting evidence of the following:
2193 (a) completion of an educational program of study determined by the board to be
2194 equivalent, for continuing education purposes, to courses or seminars approved by the board; or
2195 (b) participation other than as a student in educational processes and programs
2196 approved by the board that relate to real property appraisal theory, practices, or techniques
2197 including teaching, program development, and preparation of textbooks, monographs, articles,
2198 and other instructional materials.
2199 (6) The board shall develop and propose to the division rules [
2200
2201
2202
2203
2204
2205 and proposed by the board under this Subsection (6) shall prescribe:
2206 (a) policies and procedures to be followed in obtaining [
2207 courses of instruction and seminars;
2208 (b) standards, policies, and procedures to be used by the division in evaluating an
2209 applicant's claims of equivalency; and
2210 (c) standards, monitoring methods, and systems for recording attendance to be
2211 employed by course and seminar sponsors as a prerequisite to division approval of courses and
2212 seminars for credit.
2213 (7) (a) A person whose license [
2214 or suspended as the result of a disciplinary action taken by the board may not apply for
2215 reinstatement unless the person presents evidence of completion of the continuing education
2216 requirement that is [
2217 (b) The continuing education required under Subsection (7)(a) [
2218 imposed upon an applicant for reinstatement who has been required by the division to
2219 successfully complete the examination for licensure or certification required by Section
2220 61-2b-20 as a condition to reinstatement.
2221 Section 44. Section 61-2c-102 is amended to read:
2222 61-2c-102. Definitions.
2223 (1) As used in this chapter:
2224 [
2225
2226
2227 (a) "Affiliation" means that a mortgaged loan originator is associated with a principal
2228 lending manager in accordance with Section 61-2c-209 .
2229 (b) "Applicant" means a person applying for a license under this chapter.
2230 (c) "Approved examination provider" means a person approved by the nationwide
2231 database as an approved test provider.
2232 (d) "Associate lending manager" means an individual who:
2233 (i) qualifies under this chapter as a principal lending manager; and
2234 (ii) works by or on behalf of another principal lending manager in transacting the
2235 business of residential mortgage loans.
2236 (e) "Branch office" means a licensed entity's office:
2237 (i) for the transaction of the business of residential mortgage loans regulated under this
2238 chapter;
2239 (ii) other than the main office of the licensed entity; and
2240 (iii) that operates under the same business name as the licensed entity.
2241 (f) (i) "Business of residential mortgage loans" means for compensation or in the
2242 expectation of compensation to:
2243 (A) engage in an act that makes an individual a mortgage loan originator;
2244 (B) make or originate a residential mortgage loan;
2245 (C) directly or indirectly solicit a residential mortgage loan for another; or
2246 (D) unless excluded under Subsection (1)(f)(ii), render services related to the
2247 origination of a residential mortgage loan including:
2248 (I) preparing a loan package;
2249 (II) communicating with the borrower and lender; or
2250 (III) advising on a loan term.
2251 (ii) "Business of residential mortgage loans" does not include:
2252 (A) if working as an employee under the direction of and subject to the supervision and
2253 instruction of a person licensed under this chapter, the performance of a clerical or support duty
2254 such as:
2255 (I) the receipt, collection, or distribution of information common for the processing or
2256 underwriting of a loan in the mortgage industry other than taking an application;
2257 (II) communicating with a consumer to obtain information necessary for the processing
2258 or underwriting of a residential mortgage loan;
2259 (III) word processing;
2260 (IV) sending correspondence; or
2261 (V) assembling files;
2262 (B) ownership of an entity that engages in the business of residential mortgage loans if
2263 the owner does not personally perform the acts listed in Subsection (1)(f)(i); or
2264 (C) except if an individual will engage in an activity as a loan mortgage originator,
2265 acting in one or more of the following capacities:
2266 (I) a loan wholesaler;
2267 (II) an account executive for a loan wholesaler;
2268 (III) a loan underwriter;
2269 (IV) a loan closer; or
2270 (V) funding a loan.
2271 (g) "Certified education provider" means a person who is certified under Section
2272 61-2c-204.1 to provide one or more of the following:
2273 (i) Utah-specific prelicensing education; or
2274 (ii) Utah-specific continuing education.
2275 (h) "Closed-end" means a loan:
2276 (i) with a fixed amount borrowed; and
2277 (ii) that does not permit additional borrowing secured by the same collateral.
2278 (i) "Commission" means the Residential Mortgage Regulatory Commission created in
2279 Section 61-2c-104 .
2280 (j) "Compensation" means anything of economic value that is paid, loaned, granted,
2281 given, donated, or transferred to an individual or entity for or in consideration of:
2282 (i) services;
2283 (ii) personal or real property; or
2284 (iii) another thing of value.
2285 (k) "Concurrence" means that entities given a concurring rule must jointly agree for the
2286 action to be taken.
2287 [
2288 this chapter in order to meet the education requirements imposed by Sections 61-2c-204.1 and
2289 61-2c-205 to renew a license under this chapter.
2290 [
2291 directly or indirectly:
2292 (i) direct or exercise a controlling interest over:
2293 (A) the management or policies of an entity; or
2294 (B) the election of a majority of the directors, officers, managers, or managing partners
2295 of an entity;
2296 (ii) vote 20% or more of a class of voting securities of an entity by an individual; or
2297 (iii) vote more than 5% of a class of voting securities of an entity by another entity.
2298 (n) (i) "Control person" means an individual identified by an entity registered with the
2299 nationwide database as being the individual primarily responsible for directing the management
2300 or policies of the entity.
2301 (ii) "Control person" may include one of the following who is identified as provided in
2302 Subsection (1)(n)(i):
2303 (A) a manager;
2304 (B) a managing partner;
2305 (C) a director;
2306 (D) an executive officer; or
2307 (E) an individual who performs a function similar to an individual listed in this
2308 Subsection (1)(n)(ii).
2309 [
2310 [
2311 [
2312 [
2313 one to four units including any of the following if used as a residence:
2314 (i) a condominium unit;
2315 (ii) a cooperative unit;
2316 (iii) a manufactured home; or
2317 (iv) a house.
2318 [
2319 (i) a corporation;
2320 (ii) a limited liability company;
2321 (iii) a partnership;
2322 (iv) a company;
2323 (v) an association;
2324 (vi) a joint venture;
2325 (vii) a business trust;
2326 (viii) a trust; or
2327 (ix) another organization.
2328 [
2329 Commerce.
2330 (u) "Federal licensing requirements" means Secure and Fair Enforcement for Mortgage
2331 Licensing, 12 U.S.C. Sec. 5101, et seq.
2332 [
2333 placed when the holder of the license is not currently engaging in the business of residential
2334 mortgage loans.
2335 [
2336 [
2337 61-2c-204.1 or 61-2c-206 for an individual to obtain a license under this chapter.
2338 [
2339 means an individual who for compensation or in expectation of compensation:
2340 (A) (I) takes a residential mortgage loan application; or
2341 [
2342 (B) is licensed as a mortgage loan originator in accordance with this chapter.
2343 (ii) "[
2344 (A) is described in Subsection (1)[
2345 administrative or clerical tasks as described in Subsection (1)(f)(ii)(A);
2346 [
2347
2348 [
2349 [
2350 (B) (I) is licensed under Chapter 2f, Real Estate Licensing and Practices Act;
2351 (II) performs only real estate brokerage activities; and
2352 (III) receives no compensation from:
2353 (Aa) a lender;
2354 (Bb) a principal lending manager; or
2355 (Cc) an agent of a lender or principal lending manager; or
2356 (C) is solely involved in extension of credit relating to a timeshare plan, as defined in
2357 11 U.S.C. Sec. 101(53D).
2358 [
2359
2360 [
2361 Registry, authorized under [
2362
2363 [
2364 30-year fixed rate mortgage.
2365 [
2366 [
2367 be licensed under this chapter in order to meet the education requirements imposed by Section
2368 61-2c-204.1 or 61-2c-206 for an individual to obtain a license under this chapter.
2369 [
2370 lending manager under Section 61-2c-206 to transact the business of residential mortgage
2371 loans.
2372 (ii) An individual [
2373 business of residential mortgage loans as a mortgage [
2374 [
2375 (i) prepared, owned, received, or retained by a person; and
2376 (ii) (A) inscribed on a tangible medium; or
2377 (B) (I) stored in an electronic or other medium; and
2378 (II) [
2379 [
2380 (i) the loan or extension of credit is secured by a:
2381 (A) mortgage;
2382 (B) deed of trust; or
2383 (C) consensual security interest;
2384 (ii) the mortgage, deed of trust, or consensual security interest described in Subsection
2385 (1)[
2386 (A) is on a dwelling located in the state; and
2387 (B) is created with the consent of the owner of the residential real property; and
2388 (iii) solely for the purposes of defining "mortgage loan originator," the extension of
2389 credit is primarily for personal, family, or household use.
2390 (gg) "Sponsorship" means an association in accordance with Section 61-2c-209
2391 between an individual licensed under this chapter and an entity licensed under this chapter.
2392 [
2393 (i) a state, territory, or possession of the United States;
2394 (ii) the District of Columbia; or
2395 (iii) the Commonwealth of Puerto Rico.
2396 [
2397 (jj) "Utah-specific" means an educational or examination requirement under this
2398 chapter that relates specifically to Utah.
2399 (2) (a) If a term not defined in this section is defined by rule, the term shall have the
2400 meaning established by the division by rule made in accordance with Title 63G, Chapter 3,
2401 Utah Administrative Rulemaking Act.
2402 (b) If a term not defined in this section is not defined by rule, the term shall have the
2403 meaning commonly accepted in the business community.
2404 Section 45. Section 61-2c-103 is amended to read:
2405 61-2c-103. Powers and duties of the division.
2406 (1) The division shall administer this chapter.
2407 (2) In addition to a power or duty expressly provided in this chapter, the division may:
2408 (a) receive and act on a complaint including:
2409 (i) taking action designed to obtain voluntary compliance with this chapter; or
2410 (ii) commencing an administrative or judicial proceeding on the division's own
2411 initiative;
2412 (b) establish one or more programs for the education of consumers with respect to
2413 residential mortgage loans;
2414 (c) (i) make one or more studies appropriate to effectuate the purposes and policies of
2415 this chapter; and
2416 (ii) make the results of the studies described in Subsection (2)(c)(i) available to the
2417 public;
2418 (d) visit and investigate a person licensed under this chapter, regardless of whether the
2419 person is located in Utah; and
2420 (e) employ one or more necessary hearing examiners, investigators, clerks, and other
2421 employees and agents.
2422 (3) The division shall make rules for the administration of this chapter in accordance
2423 with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, including:
2424 (a) licensure procedures for:
2425 (i) a person required by this chapter to obtain a license with the division; and
2426 (ii) the establishment of a branch office by an entity;
2427 (b) proper handling of [
2428 (c) record-keeping requirements by a licensee, including proper disposal of a record;
2429 (d) certification procedures for certifying an education provider; and
2430 (e) standards of conduct for a licensee or certified education provider.
2431 (4) The division may by rule made in accordance with Title 63G, Chapter 3, Utah
2432 Administrative Rulemaking Act, require as a condition of maintaining a license or certification
2433 under this chapter that a person comply with a requirement of the nationwide database if:
2434 (a) required for uniformity amongst states; and
2435 (b) not inconsistent with this chapter.
2436 (5) The division shall by rule made in accordance with Title 63G, Chapter 3, Utah
2437 Administrative Rulemaking Act, provide a process under which an individual may challenge
2438 information contained in the nationwide database.
2439 [
2440
2441 [
2442 [
2443 [
2444 (a) review the requirements related to the nationwide database imposed by federal
2445 [
2446 (i) the division;
2447 (ii) a licensee under this chapter;
2448 (iii) a certified education provider; or
2449 (iv) an approved examination provider; and
2450 (b) after the review required by Subsection [
2451 (i) report to the Business and Labor Interim Committee the impact of the requirements
2452 on the implementation by the division of this chapter; and
2453 (ii) recommend legislation, if any, to the Business and Labor Interim Committee
2454 related to how the division should coordinate with the nationwide database.
2455 [
2456 database or another entity designated by the nationwide database to do the following related to
2457 a licensee or other person subject to this chapter:
2458 (a) collect or maintain a record; and
2459 (b) process a transaction fee or other fee.
2460 [
2461 (a) a violation of this chapter;
2462 (b) disciplinary action under this chapter; and
2463 (c) other information relevant to this chapter.
2464 (9) If a person pays a fee or costs to the division with a negotiable instrument and the
2465 negotiable instrument is not honored for payment:
2466 (a) the transaction for which the payment is submitted is voidable by the division;
2467 (b) the division may reverse the transaction if payment of the applicable fee or costs is
2468 not received in full; and
2469 (c) the person's license, certification, or registration is automatically suspended:
2470 (i) beginning the day on which the payment is due; and
2471 (ii) ending the day on which payment is made in full.
2472 Section 46. Section 61-2c-104 is amended to read:
2473 61-2c-104. Residential Mortgage Regulatory Commission.
2474 (1) (a) There is created within the division the "Residential Mortgage Regulatory
2475 Commission" consisting of the following members appointed by the executive director with the
2476 approval of the governor:
2477 (i) four members who:
2478 (A) have at least three years of experience in transacting the business of residential
2479 mortgage loans; and
2480 (B) are licensed under this chapter at the time of and during appointment; and
2481 (ii) one member from the general public.
2482 (b) (i) The executive director with the approval of the governor may appoint an
2483 alternate member to the board.
2484 (ii) The alternate member shall:
2485 (A) at the time of the appointment, have at least three years of experience in transacting
2486 the business of residential mortgage loans; and
2487 (B) be licensed under this chapter at the time of and during appointment.
2488 (2) (a) Except as required by Subsection (2)(b), the executive director shall appoint a
2489 new member or reappointed member subject to appointment by the executive director to a
2490 four-year term ending June 30.
2491 (b) Notwithstanding the requirements of Subsection (2)(a), the executive director shall,
2492 at the time of appointment or reappointment, adjust the length of terms to ensure that the terms
2493 of commission members are staggered so that approximately half of the commission is
2494 appointed every two years.
2495 (c) If a vacancy occurs in the membership of the commission for any reason, the
2496 executive director shall appoint a replacement for the unexpired term.
2497 (d) A member shall remain on the commission until the member's successor is
2498 appointed and qualified.
2499 (3) Members of the commission shall annually select one member to serve as chair.
2500 (4) (a) The commission shall meet at least quarterly.
2501 (b) The director may call a meeting in addition to the meetings required by Subsection
2502 (4)(a):
2503 (i) at the discretion of the director;
2504 (ii) at the request of the chair of the commission; or
2505 (iii) at the written request of three or more commission members.
2506 (5) (a) Three members of the commission constitute a quorum for the transaction of
2507 business.
2508 (b) If a quorum of members is unavailable for any meeting and an alternate member is
2509 appointed to the commission by the executive director with the approval of the governor, the
2510 alternate member shall serve as a regular member of the commission for that meeting if with
2511 the presence of the alternate member there is a quorum present at the meeting.
2512 (c) The action of a majority of a quorum present is an action of the commission.
2513 (6) (a) (i) A member who is not a government employee may not receive compensation
2514 or benefits for the member's services, but may receive per diem and expenses incurred in the
2515 performance of the member's official duties at the rates established by the Division of Finance
2516 under Sections 63A-3-106 and 63A-3-107 .
2517 (ii) A member who is not a government employee may decline to receive per diem and
2518 expenses for the member's service.
2519 (b) (i) A state government officer and employee member who does not receive salary,
2520 per diem, or expenses from the member's agency for the member's service may receive per
2521 diem and expenses incurred in the performance of the member's official duties from the
2522 commission at the rates established by the Division of Finance under Sections 63A-3-106 and
2523 63A-3-107 .
2524 (ii) A state government officer and employee member may decline to receive per diem
2525 and expenses for the member's service.
2526 (7) In addition to a duty or power expressly provided for elsewhere in this chapter, the
2527 commission shall:
2528 (a) except as provided in Subsection 61-2c-202 [
2529 denial of licensure of a person under this chapter in accordance with Part 2, Licensure;
2530 (b) take disciplinary action with the concurrence of the director in accordance with Part
2531 4, Enforcement; and
2532 (c) advise the division concerning matters related to the administration and
2533 enforcement of this chapter.
2534 Section 47. Section 61-2c-105 is amended to read:
2535 61-2c-105. Scope of chapter -- Exemptions.
2536 (1) (a) Except as to an individual who will engage in an activity as a mortgage loan
2537 originator, this chapter applies to a closed-end residential mortgage loan secured by a first lien
2538 or equivalent security interest on a dwelling.
2539 (b) This chapter does not apply to a transaction covered by Title 70C, Utah Consumer
2540 Credit Code.
2541 (2) The following are exempt from this chapter:
2542 (a) the federal government;
2543 (b) a state;
2544 (c) a political subdivision of a state;
2545 (d) an agency of or entity created by a governmental entity described in Subsections
2546 (2)(a) through (c) including:
2547 (i) the Utah Housing Corporation created in Title 9, Chapter 4, Part 9, Utah Housing
2548 Corporation Act;
2549 (ii) the Federal National Mortgage Corporation;
2550 (iii) the Federal Home Loan Mortgage Corporation;
2551 (iv) the Federal Deposit Insurance Corporation;
2552 (v) the Resolution Trust Corporation;
2553 (vi) the Government National Mortgage Association;
2554 (vii) the Federal Housing Administration;
2555 (viii) the National Credit Union Administration;
2556 (ix) the Farmers Home Administration; and
2557 (x) the United States Department of Veterans Affairs;
2558 (e) a depository institution;
2559 (f) an [
2560 with a depository institution;
2561 (g) an employee or agent of an entity described in Subsections (2)(a) through (f):
2562 (i) when that person acts on behalf of the entity described in Subsections (2)(a) through
2563 (f); and
2564 (ii) including an employee of:
2565 (A) a depository institution;
2566 (B) a subsidiary of a depository institution that is:
2567 (I) owned and controlled by the depository institution; and
2568 (II) regulated by a federal banking agency, as defined in 12 U.S.C. Sec. 5102; or
2569 (C) an institution regulated by the Farm Credit Administration;
2570 (h) except as provided in Subsection (3), a person who:
2571 (i) makes a loan:
2572 (A) secured by an interest in real property;
2573 (B) with the person's own money; and
2574 (C) for the person's own investment; and
2575 (ii) that does not engage in the business of making loans secured by an interest in real
2576 property;
2577 (i) except as provided in Subsection (3), a person who receives a mortgage, deed of
2578 trust, or consensual security interest on real property if the individual or entity:
2579 (i) is the seller of real property; and
2580 (ii) receives the mortgage, deed of trust, or consensual security interest on real property
2581 as security for a separate money obligation;
2582 (j) a person who receives a mortgage, deed of trust, or consensual security interest on
2583 real property if:
2584 (i) the person receives the mortgage, deed of trust, or consensual security interest as
2585 security for an obligation payable on an installment or deferred payment basis;
2586 (ii) the obligation described in Subsection (2)(j)(i) arises from a person providing
2587 materials or services used in the improvement of the real property that is the subject of the
2588 mortgage, deed of trust, or consensual security interest; and
2589 (iii) the mortgage, deed of trust, or consensual security interest is created without the
2590 consent of the owner of the real property that is the subject of the mortgage, deed of trust, or
2591 consensual security interest;
2592 (k) a nonprofit corporation that:
2593 (i) is exempt from paying federal income taxes;
2594 (ii) is certified by the United States Small Business Administration as a small business
2595 investment company;
2596 (iii) is organized to promote economic development in this state; and
2597 (iv) has as its primary activity providing financing for business expansion;
2598 (l) except as provided in Subsection (3), a court appointed fiduciary; or
2599 (m) an attorney admitted to practice law in this state:
2600 (i) if the attorney is not principally engaged in the business of negotiating residential
2601 mortgage loans; and
2602 (ii) when the attorney renders services in the course of the attorney's practice as an
2603 attorney.
2604 (3) An individual who will engage in an activity as a mortgage loan originator is
2605 exempt from this chapter only if the individual is an employee or agent exempt under
2606 Subsection (2)(g).
2607 (4) (a) Notwithstanding Subsection (2)(m), an attorney exempt from this chapter may
2608 not engage in conduct described in Section 61-2c-301 when transacting business of residential
2609 mortgage loans.
2610 (b) If an attorney exempt from this chapter violates Subsection (4)(a), the attorney:
2611 (i) is not subject to enforcement by the division under Part 4, Enforcement; and
2612 (ii) is subject to disciplinary action generally applicable to an attorney admitted to
2613 practice law in this state.
2614 (c) If the division receives a complaint alleging an attorney exempt from this chapter is
2615 in violation of Subsection (4)(a), the division shall forward the complaint to the Utah State Bar
2616 for disciplinary action.
2617 (5) (a) An individual who is exempt under Subsection (2) or (3) may voluntarily obtain
2618 a license under this chapter by complying with Part 2, Licensure.
2619 (b) An individual who voluntarily obtains a license pursuant to this Subsection (5)
2620 shall comply with all the provisions of this chapter.
2621 Section 48. Section 61-2c-106 is amended to read:
2622 61-2c-106. Addresses provided the division.
2623 (1) (a) [
2624 provide a physical location or street address when the person provides the nationwide database
2625 an address required by the division.
2626 (b) The following when provided under this chapter is public information:
2627 (i) a business address; or
2628 (ii) a mailing address.
2629 (2) A licensee is considered to have received a notification that is mailed to the last
2630 mailing address furnished to the [
2631 (a) if the licensee is an individual, the individual; or
2632 (b) if the licensee is an entity, the principal lending manager of the entity.
2633 Section 49. Section 61-2c-201 is amended to read:
2634 61-2c-201. Licensure required of person engaged in the business of residential
2635 mortgage loans -- Mortgage loan originator -- Principal lending manager.
2636 (1) Unless exempt from this chapter under Section 61-2c-105 , a person may not
2637 transact the business of residential mortgage loans without obtaining a license under this
2638 chapter.
2639 (2) For purposes of this chapter, a person transacts business in this state if:
2640 (a) (i) the person engages in an act that constitutes the business of residential mortgage
2641 loans; and
2642 (ii) (A) the act described in Subsection (2)(a)(i) is directed to or received in this state;
2643 and
2644 (B) the real property that is the subject of the act described in Subsection (2)(a)(i) is
2645 located in this state; or
2646 (b) a representation is made by the person that the person transacts the business of
2647 residential mortgage loans in this state.
2648 (3) An individual who has an ownership interest in an entity required to be licensed
2649 under this chapter is not required to obtain an individual license under this chapter unless the
2650 individual transacts the business of residential mortgage loans.
2651 (4) Unless otherwise exempted under this chapter, licensure under this chapter is
2652 required of both:
2653 (a) the individual who directly transacts the business of residential mortgage loans; and
2654 (b) if the individual transacts business as an employee or agent of an entity or
2655 individual, the entity or individual for whom the employee or agent transacts the business of
2656 residential mortgage loans.
2657 [
2658
2659 [
2660 [
2661
2662 [
2663
2664 [
2665 [
2666 [
2667
2668 [
2669 [
2670 [
2671
2672
2673 [
2674 [
2675 [
2676
2677 [
2678 business of residential mortgage loans transacts the business of residential mortgage loans
2679 under an assumed business name, the entity shall in accordance with rules made by the
2680 division:
2681 (i) register the assumed name [
2682 (ii) furnish [
2683 Division of Corporations and Commercial Code pursuant to Title 42, Chapter 2, Conducting
2684 Business Under Assumed Name.
2685 (b) The division may charge a fee established in accordance with Section 63J-1-504 for
2686 registering an assumed name pursuant to this Subsection [
2687 [
2688
2689 Section 50. Section 61-2c-202 is amended to read:
2690 61-2c-202. Licensure procedures.
2691 (1) To apply for licensure under this chapter an applicant shall in a manner provided by
2692 the division by rule:
2693 (a) if the applicant is an entity, submit [
2694 (i) lists any name under which the [
2695 (ii) lists the address of the principal business location of the [
2696 [
2697 [
2698 [
2699 [
2700
2701 [
2702 [
2703
2704 [
2705
2706 (v) identifies the one or more control persons for the entity;
2707 (vi) identifies the jurisdictions in which the entity is registered, licensed, or otherwise
2708 regulated in the business of residential mortgage loans;
2709 (vii) discloses any adverse administrative action taken by an administrative agency
2710 against:
2711 (A) the entity; or
2712 (B) any control person for the entity;
2713 (viii) discloses any history of criminal proceedings involving any control person for the
2714 entity; and
2715 [
2716 (b) if the applicant is an individual[
2717 [
2718 [
2719 [
2720 (i) submit a licensure statement that identifies the entity with which the applicant is
2721 sponsored;
2722 (ii) authorize a criminal background check through the nationwide database accessing:
2723 (A) the Utah Bureau of Criminal Identification, if the nationwide database is able to
2724 obtain information from the Utah Bureau of Criminal Identification; and
2725 [
2726 [
2727 successfully completed approved prelicensing education in accordance with Section
2728 61-2c-204.1 ;
2729 [
2730 successfully passed [
2731 61-2c-204.1 ; and
2732 [
2733 [
2734 [
2735
2736 [
2737 [
2738 [
2739 [
2740 [
2741
2742 [
2743
2744 [
2745
2746 (v) submit evidence using a method approved by the division by rule of having
2747 successfully registered in the nationwide database, including paying a fee required by the
2748 nationwide database; and
2749 (c) pay to the division:
2750 (i) an application fee established by the division in accordance with Section 63J-1-504 ;
2751 and
2752 (ii) the reasonable expenses incurred by the division in processing the application for
2753 licensure[
2754 [
2755
2756 [
2757 [
2758 (2) (a) Upon receiving an application, the division, with the concurrence of the
2759 commission, shall determine whether the applicant:
2760 (i) meets the qualifications for licensure; and
2761 (ii) complies with this section.
2762 (b) If the division, with the concurrence of the commission, determines that an
2763 applicant meets the qualifications for licensure and complies with this section, the division
2764 shall issue the applicant a license.
2765 (c) If the division, with the concurrence of the commission, determines that the
2766 division requires more information to make a determination under Subsection (2)(a), the
2767 division may:
2768 (i) hold the application pending further information about an applicant's criminal
2769 background or history related to adverse administrative action in any jurisdiction; or
2770 (ii) issue a conditional license:
2771 (A) pending the completion of a criminal background check; and
2772 (B) subject to suspension or revocation if the criminal background check reveals that
2773 the applicant did not truthfully or accurately disclose on the licensing application a criminal
2774 history or other history related to adverse administrative action.
2775 [
2776 (i) review a class or category of application for an initial or renewed license;
2777 (ii) determine whether an applicant meets the [
2778
2779 (iii) conduct a necessary hearing on an application; and
2780 (iv) approve or deny a license application without concurrence by the commission.
2781 [
2782 application without concurrence by the commission and the division denies an application for
2783 licensure, the applicant who is denied licensure may petition the commission for review of the
2784 denial.
2785 [
2786 agency review by the executive director only after the commission reviews the division's denial
2787 of the applicant's application.
2788 [
2789 4, Administrative Procedures Act, an applicant who is denied licensure under this chapter may
2790 submit a request for agency review to the executive director within 30 days following the day
2791 on which the commission order denying the licensure is issued.
2792 [
2793 [
2794
2795 [
2796
2797 [
2798 [
2799 [
2800 [
2801
2802 Section 51. Section 61-2c-203 is amended to read:
2803 61-2c-203. General qualifications for licensure.
2804 (1) To qualify for licensure under this chapter, [
2805 demonstrate through procedures established by rule made by the division in accordance with
2806 Title 63G, Chapter 3, Utah Administrative Rulemaking Act:
2807 [
2808 [
2809 [
2810 [
2811 including general fitness such as to command the confidence of the community and to warrant
2812 a determination that the [
2813 the purposes of this chapter[
2814 [
2815 (2) If an applicant is an individual, the applicant may not have:
2816 (a) been convicted of, pled guilty to, pled no contest to, pled guilty in a similar manner
2817 to, or resolved by diversion or its equivalent:
2818 (i) a felony involving an act of fraud, dishonesty, a breach of trust, or money
2819 laundering; or
2820 (ii) a felony in the seven years preceding the day on which an application is submitted
2821 to the division;
2822 [
2823
2824 [
2825 [
2826
2827 [
2828 division, been convicted of, pled guilty to, pled no contest to, pled guilty in a similar manner
2829 to, or resolved by diversion its equivalent:
2830 [
2831 [
2832 misdemeanor involving moral turpitude;
2833 (c) [
2834 license as a mortgage loan originator revoked by a governmental jurisdiction at any time;
2835 (d) [
2836 suspended, [
2837 individual applies for licensure if:
2838 (i) the registration or license is issued by this state or another jurisdiction; and
2839 (ii) the suspension, [
2840 based on misconduct in a professional capacity that relates to moral character, honesty,
2841 integrity, truthfulness, or the competency to transact the business of residential mortgage loans;
2842 (e) [
2843 the Securities and Exchange Commission, the New York Stock Exchange, or the National
2844 Association of Securities Dealers within the five years preceding the date the individual applies
2845 for registration; [
2846 (f) [
2847 individual:
2848 (i) by a court or [
2849 (ii) on the basis of:
2850 (A) conduct or a practice involving the business of residential mortgage loans; or
2851 (B) conduct involving fraud, misrepresentation, or deceit.
2852 [
2853 [
2854 (3) If an applicant is an entity, the applicant may not have a control person who fails to
2855 meet the requirements of Subsection [
2856
2857 [
2858 [
2859 [
2860 [
2861
2862 [
2863
2864 [
2865
2866
2867
2868 [
2869 [
2870 [
2871
2872 [
2873 [
2874 [
2875 [
2876 [
2877 [
2878
2879 Section 52. Section 61-2c-204.1 is amended to read:
2880 61-2c-204.1. Education providers -- Education requirements -- Examination
2881 requirements.
2882 (1) As used in this section:
2883 (a) "Approved continuing education course" means a course of continuing education
2884 that is approved by the nationwide database.
2885 (b) "Approved prelicensing education course" means a course of prelicensing education
2886 that is approved by the nationwide database.
2887 (2) (a) A person may not provide Utah-specific prelicensing education or Utah-specific
2888 continuing education if that person is not certified by the division under this chapter.
2889 (b) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the
2890 division shall make rules establishing:
2891 (i) certification criteria and procedures to become a certified education provider; and
2892 (ii) standards of conduct for a certified education provider.
2893 (c) In accordance with the rules described in Subsection (2)(b), the division shall
2894 certify a person to provide [
2895 Subsection (2)(a).
2896 [
2897 [
2898 (d) [
2899 names and addresses of certified education providers either directly or through a third party.
2900 (ii) A person who requests a list under this Subsection (2)(d) shall pay the costs
2901 incurred by the division to make the list available.
2902 (e) In certifying [
2903 may:
2904 (i) distinguish between an individual instructor and an entity that provides education;
2905 or
2906 (ii) approve:
2907 (A) Utah-specific prelicensing education; or
2908 (B) Utah-specific continuing education courses.
2909 (3) (a) The division may not:
2910 (i) license an individual under this chapter as a mortgage [
2911 has not completed the prelicensing education required by this section:
2912 (A) before taking the one or more licensing [
2913 Subsection (4); [
2914 (B) in the number of hours, not to exceed 90 hours, required by rule made by the
2915 division in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act[
2916
2917
2918
2919 [
2920 [
2921
2922 [
2923
2924 (C) that includes the prelicensing education required by federal licensing regulations;
2925 (ii) subject to Subsection (6), renew a license of an individual who has not completed
2926 the continuing education required by this section and Section 61-2c-205 [
2927 (A) in the number of hours required by rule made by the division in accordance with
2928 Title 63G, Chapter 3, Utah Administrative Rulemaking Act; and
2929 (B) that includes the continuing education required by federal licensing regulations; or
2930 (iii) [
2931 lending manager who has not completed the prelicensing education required by Section
2932 61-2c-206 before taking the licensing examination required by Section 61-2c-206 .
2933 (b) Subject to Subsection (3)(a) and with the concurrence of the division, the
2934 commission shall determine:
2935 (i) except as provided in Subsection 61-2c-206 (1)[
2936 hours of prelicensing education required to obtain a license;
2937 (ii) the subject matters of the prelicensing education required under this section and
2938 Section 61-2c-206 , including online education or distance learning options;
2939 (iii) the appropriate number of hours of continuing education required to renew a
2940 license[
2941
2942
2943 [
2944 [
2945
2946 [
2947
2948 (iv) the subject matter of courses the division may accept for continuing education
2949 purposes.
2950 (c) The commission may appoint a committee to make recommendations to the
2951 commission concerning approval of prelicensing education and continuing education courses,
2952 except that the commission shall appoint at least one member to the committee to represent
2953 each association that represents a significant number of individuals licensed under this chapter.
2954 (d) The division may by rule made in accordance with Title 63G, Chapter 3, Utah
2955 Administrative Rulemaking Act, provide for the calculation of continuing education credits,
2956 except that the rules shall be consistent with 12 U.S.C. Sec. 5105.
2957 (4) (a) The division may not license an individual under this chapter unless that
2958 individual first passes [
2959 (i) are adopted by the division in accordance with Title 63G, Chapter 3, Utah
2960 Administrative Rulemaking Act;
2961 (ii) meet the minimum federal licensing requirements; and
2962 (iii) are administered by an approved examination provider.
2963 (b) The commission, with the concurrence of the division, shall determine the
2964 requirements for:
2965 (i) a licensing examination that at least:
2966 [
2967 (A) meet the minimum federal licensing requirements; and
2968 (B) tests knowledge of the:
2969 (I) fundamentals of the English language;
2970 (II) arithmetic;
2971 (III) provisions of this chapter;
2972 (IV) rules adopted under this chapter;
2973 (V) basic residential mortgage principles and practices; and
2974 (VI) any other aspect of Utah law the commission determines is appropriate; and
2975 (ii) a licensing examination required under Section 61-2c-206 that:
2976 [
2977 (A) meets the requirements of Subsection (4)(b)(i); and
2978 (B) tests knowledge of the:
2979 (I) advanced residential mortgage principles and practices; and
2980 (II) other aspects of Utah law the commission, with the concurrence of the division,
2981 determines appropriate.
2982 (c) An individual who will engage in an activity as a mortgage loan originator, is not
2983 considered to have passed a licensing examination if that individual has not met the minimum
2984 competence requirements of 12 U.S.C. Sec. 5104(d)(3).
2985 (5) When reasonably practicable, the commission and the division shall make the
2986 [
2987 education requirements described in this section available electronically through one or more
2988 distance education methods approved by the commission and division.
2989 (6) (a) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act,
2990 the commission, with the concurrence of the division, shall make rules establishing procedures
2991 under which a licensee may be exempted from a Utah-specific continuing education
2992 [
2993 (i) for a period not to exceed four years; and
2994 (ii) upon a finding of reasonable cause.
2995 (b) An individual who engages in an activity as a mortgage loan originator may not
2996 under this Subsection (6) be exempted from the [
2997 education required under [
2998 who engages in an activity as a mortgage loan originator.
2999 Section 53. Section 61-2c-205 is amended to read:
3000 61-2c-205. Term of licensure -- Renewal -- Reporting of changes.
3001 (1) (a) A license issued under this chapter [
3002 (i) for the calendar year the license is issued:
3003 (A) if the license is issued on or before October 31, the license expires on December 31
3004 of the same calendar year; and
3005 (B) if the license is issued on or after November 1, the license expires on December 31
3006 of the following calendar year; and
3007 (ii) after the December 31 on which a license expires under Subsection (1)(a)(i), a
3008 license expires annually on December 31.
3009 (b) Notwithstanding Subsection (1)(a), the time period of a license may be extended or
3010 shortened by as much as one year to maintain or change a renewal cycle established by rule by
3011 the division.
3012 (2) To renew a license, no later than the date the license expires, a licensee shall in a
3013 manner provided by the division by rule:
3014 [
3015 (a) file a renewal statement;
3016 [
3017 (c) renew the licensee's registration with the nationwide database, including the
3018 payment of a fee required by the nationwide database;
3019 [
3020 63J-1-504 ; and
3021 [
3022 the time of application for renewal, submit proof [
3023 having completed during the year before application the continuing education required under
3024 Section 61-2c-204.1 .
3025 (3) (a) A licensee under this chapter shall notify the division [
3026
3027 which there is a change in:
3028 (i) a name under which the licensee transacts the business of residential mortgage loans
3029 in this state;
3030 (ii) (A) if the licensee is an entity, the business location of the licensee; or
3031 (B) if the licensee is an individual, the home and business addresses of the individual;
3032 (iii) the principal lending manager of the entity;
3033 (iv) the entity with which an individual licensee is licensed to conduct the business of
3034 residential mortgage loans; or
3035 (v) any other information that is defined as material by rule made by the division.
3036 (b) Failure to notify the division of a change described in Subsection (3)(a) is separate
3037 grounds for disciplinary action against a licensee.
3038 (c) The division may charge a fee established in accordance with Section 63J-1-504 for
3039 processing a change that a licensee is required to report to the division under Subsection (3)(a).
3040 (4) A licensee shall notify the division by sending the division a signed statement
3041 within 10 business days of:
3042 (a) (i) a conviction of a criminal offense;
3043 (ii) the entry of a plea in abeyance to a criminal offense; or
3044 (iii) the potential resolution of a criminal case by:
3045 (A) a diversion agreement; or
3046 (B) any other agreement under which a criminal charge is held in suspense for a period
3047 of time;
3048 (b) filing a personal bankruptcy or bankruptcy of a business that transacts the business
3049 of residential mortgage loans;
3050 (c) the suspension, revocation, surrender, cancellation, or denial of a professional
3051 license or professional registration of the licensee, whether the license or registration is issued
3052 by this state or another jurisdiction; or
3053 (d) the entry of a cease and desist order or a temporary or permanent injunction:
3054 (i) against the licensee by a court or licensing agency; and
3055 (ii) based on:
3056 (A) conduct or a practice involving the business of residential mortgage loans; or
3057 (B) conduct involving fraud, misrepresentation, or deceit.
3058 (5) (a) A license under this chapter expires if the licensee does not apply to renew the
3059 license on or before the expiration date of the license.
3060 (b) [
3061 expired may apply to reinstate the expired license, in a manner provided by the division by rule
3062 by:
3063 (i) requesting reinstatement;
3064 [
3065 under Section 63J-1-504 ; and
3066 [
3067
3068
3069 [
3070
3071
3072 [
3073
3074 [
3075
3076
3077 [
3078
3079
3080 [
3081
3082
3083 [
3084
3085 [
3086 [
3087 [
3088 [
3089 [
3090
3091 (iii) reinstating the licensee's registration with the nationwide database, including the
3092 payment of a fee required by the nationwide database.
3093 Section 54. Section 61-2c-205.1 is amended to read:
3094 61-2c-205.1. Transition to use of nationwide database.
3095 (1) An individual not required to be licensed under this chapter as in effect on
3096 December 31, 2010, who is required to be licensed under this chapter as in effect on January 1,
3097 2011, may not engage in the business of residential mortgage loans on or after January 1, 2011
3098 without holding a license under this chapter.
3099 (2) An individual who applies for a license under this chapter on or after January 1,
3100 2011, shall meet the requirements of this chapter as in effect on January 1, 2011.
3101 (3) (a) This Subsection (3) applies to a licensee who:
3102 (i) will engage in an activity as a mortgage loan originator on or after January 1, 2011;
3103 and
3104 (ii) holds an active license under this chapter on December 31, 2010.
3105 (b) A licensee shall comply with the requirements of this chapter as in effect on
3106 January 1, 2011, by no later than January 1, 2011, in order to hold an active license on or after
3107 January 1, 2011.
3108 (c) The license of a licensee that fails to comply with this section on or before January
3109 1, 2011 becomes inactive on January 1, 2011 until:
3110 (i) the day on which the licensee complies with the requirements of this chapter; or
3111 (ii) the license expires.
3112 (4) (a) A license of an individual who will engage in an activity as a mortgage loan
3113 originator that is inactive on December 31, 2010, terminates as of January 1, 2011 unless that
3114 licensee provides on or before January 1, 2011, evidence satisfactory to the division that the
3115 licensee has complied with the requirements for registration under the nationwide database.
3116 (b) The division may by rule, made in accordance with Title 63G, Chapter 3, Utah
3117 Administrative Rulemaking Act, [
3118 (i) the "requirements for registration under the nationwide database" described in
3119 Subsection (4)(a);
3120 (ii) the evidence required by this Subsection (4); and
3121 (iii) the procedure for submitting the evidence required by this Subsection (4).
3122 (5) The division may make rules in accordance with Title 63G, Chapter 3, Utah
3123 Administrative Rulemaking Act, providing a process:
3124 (a) that is consistent with this section to transition the licensing of individuals engaged
3125 in the business of residential mortgage loans to the license requirements under this chapter as
3126 in effect on January 1, 2011; or
3127 (b) to suspend a requirement for holding a license under this chapter that is related to
3128 the nationwide database if:
3129 (i) the suspension is related to changes made to [
3130
3131 January 1, 2009; and
3132 (ii) the suspension ends on or before December 31, 2011.
3133 (6) The division may report or provide recommendations to the Legislature regarding
3134 changes, if any, that could be made to this chapter in response to changes made to the
3135 nationwide database or under [
3136
3137 Section 55. Section 61-2c-206 is amended to read:
3138 61-2c-206. Principal lending manager licenses.
3139 (1) To qualify for licensure as a principal lending manager under this chapter, an
3140 individual shall[
3141 (a) meet the standards in Section 61-2c-203 [
3142 [
3143 [
3144 [
3145 (b) successfully complete the following education:
3146 (i) mortgage loan originator prelicensing education as required by federal licensing
3147 regulations; and
3148 (ii) 40 hours of Utah-specific prelicensing education for a principal lending manager
3149 that is approved by the [
3150 [
3151 (c) successfully complete the following examinations:
3152 (i) the mortgage loan originator licensing examination as approved by the nationwide
3153 database; and
3154 (ii) the principal lending manager licensing examination approved by the commission
3155 under Section 61-2c-204.1 ;
3156 [
3157 active experience as a mortgage [
3158 preceding the day on which the application is submitted[
3159
3160 (e) submit an application in a manner established by the division by rule;
3161 (f) establish sponsorship with an entity licensed under this chapter;
3162 [
3163 nationwide database as a mortgage loan originator at the time of application, submit to the
3164 criminal background check required by Subsection 61-2c-202 (1)(b)[
3165 (h) pay a fee determined by the division under Section 63J-1-504 .
3166 (2) A principal lending manager may not:
3167 (a) engage in the business of residential mortgage loans on behalf of more than one
3168 entity at the same time[
3169 (b) be sponsored by more than one entity at the same time.
3170 Section 56. Section 61-2c-209 is enacted to read:
3171 61-2c-209. Sponsorship -- Affiliation.
3172 (1) (a) The division may not license an individual, and an individual licensed under this
3173 chapter may not conduct the business of residential mortgage loans unless:
3174 (i) if licensed as a mortgage loan originator, the individual:
3175 (A) is sponsored by an entity licensed under this chapter; and
3176 (B) is affiliated with a principal lending manager; or
3177 (ii) if licensed as a principal lending manager, the individual is sponsored by an entity
3178 licensed under this chapter.
3179 (b) The division may not license any entity and an entity licensed under this chapter
3180 may not conduct the business of residential mortgage loans unless the entity:
3181 (i) sponsors a principal lending manager;
3182 (ii) identifies at least one control person for the entity; and
3183 (iii) provides a list of the mortgage loan originators sponsored by the entity.
3184 (2) (a) A mortgage loan originator's license automatically becomes inactive the day on
3185 which:
3186 (i) the mortgage loan originator is not sponsored by an entity licensed under this
3187 chapter;
3188 (ii) the license of the entity with which the mortgage loan originator is sponsored
3189 becomes inactive or terminates;
3190 (iii) the mortgage loan originator is not affiliated with a principal lending manager; or
3191 (iv) the license of the principal lending manager with whom the mortgage loan
3192 originator is affiliated becomes inactive or terminates.
3193 (b) A principal lending manager's license automatically becomes inactive the day on
3194 which:
3195 (i) the principal lending manager is not sponsored by an entity licensed under this
3196 chapter; or
3197 (ii) the license of the entity with which the principal lending manager is sponsored
3198 becomes inactive or terminates.
3199 (c) A entity licensed under this chapter automatically becomes inactive the day on
3200 which the entity's sponsorship with its principal lending manager terminates.
3201 (3) (a) A person whose license is inactive may not transact the business of residential
3202 mortgage loans.
3203 (b) To activate an inactive mortgage loan originator license, an individual shall:
3204 (i) provide evidence that the individual:
3205 (A) is sponsored by an entity that holds an active license under this chapter; and
3206 (B) is affiliated with a principal lending manager who holds an active license under this
3207 chapter; and
3208 (ii) pay a fee to the division set in accordance with Section 63J-1-504 .
3209 (c) To activate an inactive principal lending manager license, an individual shall:
3210 (i) provide evidence that the individual is sponsored by an entity that holds an active
3211 license under this chapter; and
3212 (ii) pay a fee to the division set in accordance with Section 63J-1-504 .
3213 (d) To activate an inactive license held by an entity, an entity shall:
3214 (i) provide evidence of the entity's sponsorship of a principal lending manager; and
3215 (ii) pay a fee to the division set in accordance with Section 63J-1-504 .
3216 (4) (a) A mortgage loan originator shall conduct the business of residential mortgage
3217 loans only:
3218 (i) through the principal lending manager with whom the individual is affiliated; and
3219 (ii) in the business name under which the principal lending manager is authorized by
3220 the division to do business.
3221 (b) An individual licensed under this chapter may not:
3222 (i) engage in the business of residential mortgage loans on behalf of more than one
3223 entity at the same time;
3224 (ii) be sponsored by more than one entity at the same time;
3225 (iii) transact the business of residential mortgage loans for the following at the same
3226 time:
3227 (A) an entity licensed under this chapter; and
3228 (B) an entity that is exempt from licensure under Section 61-2c-105 ; or
3229 (iv) if the individual is a mortgage loan originator, receive consideration for transacting
3230 the business of residential mortgage loans from any person except the principal lending
3231 manager with whom the mortgage loan originator is affiliated.
3232 (c) This Subsection (4) does not restrict the number of:
3233 (i) different lenders a person may use as a funding source for a residential mortgage
3234 loan; or
3235 (ii) entities in which an individual may have an ownership interest, regardless of
3236 whether the entities are:
3237 (A) licensed under this chapter; or
3238 (B) exempt under Section 61-2c-105 .
3239 (5) The division by rule made in accordance with Title 63G, Chapter 3, Utah
3240 Administrative Rulemaking Act, may make rules that:
3241 (a) define what constitutes:
3242 (i) affiliation; or
3243 (ii) sponsorship; and
3244 (b) provide procedures by which:
3245 (i) an individual who is licensed under this chapter may provide evidence of
3246 sponsorship by an entity that is licensed under this chapter;
3247 (ii) a mortgage loan originator may provide evidence of affiliation with a principal
3248 lending manager; and
3249 (iii) an entity licensed under this chapter may:
3250 (A) provide evidence of its sponsorship of a principal lending manager;
3251 (B) identify at least one control person for the entity; and
3252 (C) provide a list of the one or more mortgage loan originators that the entity sponsors.
3253 Section 57. Section 61-2c-301 is amended to read:
3254 61-2c-301. Prohibited conduct -- Violations of the chapter.
3255 (1) A person transacting the business of residential mortgage loans in this state may
3256 not:
3257 (a) give or receive compensation or anything of value in exchange for a referral of
3258 residential mortgage loan business;
3259 (b) charge a fee in connection with a residential mortgage loan transaction:
3260 (i) that is excessive; or
3261 (ii) if the person does not comply with Section 70D-2-305 ;
3262 (c) give or receive compensation or anything of value in exchange for a referral of
3263 settlement or loan closing services related to a residential mortgage loan transaction;
3264 (d) do any of the following to induce a lender to extend credit as part of a residential
3265 mortgage loan transaction:
3266 (i) make a false statement or representation;
3267 (ii) cause false documents to be generated; or
3268 (iii) knowingly permit false information to be submitted by any party;
3269 (e) give or receive compensation or anything of value, or withhold or threaten to
3270 withhold payment of an appraiser fee, to influence the independent judgment of an appraiser in
3271 reaching a value conclusion in a residential mortgage loan transaction, except that it is not a
3272 violation of this section for a licensee to withhold payment because of a bona fide dispute
3273 regarding a failure of the appraiser to comply with the licensing law or the Uniform Standards
3274 of Professional Appraisal Practice;
3275 (f) violate or not comply with:
3276 (i) this chapter;
3277 (ii) an order of the commission or division; or
3278 (iii) a rule made by the division;
3279 (g) fail to respond within the required time period to:
3280 (i) a notice or complaint of the division; or
3281 (ii) a request for information from the division;
3282 (h) make false representations to the division, including in a licensure statement;
3283 (i) for a residential mortgage loan transaction beginning on or after January 1, 2004,
3284 engage in the business of residential mortgage loans with respect to the transaction if the
3285 person also acts in any of the following capacities with respect to the same residential mortgage
3286 loan transaction:
3287 (i) appraiser;
3288 (ii) escrow agent;
3289 (iii) real estate agent;
3290 (iv) general contractor; or
3291 (v) title insurance [
3292 (j) order a title insurance report or hold a title insurance policy unless the person
3293 provides to the title insurer a copy of a valid, current license under this chapter;
3294 (k) engage in unprofessional conduct as defined by rule;
3295 (l) engage in an act or omission in transacting the business of residential mortgage
3296 loans that constitutes dishonesty, fraud, or misrepresentation;
3297 (m) engage in false or misleading advertising;
3298 (n) (i) fail to account for [
3299 mortgage loan;
3300 (ii) use [
3301
3302 (iii) except as provided in Subsection (4), retain [
3303 the services are not performed;
3304 (o) fail, within 90 calendar days of a request from a borrower who has paid for an
3305 appraisal, to give a copy of an appraisal ordered and used for a transaction to the borrower;
3306 (p) engage in an act that is performed to:
3307 (i) evade this chapter; or
3308 (ii) assist another person to evade this chapter;
3309 (q) recommend or encourage default, delinquency, or continuation of an existing
3310 default or delinquency, by a mortgage applicant on an existing indebtedness before the closing
3311 of a residential mortgage loan that will refinance all or part of the indebtedness;
3312 (r) in the case of the principal lending manager of an entity or a branch office of an
3313 entity, fail to exercise reasonable supervision over the activities of:
3314 (i) unlicensed staff; and
3315 (ii) a mortgage [
3316 lending manager;
3317 (s) pay or offer to pay an individual who does not hold a license under this chapter for
3318 work that requires the individual to hold a license under this chapter;
3319 (t) in the case of a dual licensed title licensee as defined in Section 31A-2-402 :
3320 (i) provide a title insurance product or service without the approval required by Section
3321 31A-2-405 ; or
3322 (ii) knowingly provide false or misleading information in the statement required by
3323 Subsection 31A-2-405 (2); or
3324 (u) represent to the public that the person can or will perform any act of a mortgage
3325 loan originator if that person is not licensed under this chapter because the person is exempt
3326 under Subsection 61-2c-102 (1)(f)(ii)(A), including through:
3327 (i) advertising;
3328 (ii) a business card;
3329 (iii) [
3330 (iv) a brochure;
3331 (v) a sign;
3332 (vi) a rate list; or
3333 (vii) other promotional item.
3334 (2) Whether or not the crime is related to the business of residential mortgage loans, it
3335 is a violation of this chapter for a licensee or a person who is a certified education provider to
3336 do any of the following with respect to a criminal offense that involves moral turpitude:
3337 (a) be convicted;
3338 (b) plead guilty or nolo contendere;
3339 (c) enter a plea in abeyance; or
3340 (d) be subjected to a criminal disposition similar to the ones described in Subsections
3341 (2)(a) through (c).
3342 (3) A principal lending manager does not violate Subsection (1)(r) if:
3343 (a) in contravention of the principal lending manager's written policies and
3344 instructions, an affiliated licensee of the principal lending manager violates:
3345 (i) this chapter; or
3346 (ii) rules made by the division under this chapter;
3347 (b) the principal lending manager established and followed reasonable procedures to
3348 ensure that affiliated licensees receive adequate supervision;
3349 (c) upon learning of a violation by an affiliated licensee, the principal lending manager
3350 attempted to prevent or mitigate the damage;
3351 (d) the principal lending manager did not participate in or ratify the violation by an
3352 affiliated licensee; and
3353 (e) the principal lending manager did not attempt to avoid learning of the violation.
3354 (4) Notwithstanding Subsection (1)(n)(iii), a licensee may, upon compliance with
3355 Section 70D-2-305 , charge a reasonable cancellation fee for work done originating a mortgage
3356 if the mortgage is not closed.
3357 Section 58. Section 61-2c-302 is amended to read:
3358 61-2c-302. Record requirements.
3359 (1) For the time period specified in Subsection (2), a licensee shall make or possess any
3360 record required for that licensee by a rule made by the division.
3361 (2) A licensee shall maintain in its possession a record described in Subsection (1) for
3362 four years from the last to occur of the following:
3363 (a) the final entry on a residential mortgage loan is made by that licensee;
3364 (b) if the residential mortgage loan is serviced by the licensee:
3365 (i) the residential mortgage loan is paid in full; or
3366 (ii) the licensee ceases to service the residential mortgage loan; or
3367 (c) if the residential mortgage loan is not serviced by the licensee, the residential
3368 mortgage loan is closed.
3369 (3) A licensee shall:
3370 (a) make available to the division for inspection and copying during normal business
3371 hours all records required to be maintained under this chapter; and
3372 (b) upon reasonable notice from the division to a licensee, produce all records
3373 described in Subsection (3)(a) that are related to an investigation being conducted by the
3374 division at the division office for inspection and copying by the division.
3375 (4) A licensee who is an entity shall maintain and produce for inspection by the
3376 division a current list of all individuals whose licenses are [
3377 entity.
3378 (5) (a) A licensee who engages in an activity as a mortgage loan originator shall
3379 maintain [
3380 nationwide database as required by 12 U.S.C. Sec. 5104(e) for at least four years from the day
3381 on which the licensee submits the report of condition to the nationwide database.
3382 (b) Upon request by the division, a mortgage loan originator shall produce a report of
3383 condition for inspection by the division.
3384 Section 59. Section 61-2c-401 is amended to read:
3385 61-2c-401. Investigations.
3386 (1) The division may investigate or cause to be investigated the actions of:
3387 (a) (i) a licensee;
3388 (ii) a person required to be licensed under this chapter; or
3389 (iii) the following with respect to an entity that is a licensee or an entity required to be
3390 licensed under this chapter:
3391 (A) a manager;
3392 (B) a managing partner;
3393 (C) a director;
3394 (D) an executive officer; or
3395 (E) an individual who performs a function similar to an individual listed in this
3396 Subsection (1)(a)(iii);
3397 (b) (i) an applicant for licensure or renewal of licensure under this chapter; or
3398 (ii) the following with respect to an entity that has applied for a license or renewal of
3399 licensure under this chapter:
3400 (A) a manager;
3401 (B) a managing partner;
3402 (C) a director;
3403 (D) an executive officer; or
3404 (E) an individual who performs a function similar to an individual listed in this
3405 Subsection (1)(b)(ii); or
3406 (c) [
3407 mortgage loans within this state.
3408 (2) In conducting investigations, records inspections, and adjudicative proceedings, the
3409 division may:
3410 (a) administer an oath or affirmation;
3411 (b) subpoena witnesses and evidence;
3412 (c) take evidence;
3413 (d) require the production of [
3414 record or information relevant to an investigation; and
3415 (e) serve a subpoena by certified mail.
3416 (3) A failure to respond to a request by the division in an investigation authorized
3417 under this chapter is considered as a separate violation of this chapter, including:
3418 (a) failing to respond to a subpoena;
3419 (b) withholding evidence; or
3420 (c) failing to produce [
3421 (4) The division may inspect and copy [
3422 residential mortgage loans by a licensee under this chapter, regardless of whether the [
3423
3424 (a) investigations of complaints; or
3425 (b) inspections of the [
3426 (i) this chapter; or
3427 (ii) rules adopted by the division under this chapter.
3428 (5) (a) If a licensee maintains [
3429 rules adopted by the division under this chapter outside Utah, the licensee is responsible for all
3430 reasonable costs, including reasonable travel costs, incurred by the division in inspecting [
3431
3432 (b) Upon receipt of notification from the division that [
3433 outside Utah [
3434 licensee shall deposit with the division a deposit of $500 to cover the division's expenses in
3435 connection with the examination of the [
3436 (c) If the deposit described in Subsection (5)(b) is insufficient to meet the estimated
3437 costs and expenses of examination of the [
3438 deposit to cover the estimated costs and expenses of the division.
3439 (d) (i) [
3440 General Fund as a dedicated credit to be used by the division under Subsection (5)(a).
3441 (ii) The division, with the concurrence of the executive director, may use [
3442
3443 credit for the records inspection costs under Subsection (5)(a).
3444 (iii) A deposit under this Subsection (5) shall be refunded to the licensee to the extent it
3445 is not used, together with an itemized statement from the division of all amounts it has used.
3446 (e) [
3447 (6) Failure to deposit with the division a deposit required to cover the costs of
3448 examination of [
3449 suspension of a license until the deposit is made.
3450 (7) (a) A person shall pay the costs incurred by the division to copy a record required
3451 under this chapter, including the costs incurred to copy an electronic record in a universally
3452 readable format.
3453 (b) If a person fails to pay the costs described in Subsection (7)(a), the person's license
3454 or certification is automatically suspended:
3455 (i) beginning the day on which the payment of costs is due; and
3456 (ii) ending the day on which the costs are paid.
3457 Section 60. Section 61-2c-402 is amended to read:
3458 61-2c-402. Disciplinary action.
3459 (1) Subject to the requirements of Section 61-2c-402.1 , the commission, with the
3460 concurrence of the division, may impose a sanction described in Subsection (2) against a
3461 person if the person:
3462 (a) (i) is a licensee or person required to be licensed under this chapter; and
3463 (ii) violates this chapter; or
3464 (b) (i) is a certified education provider or person required to be certified to provide
3465 prelicensing or continuing education under this chapter; and
3466 (ii) violates this chapter.
3467 (2) The commission, with the concurrence of the director, may against a person
3468 described in Subsection (1):
3469 (a) impose an educational requirement;
3470 (b) impose a civil penalty against the individual or entity in an amount not to exceed
3471 the greater of:
3472 (i) [
3473 (ii) the amount equal to any gain or economic benefit derived from each violation;
3474 (c) deny an application for an original license;
3475 (d) do any of the following to a license under this chapter:
3476 (i) suspend;
3477 (ii) revoke;
3478 (iii) place on probation;
3479 (iv) deny renewal;
3480 (v) deny reinstatement; or
3481 (vi) in the case of a denial [
3482 the expiration date of a license, set a waiting period for a person to apply for a license under
3483 this chapter;
3484 (e) issue a cease and desist order;
3485 (f) require the reimbursement of the division of costs incurred by the division related to
3486 the recovery, storage, or destruction of a record that the person disposes of in a manner that
3487 violates this chapter or a rule made under this chapter;
3488 (g) modify a sanction described in Subsections (2)(a) through (f) if the commission
3489 finds that the person complies with court ordered restitution; or
3490 (h) impose any combination of sanctions described in this Subsection (2).
3491 (3) (a) If the commission, with the concurrence of the division, issues an order that
3492 orders a fine or educational requirements as part of a disciplinary action against a person,
3493 including a stipulation and order, the commission shall state in the order the deadline by which
3494 the person shall comply with the fine or education requirements.
3495 (b) If a person fails to comply with a stated deadline:
3496 (i) the person's license or certificate is automatically suspended:
3497 (A) beginning the day specified in the order as the deadline for compliance; and
3498 (B) ending the day on which the person complies in full with the order; and
3499 (ii) if the person fails to pay a fine required by an order, the division shall begin a
3500 collection process:
3501 (A) established by the division by rule made in accordance with Title 63G, Chapter 3,
3502 Utah Administrative Rulemaking Act; and
3503 (B) subject to Title 63A, Chapter 8, Office of State Debt Collection.
3504 (4) (a) A person whose license was revoked under this chapter before May 11, 2010,
3505 may request that the revocation be converted to a suspension under this Subsection (4):
3506 (i) if the revocation was not as a result of a violation of Section 61-2c-301 ; and
3507 (ii) by filing a written request with the division.
3508 (b) Upon receipt of a request to convert a revocation under this Subsection (4), the
3509 commission, with the concurrence of the director, shall determine whether to convert the
3510 revocation.
3511 (c) The commission may delegate to the division the authority to make a decision on
3512 whether to convert a revocation.
3513 (d) If the division, acting under Subsection (4)(c), denies a request to convert a
3514 revocation, the person who requests the conversion may appeal the decision in a hearing
3515 conducted by the commission:
3516 (i) after the division denies the request to convert the revocation; and
3517 (ii) in accordance with Title 63G, Chapter 4, Administrative Procedures Act.
3518 (e) The commission may delegate to the division or an administrative law judge the
3519 authority to conduct a hearing described in Subsection (4)(d).
3520 Section 61. Section 61-2c-404 is amended to read:
3521 61-2c-404. Civil actions.
3522 (1) (a) A person who violates this chapter is liable for an additional penalty, as
3523 determined by the court, of at least the amount the person received in consequence of a
3524 violation of this chapter as:
3525 (i) commission;
3526 (ii) compensation; or
3527 (iii) profit.
3528 (b) A person aggrieved by a violation of this chapter may:
3529 (i) bring an action for a penalty described in Subsection (1)(a); and
3530 (ii) use a penalty obtained under Subsection (1)(a) for the person's own use and benefit.
3531 (2) A person who is not licensed under this chapter at the time of an act or service that
3532 requires a license under this chapter may not bring an action in court for the recovery of a
3533 commission, fee, or compensation for that act or service.
3534 (3) (a) A mortgage [
3535 [
3536 for transacting the business of residential mortgage loans unless the action is brought against
3537 the principal lending manager with whom the mortgage [
3538 the time of the act or service that is the subject of the action.
3539 (b) An action by an entity for the recovery of a fee, commission, or other compensation
3540 shall be brought by:
3541 (i) an entity; or
3542 (ii) the principal lending manager of an entity on behalf of the entity.
3543 (4) A principal lending manager who transacts the business of residential mortgage
3544 loans on the principal lending manager's own behalf may sue in the principal lending manager's
3545 own name for the recovery of a fee, commission, or compensation for transacting the business
3546 of residential mortgage loans.
3547 Section 62. Section 61-2c-501 is amended to read:
3548 61-2c-501. Fund created.
3549 (1) [
3550 Mortgage Loan Education, Research, and Recovery Fund."
3551 [
3552
3553 (2) The interest earned on the fund shall be deposited into the fund.
3554 (3) [
3555 $100,000 [
3556 person licensed under this chapter.
3557 [
3558 Section 63. Section 61-2c-501.5 is enacted to read:
3559 61-2c-501.5. Definitions.
3560 As used in this part:
3561 (1) "Civil judgment" means a judgment in a civil action that:
3562 (a) is awarded in an action brought against a real estate licensee on the basis of fraud,
3563 misrepresentation, or deceit in a residential mortgage loan transaction; and
3564 (b) awards actual damages.
3565 (2) "Criminal restitution judgment" means a judgment that, in accordance with the
3566 Utah Code of Criminal Procedure, orders criminal restitution to a person and against a real
3567 estate licensee for a criminal offense involving fraud, misrepresentation, or deceit in a
3568 residential mortgage loan transaction.
3569 (3) "Final judgment" means one of the following judgments upon termination of the
3570 proceedings related to the judgment, including appeals:
3571 (a) a civil judgment; or
3572 (b) a criminal restitution judgment.
3573 (4) "Fund" means the Residential Mortgage Loan Education, Research, and Recovery
3574 Fund created in Section 61-2c-501 .
3575 Section 64. Section 61-2c-502 is amended to read:
3576 61-2c-502. Additional license fee.
3577 (1) An individual who applies for or renews a license shall pay, in addition to [
3578
3579 (a) determined by the division with the concurrence of the commission; and
3580 (b) not to exceed $18.
3581 (2) (a) An entity that applies for or renews an entity license shall pay, in addition to
3582 [
3583 fee:
3584 [
3585 [
3586 (b) This Subsection (2) applies:
3587 (i) notwithstanding that an entity is operating under an assumed name registered with
3588 the division as required by Subsection 61-2c-201 (9); and
3589 (ii) to each branch office of an entity that is licensed under this chapter.
3590 (3) Notwithstanding Section 13-1-2 , the following shall be paid into the fund to be
3591 used as provided in this part:
3592 (a) a fee provided in this section;
3593 (b) a fee for certifying:
3594 (i) a school as a certified education provider;
3595 (ii) a prelicensing or continuing education course; or
3596 (iii) a prelicensing or continuing education provider as an instructor; and
3597 (c) a civil penalty imposed under this chapter.
3598 (4) If the balance in the fund that is available to satisfy a judgment against a licensee
3599 decreases to less than $100,000, the division may make an additional assessment to a licensee
3600 to maintain the balance available at $100,000 to satisfy judgments.
3601 Section 65. Section 61-2c-503 is amended to read:
3602 61-2c-503. Notice to division -- Judgment against mortgage licensee -- Fraud,
3603 misrepresentation, or deceit -- Verified petition for order directing payment from fund --
3604 Limitations and procedure.
3605 (1) [
3606 [
3607
3608 (a) the person obtains a final judgement;
3609 (b) the person complies with the requirements under this part;
3610 (c) the person is not substantially complicit in the fraud, misrepresentation, or deceit
3611 that is the basis of the claim; and
3612 (d) the final judgment that is the basis for the claim:
3613 (i) has not been discharged in bankruptcy; and
3614 (ii) when a bankruptcy proceeding is open or commenced during the pendency of the
3615 claim, the person obtains an order from the bankruptcy court declaring the final judgment and
3616 related debt to be nondischargeable.
3617 (2) (a) A person may not bring a claim against the fund for money owed under a civil
3618 judgment unless, within 10 business days of the day on which the person brings the civil action
3619 that results in the civil judgment, the person sends to the division a signed notification alleging
3620 fraud, misrepresentation, or deceit.
3621 (b) Within 30 calendar days [
3622 the day on which the division receives a notice under Subsection (1), the division may
3623 intervene in the action.
3624 [
3625
3626
3627
3628 (3) (a) After obtaining a final judgment, to file a claim against the fund, a person shall:
3629 (i) file a verified petition in the court where the final judgment [
3630 seeking an order directing payment from the fund [
3631 actual damages [
3632 (ii) serve a copy of the verified petition described in Subsection (3)(a)(i) on the
3633 division; and
3634 (iii) file a copy of the affidavit of service of the verified petition with the court.
3635 [
3636 (i) punitive damages[
3637 (ii) attorney fees;
3638 (iii) interest[
3639 (iv) court costs.
3640 [
3641 transaction, the liability of the fund may not exceed:
3642 (i) $15,000 for a single transaction;
3643 (ii) $45,000 for an individual licensee; or
3644 (iii) $45,000 for an entity.
3645 [
3646 [
3647 [
3648
3649 [
3650
3651 [
3652 [
3653 (5) Subject to Subsection (6), a court may order payment from the fund under this
3654 section only if the person who files the petition shows that the person:
3655 (a) is not:
3656 [
3657 (ii) in the case of a criminal judgment, the spouse of the criminal defendant; or
3658 [
3659 individual described in Subsection (5)(a)(i) or (ii);
3660 [
3661 [
3662 (c) is owed damages under a final judgment that:
3663 (i) is issued by the court in the manner prescribed under this section[
3664 (ii) indicates the amount of the final judgment awarded;
3665 [
3666 (d) has proved the amount still owing on the final judgment [
3667 on which the petition is filed;
3668 [
3669 [
3670 (e) (i) (A) has a writ of execution issued upon the final judgment; and
3671 [
3672
3673 be found; [
3674 [
3675 criminal defendant:
3676 [
3677 (A) has not realized an amount sufficient to satisfy the final judgment; and
3678 [
3679 amount realized; [
3680 [
3681 [
3682 debtor or criminal defendant has any interest in property, real or personal, that may satisfy the
3683 final judgment; and
3684 [
3685 from the assets of the judgment debtor or criminal defendant.
3686 [
3687 [
3688
3689 [
3690
3691 [
3692
3693
3694 [
3695
3696 Section 66. Section 61-2c-505 is amended to read:
3697 61-2c-505. Court determination and order.
3698 If the court determines that a claim should be levied against the portion of the fund
3699 allocated to carry out [
3700 the division to pay from the fund the portion of [
3701 payable from the fund under Section 61-2c-503 .
3702 Section 67. Section 61-2c-507 is amended to read:
3703 61-2c-507. Division subrogated -- Authority to revoke license.
3704 (1) If the division pays a [
3705 this part:
3706 (a) the division is subrogated to the rights of [
3707 amounts paid out of the fund; and
3708 (b) any amount and interest recovered by the division shall be deposited in the fund.
3709 (2) (a) Subject to Subsection (2)(b), the license of a licensee for whom payment from
3710 the fund is made under this part is automatically revoked as of the earlier of the day on which:
3711 (i) the division is ordered by a court to pay from the fund; or
3712 (ii) the division pays from the fund.
3713 (b) (i) A person whose license is revoked under Subsection (2)(a) may appeal the
3714 revocation in a hearing conducted by the commission:
3715 (A) after the revocation; and
3716 (B) in accordance with Title 63G, Chapter 4, Administrative Procedures Act.
3717 (ii) The commission may delegate:
3718 (A) to the division or an administrative law judge the authority to conduct a hearing
3719 described in Subsection (2)(b)(i); or
3720 (B) to the division the authority to make a decision on whether relief from a revocation
3721 should be granted.
3722 (3) Unless the revocation is not upheld after a hearing described in Subsection (2)(b), a
3723 licensee whose license is revoked pursuant to Subsection (2) may not apply for a new license
3724 until the licensee pays into the fund:
3725 (a) the amount paid out of the fund on behalf of the licensee; and
3726 (b) interest at a rate determined by the division with the concurrence of the
3727 commission.
3728 Section 68. Section 61-2f-101 is enacted to read:
3729
3730
3731 61-2f-101. Title.
3732 This chapter is known as the "Real Estate Licensing and Practices Act."
3733 Section 69. Section 61-2f-102 , which is renumbered from Section 61-2-2 is
3734 renumbered and amended to read:
3735 [
3736 As used in this chapter:
3737 (1) "Associate [
3738 individual who is:
3739 (a) employed or engaged as an independent contractor by or on behalf of a [
3740 principal [
3741 valuable consideration[
3742 (b) licensed under this chapter as a principal [
3743 (2) "Branch office" means a principal broker's real estate brokerage office [
3744 that is not the principal broker's main office.
3745 (3) "Commission" means the Real Estate Commission established under this chapter.
3746 (4) "Concurrence" means the entities given a concurring role must jointly agree for
3747 action to be taken.
3748 (5) "Condominium[
3749 (6) "Condominium homeowners' association" means [
3750 owners acting as a group in accordance with declarations and bylaws.
3751 (7) (a) "Condominium hotel" means one or more condominium units that are operated
3752 as a hotel.
3753 (b) "Condominium hotel" does not mean a hotel consisting of condominium units, all
3754 of which are owned by a single entity.
3755 (8) "Director" means the director of the Division of Real Estate.
3756 (9) "Division" means the Division of Real Estate.
3757 (10) "Entity" means:
3758 (a) a corporation;
3759 (b) a partnership;
3760 (c) a limited liability company;
3761 (d) a company;
3762 (e) an association;
3763 (f) a joint venture;
3764 (g) a business trust;
3765 (h) a trust; or
3766 (i) any organization similar to an entity described in Subsections (10)(a) through (h).
3767 [
3768 [
3769 the division as the principal broker's primary brokerage office.
3770 (13) "Person" means an individual or entity.
3771 [
3772 an individual who:
3773 (a) (i) [
3774 valuable consideration;
3775 (ii) buys, exchanges, or auctions real estate, options on real estate, or improvements on
3776 real estate with the expectation of receiving valuable consideration; or
3777 [
3778 out to be engaged in the business described in Subsection [
3779 (b) is employed by or on behalf of the owner of real estate or by a prospective
3780 purchaser of real estate [
3781 Subsection [
3782 a commission basis, upon a salary and commission basis, or otherwise;
3783 (c) [
3784 property owned by another person; or [
3785 (ii) advertises or otherwise holds [
3786 management;
3787 (d) [
3788 the procurement of prospects for or the negotiation of [
3789 Subsections [
3790 (e) except for [
3791 mortgage lender, title insurance producer, or an employee of a mortgage lender or title
3792 insurance producer, assists or directs in the closing of [
3793 expectation of receiving valuable consideration[
3794 (f) is licensed as a principal broker under this chapter.
3795 [
3796 receiving valuable consideration, the management of [
3797 person or advertising or otherwise claiming to be engaged in property management by:
3798 (i) advertising for, arranging, negotiating, offering, or otherwise attempting or
3799 participating in a transaction calculated to secure the rental or leasing of real estate;
3800 (ii) collecting, agreeing, offering, or otherwise attempting to collect rent for the real
3801 estate and accounting for and disbursing the money collected; or
3802 (iii) authorizing expenditures for repairs to the real estate.
3803 (b) "Property management" does not include:
3804 (i) hotel or motel management;
3805 (ii) rental of tourist accommodations, including hotels, motels, tourist homes,
3806 condominiums, condominium hotels, mobile home park accommodations, campgrounds, or
3807 similar public accommodations for [
3808 management activities associated with these rentals; or
3809 (iii) the leasing or management of surface or subsurface minerals or oil and gas
3810 interests, if the leasing or management is separate from a sale or lease of the surface estate.
3811 [
3812 property.
3813 [
3814
3815
3816
3817 [
3818 service for wages or other remuneration, whose employer withholds federal employment taxes
3819 under a contract of hire, written or oral, express or implied.
3820 (b) "Regular salaried employee" does not include [
3821 performs services on a project-by-project basis or on a commission basis.
3822 [
3823 suspended.
3824 [
3825 following revocation of the license.
3826 [
3827 or before the date the license expires.
3828 (21) "Sales agent" means an individual who is:
3829 (a) affiliated with a principal broker, either as an independent contractor or an
3830 employee as provided in Section 61-2f-303 , to perform for valuable consideration an act
3831 described in Subsection (14); and
3832 (b) licensed under this chapter as a sales agent.
3833 [
3834 in real property by two or more persons that is [
3835 (i) a tenancy in common; or
3836 (ii) any other legal form of undivided estate in real property including:
3837 (A) a fee estate;
3838 (B) a life estate; or
3839 (C) other long-term estate.
3840 (b) "Undivided fractionalized long-term estate" does not include a joint tenancy.
3841 Section 70. Section 61-2f-103 , which is renumbered from Section 61-2-5.5 is
3842 renumbered and amended to read:
3843 [
3844 (1) There is created within the division a Real Estate Commission. The commission
3845 shall:
3846 (a) in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act,
3847 make rules for the administration of this chapter that are not inconsistent with this chapter,
3848 including:
3849 (i) licensing of:
3850 (A) a principal [
3851 [
3852 [
3853 [
3854 (ii) registration of:
3855 (A) an entity; and
3856 [
3857 [
3858 [
3859 [
3860 (A) a real estate [
3861 (B) a course [
3862 [
3863 (C) an instructor;
3864 [
3865 licensee under this chapter;
3866 [
3867 [
3868 [
3869 [
3870 fractionalized long-term estate; and
3871 [
3872 Subsection [
3873 (b) establish, with the concurrence of the division, [
3874 this chapter [
3875 under Part 5, Real Estate Education, Research, and Recovery Fund Act;
3876 (c) conduct [
3877 to an administrative law judge or the division relating to the:
3878 (i) licensing of [
3879 (ii) conduct of [
3880 (iii) the certification or conduct of [
3881 instructor regulated under this chapter; or
3882 (iv) violation of this chapter by any person;
3883 (d) with the concurrence of the director, impose [
3884 Section [
3885 (e) advise the director on the administration and enforcement of [
3886 affecting the division and the real estate sales and property management industries;
3887 (f) advise the director on matters affecting the division budget;
3888 (g) advise and assist the director in conducting real estate seminars; and
3889 (h) perform other duties as provided by[
3890 [
3891 (2) (a) The commission shall be comprised of five members appointed by the governor
3892 and approved by the Senate.
3893 (b) Four of the commission members shall:
3894 (i) have at least five years' experience in the real estate business; and
3895 (ii) hold an active principal broker[
3896 (c) One commission member shall be a member of the general public.
3897 (d) [
3898 described in Subsection (2)(b) [
3899 resides in the same county in the state as another commission member.
3900 (e) At least one commission member described in Subsection (2)(b) shall at the time of
3901 an appointment reside in a county that is not a county of the first or second class.
3902 (3) (a) Except as required by Subsection (3)(b), as terms of current commission
3903 members expire, the governor shall appoint each new member or reappointed member to a
3904 four-year term ending June 30.
3905 (b) Notwithstanding the requirements of Subsection (3)(a), the governor shall, at the
3906 time of appointment or reappointment, adjust the length of terms to ensure that the terms of
3907 commission members are staggered so that approximately half of the commission is appointed
3908 every two years.
3909 (c) Upon the expiration of the term of a member of the commission, the member of the
3910 commission shall continue to hold office until a successor is appointed and qualified.
3911 (d) A commission member may not serve more than two consecutive terms.
3912 (e) Members of the commission shall annually select one member to serve as chair.
3913 (4) When a vacancy occurs in the membership for any reason, [
3914
3915 unexpired term.
3916 (5) (a) A member may not receive compensation or benefits for the member's services,
3917 but may receive per diem and expenses incurred in the performance of the member's official
3918 duties at the rates established by the Division of Finance under Sections 63A-3-106 and
3919 63A-3-107 .
3920 (b) A member may decline to receive per diem and expenses for the member's service.
3921 (6) (a) The commission shall meet at least monthly.
3922 (b) The director may call additional meetings:
3923 (i) at the director's discretion;
3924 (ii) upon the request of the chair; or
3925 (iii) upon the written request of three or more commission members.
3926 (7) Three members of the commission constitute a quorum for the transaction of
3927 business.
3928 Section 71. Section 61-2f-104 , which is renumbered from Section 61-2-14 is
3929 renumbered and amended to read:
3930 [
3931 available.
3932 [
3933 the names and addresses of [
3934 chapter either directly or through a third party.
3935 (2) A person who requests a list under Subsection (1) shall pay the costs incurred by
3936 the division to make the list available.
3937 Section 72. Section 61-2f-105 is enacted to read:
3938 61-2f-105. Fees.
3939 (1) In addition to when expressly authorized in another provision of this chapter, the
3940 division may charge and collect reasonable fees determined by the commission with the
3941 concurrence of the division under Section 63J-1-504 to cover the costs for:
3942 (a) issuing a new or duplicate license;
3943 (b) registering an entity or branch office;
3944 (c) certifying a real estate school, course, or instructor;
3945 (d) providing a history of a license, registration, or certification; and
3946 (e) producing a certified copy of an official document, order, or other paper or
3947 transcript; and
3948 (f) other duties required by this chapter.
3949 (2) Notwithstanding Section 13-1-2 , a fee collected under Subsection (1)(c) shall be
3950 deposited in the Real Estate Education, Research, and Recovery Fund.
3951 (3) If a person pays a fee or costs to the division with a negotiable instrument and the
3952 negotiable instrument is not honored for payment:
3953 (a) the transaction for which the payment is submitted is voidable by the division;
3954 (b) the division may reverse the transaction if payment of the applicable fee or costs is
3955 not received in full; and
3956 (c) the person's license, certification, or registration is automatically suspended:
3957 (i) beginning the day on which the payment is due; and
3958 (ii) ending the day on which payment is made in full.
3959 (4) (a) A fee under this chapter is in lieu of all other license fees or assessments that
3960 might otherwise be imposed or charged by the state or any of its political subdivisions upon, or
3961 as a condition of, the privilege of conducting the business regulated by this chapter, except that
3962 a political subdivision within the state may charge a business license fee on a principal broker
3963 if the principal broker maintains a place of business within the jurisdiction of the political
3964 subdivision.
3965 (b) Unless otherwise exempt, a licensee under this chapter is subject to the taxes
3966 imposed under Title 59, Revenue and Taxation.
3967 Section 73. Section 61-2f-106 , which is renumbered from Section 61-2-22 is
3968 renumbered and amended to read:
3969 [
3970 If [
3971 or circumstance, is held invalid, the remainder of this chapter [
3972 shall be given effect without the invalid provision or application. The provisions of this
3973 provision are severable.
3974 Section 74. Section 61-2f-201 , which is renumbered from Section 61-2-1 is
3975 renumbered and amended to read:
3976
3977 [
3978 (1) [
3979 person may not do the following with respect to real estate located in this state:
3980 (a) engage in the business[
3981 (b) act in the capacity of[
3982 (c) advertise[
3983
3984
3985 [
3986
3987
3988
3989 (2) Except as provided in Section 61-2f-202 , an individual is required to be licensed as
3990 a principal broker or a sales agent if the individual performs, offers to perform, or attempts to
3991 perform one act for valuable consideration of:
3992 (a) buying, selling, leasing, managing, or exchanging real estate for another person; or
3993 (b) offering for another person to buy, sell, lease, manage, or exchange real estate.
3994 Section 75. Section 61-2f-202 , which is renumbered from Section 61-2-3 is
3995 renumbered and amended to read:
3996 [
3997 (1) (a) Except as provided in Subsection (1)(b), a license under this chapter is not
3998 required for:
3999 (i) [
4000 in Subsection [
4001 leased by that [
4002 (ii) a regular salaried employee of the owner or lessor of real estate who, with reference
4003 to nonresidential real estate owned or leased by the employer, performs [
4004
4005 (iii) a regular salaried employee of the owner of real estate who performs property
4006 management services with reference to real estate owned by the employer, except that the
4007 employee may only manage [
4008 (iv) [
4009 apartments at which that [
4010 that [
4011 (v) a regular salaried employee of a condominium homeowners' association who
4012 manages real [
4013 condominium homeowners' association, except that the employee may only manage [
4014 real estate for one condominium homeowners' association; and
4015 (vi) a regular salaried employee of a licensed property management company who
4016 performs support services, as prescribed by rule, for the property management company.
4017 (b) Subsection (1)(a) does not exempt from licensing:
4018 (i) an employee engaged in the sale of [
4019 (A) Title 57, Chapter 11, Utah Uniform Land Sales Practices Act; and
4020 (B) Title 57, Chapter 19, Timeshare and Camp Resort Act;
4021 (ii) an employee engaged in the sale of cooperative interests regulated under Title 57,
4022 Chapter 23, Real Estate Cooperative Marketing Act; or
4023 (iii) [
4024 [
4025 application of this chapter, and not for [
4026 (2) A license under this chapter is not required for:
4027 (a) an isolated transaction by [
4028 attorney from [
4029 (b) services rendered by an attorney in performing the attorney's duties as an attorney;
4030 (c) a receiver, trustee in bankruptcy, administrator, executor, or [
4031 individual acting under order of [
4032 (d) a trustee or employee of a trustee under a deed of trust or a will;
4033 (e) a public utility, officer of a public utility, or regular salaried employee of a public
4034 utility, unless performance of [
4035 [
4036 of real estate or investment in real estate unrelated to the principal business activity of that
4037 public utility;
4038 (f) a regular salaried employee or authorized agent working under the oversight of the
4039 Department of Transportation when performing an act on behalf of the Department of
4040 Transportation in connection with one or more of the following:
4041 (i) the acquisition of real [
4042 (ii) the disposal of real [
4043 (iii) services that constitute property management; or
4044 (iv) the leasing of real [
4045 (g) a regular salaried employee of a county, city, or town when performing an act on
4046 behalf of the county, city, or town:
4047 (i) in accordance with:
4048 (A) if a regular salaried employee of a city or town:
4049 (I) Title 10, Utah Municipal Code; or
4050 (II) Title 11, Cities, Counties, and Local Taxing Units; and
4051 (B) if a regular salaried employee of a county:
4052 (I) Title 11, Cities, Counties, and Local Taxing Units; and
4053 (II) Title 17, Counties; and
4054 (ii) in connection with one or more of the following:
4055 (A) the acquisition of real [
4056 (B) the disposal of real [
4057 (C) services that constitute property management; or
4058 (D) the leasing of real [
4059 (3) A license under this chapter is not required for [
4060 act as a broker-dealer, agent, or investment adviser under the Utah and federal securities laws
4061 in the sale or the offer for sale of real estate if:
4062 (a) (i) the real estate is a necessary element of a "security" as that term is defined by the
4063 Securities Act of 1933 and the Securities Exchange Act of 1934; and
4064 (ii) the security is registered for sale in accordance with:
4065 (A) pursuant to the Securities Act of 1933; or
4066 (B) by Title 61, Chapter 1, Utah Uniform Securities Act; or
4067 (b) (i) it is a transaction in a security for which a Form D, described in 17 C.F.R. Sec.
4068 239.500, has been filed with the Securities and Exchange Commission pursuant to Regulation
4069 D, Rule 506, 17 C.F.R. Sec. 230.506; and
4070 (ii) the selling agent and the purchaser are not residents of this state.
4071 Section 76. Section 61-2f-203 , which is renumbered from Section 61-2-6 is
4072 renumbered and amended to read:
4073 [
4074 (1) (a) Except as provided in Subsection (5), the commission shall determine the
4075 qualifications and requirements of an applicant for:
4076 (i) a principal broker license; or
4077 [
4078 [
4079 (b) The division, with the concurrence of the commission, shall require and pass upon
4080 proof necessary to determine the honesty, integrity, truthfulness, reputation, and competency of
4081 each applicant for an initial license or for renewal of an existing license.
4082 (c) (i) The division, with the concurrence of the commission, shall require an applicant
4083 for:
4084 (A) a sales agent license to complete an approved educational program consisting of
4085 the number of hours designated by rule made by the commission with the concurrence of the
4086 division, except that the rule may not require less than 120 hours; and
4087 (B) [
4088 educational program consisting of the number of hours designated by rule made by the
4089 commission with the concurrence of the division, except that the rule may not require less than
4090 120 hours.
4091 (ii) An hour required by this section means 50 minutes of instruction in each 60
4092 minutes.
4093 (iii) The maximum number of program hours available to an individual is [
4094 hours per day.
4095 (d) The division, with the concurrence of the commission, shall require the applicant to
4096 pass an examination approved by the commission covering:
4097 (i) the fundamentals of:
4098 (A) the English language;
4099 (B) arithmetic;
4100 (C) bookkeeping; and
4101 (D) real estate principles and practices;
4102 (ii) the provisions of this chapter;
4103 (iii) the rules established by the commission; and
4104 (iv) any other aspect of Utah real estate license law considered appropriate.
4105 (e) (i) Three years' full-time experience as a [
4106 required before an applicant may apply for, and secure a principal broker [
4107 license in this state.
4108 (ii) The commission shall establish by rule, made in accordance with Title 63G,
4109 Chapter 3, Utah Administrative Rulemaking Act, the criteria by which the commission will
4110 accept experience or special education in similar fields of business in lieu of the three years'
4111 experience.
4112 (2) (a) The division, with the concurrence of the commission, may require an applicant
4113 to furnish a sworn statement setting forth evidence satisfactory to the division of the applicant's
4114 reputation and competency as set forth by rule.
4115 (b) The division shall require an applicant to provide the applicant's Social Security
4116 number, which is a private record under Subsection 63G-2-302 (1)(h).
4117 (3) (a) [
4118 individual who is not a resident of this state may be licensed in this state if the person complies
4119 with all the provisions of this chapter [
4120 (b) [
4121 associate broker or be licensed as a sales agent [
4122 (i) complying with all the provisions of this chapter [
4123 (ii) being employed or engaged as an independent contractor by or on behalf of a
4124 [
4125 the principal broker is a resident of this state.
4126 (4) (a) Except as provided in Subsection [
4127 and commission shall treat an application to be relicensed of an applicant whose real estate
4128 license is revoked as an original application.
4129 (b) In the case of an applicant for a new license as a principal broker [
4130
4131 real estate license.
4132 (5) (a) Notwithstanding Subsection (1), the commission may delegate to the division
4133 the authority to:
4134 (i) review a class or category of applications for initial or renewed licenses;
4135 (ii) determine whether an applicant meets the licensing criteria in Subsection (1); and
4136 (iii) approve or deny a license application without concurrence by the commission.
4137 (b) (i) If the commission delegates to the division the authority to approve or deny an
4138 application without concurrence by the commission and the division denies an application for
4139 licensure, the applicant who is denied licensure may petition the commission for review of the
4140 denial of licensure.
4141 (ii) An applicant who is denied licensure pursuant to this Subsection (5) may seek
4142 agency review by the executive director only after the commission has reviewed the division's
4143 denial of the applicant's application.
4144 Section 77. Section 61-2f-204 , which is renumbered from Section 61-2-9 is
4145 renumbered and amended to read:
4146 [
4147 procedures.
4148 (1) (a) Upon filing an application for [
4149
4150 pay a nonrefundable fee as determined by the commission with the concurrence of the division
4151 under Section 63J-1-504 for admission to the examination.
4152 (b) [
4153 [
4154 concurrence of the division under Section 63J-1-504 for issuance of an initial license or license
4155 renewal.
4156 (c) A license issued under this Subsection (1) shall be issued for a period of not less
4157 than two years as determined by the division with the concurrence of the commission.
4158 (d) (i) Any of the following applicants shall comply with this Subsection (1)(d):
4159 (A) a new sales agent applicant; or
4160 (B) a principal broker applicant.
4161 (ii) An applicant described in this Subsection (1)(d) shall:
4162 (A) submit fingerprint cards in a form acceptable to the division at the time the license
4163 application is filed; and
4164 (B) consent to a criminal background check by the Utah Bureau of Criminal
4165 Identification and the Federal Bureau of Investigation regarding the application.
4166 (iii) The division shall request the Department of Public Safety to complete a Federal
4167 Bureau of Investigation criminal background check for each applicant described in this
4168 Subsection (1)(d) through the national criminal history system or any successor system.
4169 (iv) The applicant shall pay the cost of the criminal background check and the
4170 fingerprinting.
4171 (v) [
4172 background check [
4173 (e) (i) A license issued under Subsection (1)(d) is conditional, pending completion of
4174 the criminal background check. [
4175 (ii) A license is immediately and automatically revoked if the criminal background
4176 check discloses the applicant fails to accurately disclose a criminal history[
4177
4178 (A) the real estate industry;
4179 (B) fraud;
4180 (C) misrepresentation; or
4181 (D) deceit.
4182 (iii) If a criminal background check discloses that an applicant fails to accurately
4183 disclose a criminal history other than one described in Subsection (1)(e)(ii), the division:
4184 (A) shall review the application; and
4185 (B) in accordance with rules made by the division pursuant to Title 63G, Chapter 3,
4186 Utah Administrative Rulemaking Act, may:
4187 (I) place a condition on a license;
4188 (II) place a restriction on a license;
4189 (III) revoke a license; or
4190 (IV) refer the application to the commission for a decision.
4191 [
4192 Subsection (1)(e)[
4193 Subsection (1)(e)(iii) may have a [
4194 the [
4195 4, Administrative Procedures Act.
4196 [
4197 presiding officer in a [
4198 (A) the division; or
4199 (B) the division with the concurrence of the commission.
4200 [
4201 under this Subsection (1)(e) will be granted shall be made by the presiding officer.
4202 [
4203 may be granted only if:
4204 (A) the criminal history upon which the division based the revocation:
4205 (I) did not occur; or
4206 (II) is the criminal history of another person;
4207 (B) (I) the revocation is based on a failure to accurately disclose a criminal history; and
4208 (II) the applicant has a reasonable good faith belief at the time of application that there
4209 was no criminal history to be disclosed; or
4210 (C) the division fails to follow the prescribed procedure for the revocation.
4211 [
4212 after a [
4213 at least 12 months after the day on which the license is revoked.
4214 (2) (a) (i) A license expires if it is not renewed on or before its expiration date.
4215 (ii) As a condition of renewal, an active licensee shall demonstrate competence by
4216 completing 18 hours of continuing education within a two-year renewal period subject to rules
4217 made by the commission, with the concurrence of the division.
4218 (iii) In making a rule described in Subsection (2)(c)(ii), the division and commission
4219 shall consider:
4220 (A) evaluating continuing education on the basis of competency, rather than course
4221 time;
4222 (B) allowing completion of courses in a significant variety of topic areas that the
4223 division and commission determine are valuable in assisting an individual licensed under this
4224 chapter to increase the individual's competency; and
4225 (C) allowing completion of courses that will increase a licensee's professional
4226 competency in the area of practice of the licensee.
4227 [
4228
4229 [
4230 [
4231 [
4232 [
4233 [
4234 from all or a part of the continuing education requirement of this Subsection (2)(a) for a
4235 reasonable period of time:
4236 (A) upon a finding of reasonable cause, including:
4237 (I) military service; or
4238 (II) if an individual is elected or appointed to government service, the individual's
4239 government service during which the individual spends a substantial time addressing real estate
4240 issues; and
4241 (B) under conditions established by rule made in accordance with Title 63G, Chapter 3,
4242 Utah Administrative Rulemaking Act.
4243 (b) For a period of 30 days after the expiration date of a license, the license may be
4244 reinstated upon:
4245 (i) payment of a renewal fee and a late fee determined by the commission with the
4246 concurrence of the division under Section 63J-1-504 ; and
4247 (ii) providing proof acceptable to the division and the commission of the licensee
4248 having:
4249 (A) completed the hours of education required by Subsection (2)(a); or
4250 (B) demonstrated competence as required under Subsection (2)(a).
4251 (c) After the 30-day period described in Subsection (2)(b), and until six months after
4252 the expiration date, the license may be reinstated by:
4253 (i) paying a renewal fee and a late fee determined by the commission with the
4254 concurrence of the division under Section 63J-1-504 ;
4255 (ii) providing to the division proof of satisfactory completion of 12 hours of continuing
4256 education:
4257 (A) in addition to the requirements for a timely renewal; and
4258 (B) on a subject determined by the commission by rule made in accordance with Title
4259 63G, Chapter 3, Utah Administrative Rulemaking Act; and
4260 (iii) providing proof acceptable to the division and the commission of the licensee
4261 having:
4262 (A) completed the hours of education required under Subsection (2)(a); or
4263 (B) demonstrated competence as required under Subsection (2)(a).
4264 (d) After the six-month period described in Subsection (2)(c), and until one year after
4265 the expiration date, the license may be reinstated by:
4266 (i) paying a renewal fee and a late fee determined by the commission with the
4267 concurrence of the division under Section 63J-1-504 ;
4268 (ii) providing to the division proof of satisfactory completion of 24 hours of continuing
4269 education:
4270 (A) in addition to the requirements for a timely renewal; and
4271 (B) on a subject determined by the commission by rule made in accordance with Title
4272 63G, Chapter 3, Utah Administrative Rulemaking Act; and
4273 (iii) providing proof acceptable to the division and the commission of the licensee
4274 having:
4275 (A) completed the hours of education required by Subsection (2)(a); or
4276 (B) demonstrated competence as required under Subsection (2)(a).
4277 (e) The division shall relicense a person who does not renew that person's license
4278 within one year as prescribed for an original application.
4279 (f) Notwithstanding Subsection (2)(a), the division may extend the term of a license
4280 that would expire under Subsection (2)(a) except for the extension if:
4281 (i) the person complies with the requirements of this section to renew the license; and
4282 (ii) at the time of the extension, there is pending under this chapter:
4283 (A) the application for renewal of the license; or
4284 (B) a disciplinary action.
4285 (3) (a) As a condition for the activation of an inactive license that was in an inactive
4286 status at the time of the licensee's most recent renewal, the licensee shall supply the division
4287 with proof of:
4288 (i) successful completion of the respective sales agent or principal broker licensing
4289 examination within six months prior to applying to activate the license; or
4290 (ii) the successful completion of the hours of continuing education that the licensee
4291 would have been required to complete under Subsection (2)(a) if the license had been on active
4292 status at the time of the licensee's most recent renewal.
4293 (b) The commission may, in accordance with Title 63G, Chapter 3, Utah
4294 Administrative Rulemaking Act, establish by rule:
4295 (i) the nature or type of continuing education required for reactivation of a license; and
4296 (ii) how long before reactivation the continuing education must be completed.
4297 [
4298
4299
4300 [
4301 [
4302 [
4303
4304 [
4305
4306
4307 [
4308 [
4309 [
4310 [
4311
4312
4313 [
4314 [
4315
4316
4317
4318 [
4319
4320
4321
4322
4323
4324
4325 [
4326
4327 Section 78. Section 61-2f-205 , which is renumbered from Section 61-2-7 is
4328 renumbered and amended to read:
4329 [
4330 (1) The division shall issue to [
4331 (a) the name and address of the licensee[
4332 (b) the seal of the state [
4333 and
4334 (c) any other matter prescribed by the division [
4335 (2) The division shall send the license described in Subsection (1) to the licensee at the
4336 address furnished by the licensee. [
4337
4338 (3) A principal broker shall keep the license of the principal broker and the license of
4339 any associate broker or sales agent affiliated with the principal broker in the office in which the
4340 licensee works to be made available on request.
4341 Section 79. Section 61-2f-206 is enacted to read:
4342 61-2f-206. Registration of entity or branch office -- Certification of education
4343 providers and courses -- Specialized licenses.
4344 (1) (a) An entity may not engage in an activity described in Section 61-2f-201 , unless it
4345 is registered with the division.
4346 (b) To register with the division under this Subsection (1), an entity shall submit to the
4347 division:
4348 (i) an application in a form required by the division;
4349 (ii) evidence of an affiliation with a principal broker;
4350 (iii) evidence that the entity is registered and in good standing with the Division of
4351 Corporations and Commercial Code; and
4352 (iv) a registration fee established by the commission with the concurrence of the
4353 division under Section 63J-1-504 .
4354 (2) (a) A principal broker shall register with the division each of the principal broker's
4355 branch offices.
4356 (b) To register a branch office with the division under this Subsection (2), a principal
4357 broker shall submit to the division:
4358 (i) an application in a form required by the division; and
4359 (ii) a registration fee established by the commission with the concurrence of the
4360 division under Section 63J-1-504 .
4361 (3) (a) In accordance with rules made by the commission, the division shall certify:
4362 (i) a real estate school;
4363 (ii) a course provider; or
4364 (iii) an instructor.
4365 (b) In accordance with rules made by the commission, and with the concurrence of the
4366 commission, the division shall certify a continuing education course that is required under this
4367 section.
4368 (4) (a) Except as provided by rule, a principal broker may not be responsible for more
4369 than one registered entity at the same time.
4370 (b) (i) In addition to issuing a principal broker license or sales agent license authorizing
4371 the performance of an act set forth in Section 61-2f-201 , the division may issue a specialized
4372 sales license or specialized property management license with the scope of practice limited to
4373 the specialty.
4374 (ii) An individual may hold a specialized license in addition to a license as a principal
4375 broker or a sales agent.
4376 (iii) The commission may adopt rules pursuant to Title 63G, Chapter 3, Utah
4377 Administrative Rulemaking Act, for the administration of this Subsection (4), including:
4378 (A) prelicensing and postlicensing education requirements;
4379 (B) examination requirements;
4380 (C) affiliation with real estate brokerages or property management companies; and
4381 (D) other licensing procedures.
4382 Section 80. Section 61-2f-207 , which is renumbered from Section 61-2-7.1 is
4383 renumbered and amended to read:
4384 [
4385 (1) An applicant, licensee, registrant, or certificate holder shall send the division a
4386 signed statement in the form required by the division notifying the division within 10 business
4387 days of any change of:
4388 (a) principal broker;
4389 (b) principal business location;
4390 (c) mailing address;
4391 (d) home street address;
4392 (e) an individual's name; or
4393 (f) business name.
4394 (2) The division may charge a fee established by the commission with the concurrence
4395 of the division in accordance with Section 63J-1-504 for processing any notification of change
4396 submitted by an applicant, licensee, registrant, or certificate holder.
4397 (3) (a) When providing the division a business location or home street address, a
4398 physical location or street address must be provided.
4399 (b) When providing a mailing address, an applicant, licensee, registrant, or certificate
4400 holder may provide a post office box or other mail drop location.
4401 (4) Failure to notify the division of a change described in Subsection (1) is separate
4402 grounds for disciplinary action against [
4403 holder.
4404 (5) An applicant, licensee, registrant, or certificate holder is considered to have
4405 received any notification that has been sent to the last address furnished to the division by the
4406 applicant, licensee, registrant, or certificate holder.
4407 Section 81. Section 61-2f-301 , which is renumbered from Section 61-2-7.2 is
4408 renumbered and amended to read:
4409
4410 [
4411 A licensee shall notify the division of the following by sending the division a signed
4412 statement within 10 business days of:
4413 (1) (a) a conviction of a criminal offense;
4414 (b) the entry of a plea in abeyance to a criminal offense; or
4415 (c) the potential resolution of a criminal case by:
4416 (i) a diversion agreement; or
4417 (ii) [
4418 for a period of time; [
4419 (2) filing a personal or brokerage bankruptcy[
4420 (3) the suspension, revocation, surrender, cancellation, or denial of a license or
4421 registration of the licensee that is necessary to engage in an occupation or profession,
4422 regardless of whether the license or registration is issued by this state or another jurisdiction; or
4423 (4) the entry of a cease and desist order or a temporary or permanent injunction:
4424 (a) against the licensee by a court or administrative agency; and
4425 (b) on the basis of:
4426 (i) conduct or a practice involving the business of real estate; or
4427 (ii) conduct involving fraud, misrepresentation, or deceit.
4428 Section 82. Section 61-2f-302 , which is renumbered from Section 61-2-10 is
4429 renumbered and amended to read:
4430 [
4431 licenses -- Designation of agents or brokers.
4432 [
4433
4434
4435
4436 [
4437
4438
4439 [
4440
4441 [
4442 [
4443
4444 [
4445 [
4446 [
4447
4448 [
4449
4450 [
4451
4452 [
4453
4454
4455
4456
4457 (1) An individual who is not a principal broker may not engage in an act described in
4458 Section 61-2f-201 unless the individual is affiliated with a principal broker as:
4459 (a) an associate broker; or
4460 (b) a sales agent.
4461 (2) (a) An inactive associate broker or sales agent may not conduct a real estate
4462 transaction until the inactive associate broker or sales agent becomes affiliated with a
4463 [
4464 (b) An inactive principal broker may not conduct a real estate transaction until the
4465 principal broker's license is activated with the division.
4466 (3) A sales agent or associate broker may not affiliate with more than one principal
4467 broker at the same time.
4468 [
4469
4470 [
4471
4472
4473
4474 [
4475
4476 [
4477
4478 [
4479 [
4480 [
4481 [
4482 [
4483 sales agent or associate broker for a different [
4484 (5) An owner, purchaser, lessor, or lessee who engages the services of a principal
4485 broker may designate which sales agents or associate brokers affiliated with that principal
4486 broker will also represent that owner, purchaser, lessor, or lessee in the purchase, sale, lease, or
4487 exchange of real estate, or in exercising an option relating to real estate.
4488 Section 83. Section 61-2f-303 , which is renumbered from Section 61-2-25 is
4489 renumbered and amended to read:
4490 [
4491 contractors or employees -- Presumption.
4492 A sales agent may be affiliated with a [
4493 an independent contractor or as an employee. The relationship between sales agent and
4494 principal broker is presumed to be an independent contractor relationship unless there is clear
4495 and convincing evidence that the relationship was intended by the parties to be an employer
4496 employee relationship.
4497 Section 84. Section 61-2f-304 , which is renumbered from Section 61-2-8 is
4498 renumbered and amended to read:
4499 [
4500 principal broker -- Notice.
4501 [
4502
4503 days from the day on which the principal broker terminates the associate broker or sales agent:
4504 (a) provide the division a signed statement notifying the division of the [
4505
4506 (b) send to the last-known residence address of that associate broker or sales agent
4507 [
4508
4509 the associate broker or sales agent.
4510 (2) An associate broker or sales agent [
4511 this chapter, directly or indirectly, from and after the date of receipt of the termination notice
4512 until [
4513 broker or sales agent is affiliated with a principal broker.
4514 Section 85. Section 61-2f-305 is enacted to read:
4515 61-2f-305. Restrictions on commissions.
4516 (1) Except as provided in Subsection (2), an associate broker or sales agent may not
4517 accept valuable consideration for the performance of an act specified in this chapter from a
4518 person except the principal broker with whom the associate broker or sales agent is affiliated.
4519 (2) An associate broker or sales agent may receive valuable consideration for the
4520 performance of an act specified in this chapter from a person other than the principal broker
4521 with whom the associate broker or sales agent is affiliated if:
4522 (a) the valuable consideration is paid with a payment instrument prepared by a title
4523 insurance agent;
4524 (b) the title insurance agent provides the payment instrument to the principal broker;
4525 (c) the title insurance agent complies with the written instructions of the principal
4526 broker:
4527 (i) in preparing the payment instrument; and
4528 (ii) delivering the payment instrument to the principal broker; and
4529 (d) the principal broker directly delivers the payment instrument to the associate broker
4530 or sales agent.
4531 (3) The commission, with the concurrence of the division, shall make rules in
4532 accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act:
4533 (a) defining what constitutes a "payment instrument" for purposes of this section; or
4534 (b) the form and contents of the written instructions required by Subsection (2),
4535 including providing that the contents of the written instructions indicate that the payment
4536 instrument process is an assignment to the associate broker or sales agent by the principal
4537 broker of a portion of the consideration the title insurance agent is obligated to pay the
4538 principal broker.
4539 Section 86. Section 61-2f-306 , which is renumbered from Section 61-2-20 is
4540 renumbered and amended to read:
4541 [
4542 forms or documents.
4543 (1) Except as provided in Subsection (2), a real estate licensee may fill out only those
4544 legal forms approved by the commission and the attorney general, and those forms provided by
4545 statute.
4546 (2) (a) (i) A principal broker may fill out any documents associated with the closing of
4547 a real estate transaction.
4548 (ii) A branch broker or associate broker may fill out any documents associated with the
4549 closing of a real estate transaction if designated to fill out the documents by the principal
4550 broker with whom the branch broker or associate broker is affiliated.
4551 (b) A real estate licensee may fill out real estate forms prepared by legal counsel of the
4552 buyer, seller, lessor, or lessee.
4553 (c) If the commission and the attorney general have not approved a specific form for
4554 the transaction, a principal broker, associate broker, or sales agent may fill out real estate forms
4555 prepared by any legal counsel, including legal counsel retained by the brokerage to develop
4556 these forms.
4557 (3) The commission may by rule, made in accordance with Title 63G, Chapter 3, Utah
4558 Administrative Rulemaking Act, provide a process for the approval of a legal form under this
4559 section by the commission and the attorney general.
4560 Section 87. Section 61-2f-307 , which is renumbered from Section 61-2-26 is
4561 renumbered and amended to read:
4562 [
4563 fractionalized long-term estate -- Disclosures -- Management agreement.
4564 (1) (a) A licensee or certificate holder under this chapter who sells or offers to sell an
4565 undivided fractionalized long-term estate shall comply with the disclosure requirements
4566 imposed by rules made by the commission under this section.
4567 (b) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the
4568 commission shall make rules as to the timing, form, and substance of disclosures required to be
4569 made by a licensee or certificate holder under this section.
4570 (2) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the
4571 commission shall make rules imposing requirements for a management agreement related to an
4572 undivided fractionalized long-term estate that makes the offer or sale of the undivided
4573 fractionalized long-term estate treated as a real estate transaction and not treated as an offer or
4574 sale of a security under Chapter 1, Utah Uniform Securities Act.
4575 (3) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the
4576 commission shall make rules establishing:
4577 (a) the disclosures required in the sale or offer of an undivided fractionalized long-term
4578 estate that is subject to a master lease;
4579 (b) requirements for the management of a master lease on an undivided fractionalized
4580 long-term estate; and
4581 (c) the requirements on the structure of a master lease on an undivided fractionalized
4582 long-term estate.
4583 Section 88. Section 61-2f-308 , which is renumbered from Section 61-2-27 is
4584 renumbered and amended to read:
4585 [
4586 (1) As used in this section:
4587 (a) "Client" means a person who makes an exclusive brokerage agreement with a
4588 principal broker under Subsection (1)(c).
4589 (b) "Closed" means that:
4590 (i) [
4591 (ii) [
4592 is paid in the form of collected or cleared funds;
4593 (iii) the proceeds of any new loan are delivered by the lender to the seller; and
4594 (iv) [
4595 the county in which the [
4596 (c) "Exclusive brokerage agreement" means a written agreement between a client and a
4597 principal broker:
4598 (i) (A) to list for sale, lease, or exchange:
4599 (I) real estate;
4600 (II) an option on real estate; or
4601 (III) an improvement on real estate; or
4602 (B) for representation in the purchase, lease, or exchange of:
4603 (I) real estate;
4604 (II) an option on real estate; or
4605 (III) an improvement on real estate;
4606 (ii) that gives the principal broker the sole right to act as the agent or representative of
4607 the client for the purchase, sale, lease, or exchange of:
4608 (A) real estate;
4609 (B) an option on real estate; or
4610 (C) an improvement on real estate; and
4611 (iii) that gives the principal broker the expectation of receiving valuable consideration
4612 in exchange for the principal broker's services.
4613 (2) (a) Except as provided in Subsection (2)(b), a principal broker subject to an
4614 exclusive brokerage agreement shall:
4615 (i) accept delivery of and present to the client offers and counteroffers to buy, lease, or
4616 exchange the client's [
4617 (ii) assist the client in developing, communicating, and presenting offers, counteroffers,
4618 and notices; and
4619 (iii) answer any question the client has concerning:
4620 (A) an offer;
4621 (B) a counteroffer;
4622 (C) a notice; and
4623 (D) a contingency.
4624 (b) A principal broker subject to an exclusive brokerage agreement need not comply
4625 with Subsection (2)(a) after:
4626 (i) (A) an agreement for the sale, lease, or exchange of the real estate, option on real
4627 estate, or improvement on real estate is[
4628 (B) [
4629 waived; and
4630 (C) the sale, lease, or exchange is closed; or
4631 (ii) the exclusive brokerage agreement expires or terminates.
4632 (3) A principal broker who violates this section is subject to [
4633 61-2f-404 and 61-2f-405 .
4634 Section 89. Section 61-2f-401 , which is renumbered from Section 61-2-11 is
4635 renumbered and amended to read:
4636
4637 [
4638 The following acts are unlawful for a person required to be licensed under this chapter:
4639 (1) (a) making a substantial misrepresentation;
4640 (b) making an intentional misrepresentation;
4641 (c) pursuing a continued and flagrant course of misrepresentation;
4642 (d) making a false representation or promise through an agent, sales agent, advertising,
4643 or otherwise; or
4644 [
4645 persuade, or induce;
4646 [
4647
4648 [
4649 of all parties;
4650 [
4651 with a [
4652 (b) representing or attempting to represent a principal broker other than the principal
4653 broker with whom the person is affiliated; or
4654 (c) representing as sales agent or having a contractual relationship similar to that of
4655 sales agent with a person other than a [
4656 [
4657
4658
4659 (b) commingling [
4660 person's own [
4661 (c) diverting [
4662 for which [
4663 [
4664 commission, to a person not licensed under this chapter, except that valuable consideration
4665 may be shared:
4666 (a) with a [
4667 (b) as provided under:
4668 (i) Title 16, Chapter 10a, Utah Revised Business Corporation Act;
4669 (ii) Title 16, Chapter 11, Professional Corporation Act; or
4670 (iii) Title 48, Chapter 2c, Utah Revised Limited Liability Company Act;
4671 [
4672 or sales agent in such manner as to safeguard the interests of the public;
4673 [
4674
4675 [
4676 each transaction, including:
4677 (a) the names of buyers and sellers or lessees and lessors;
4678 (b) the identification of [
4679 (c) the sale or rental price;
4680 (d) [
4681 (e) agreements or instructions from buyers and sellers or lessees and lessors; and
4682 (f) any other information required by rule;
4683 [
4684 real estate, whether the purchase, sale, or rental is made for that person or for an undisclosed
4685 principal;
4686 [
4687 (10) being convicted of a criminal offense involving moral turpitude within five years
4688 of the most recent application[
4689 (a) regardless of whether the criminal offense is related to real estate; and
4690 (b) including:
4691 [
4692 [
4693 [
4694 false, misleading, or deceptive manner;
4695 [
4696 failing to exercise reasonable supervision over the activities of the principal broker's or branch
4697 manager's [
4698 [
4699 (a) this chapter;
4700 (b) an order of the commission; or
4701 (c) the rules adopted by the commission and the division;
4702 [
4703 real estate transaction;
4704 [
4705 [
4706 [
4707
4708 (17) having one of the following suspended, revoked, surrendered, or cancelled on the
4709 basis of misconduct in a professional capacity that relates to character, honesty, integrity, or
4710 truthfulness:
4711 (a) a real estate license, registration, or certificate issued by another jurisdiction; or
4712 (b) another [
4713 or profession issued by this state or another jurisdiction;
4714 [
4715 under this chapter, including:
4716 (a) failing to respond to a subpoena;
4717 (b) withholding evidence; or
4718 (c) failing to produce documents or records;
4719 [
4720 (a) providing a title insurance product or service without the approval required by
4721 Section 31A-2-405 ; or
4722 (b) knowingly providing false or misleading information in the statement required by
4723 Subsection 31A-2-405 (2); or
4724 [
4725 and a sales agent as evidenced by a final judgment of a court.
4726 Section 90. Section 61-2f-402 , which is renumbered from Section 61-2-11.5 is
4727 renumbered and amended to read:
4728 [
4729 (1) The division may make [
4730 division considers necessary to determine whether [
4731 is about to violate this chapter or any rule or order under this chapter.
4732 (2) To aid in the enforcement of this chapter or in the prescribing of rules and forms
4733 under this chapter, the division may require or permit [
4734 writing, under oath or otherwise as to [
4735 be investigated.
4736 (3) For the purpose of the investigation described in Subsection (1), the division or
4737 [
4738 (a) administer an oath or affirmation;
4739 (b) subpoena witnesses and evidence;
4740 (c) take evidence;
4741 (d) require the production of a book, paper, contract, record, other document, or
4742 information relevant to the investigation; and
4743 (e) serve a subpoena by certified mail.
4744 (4) (a) A person shall pay the costs incurred by the division to copy a book, paper,
4745 contract, document, or record required under this chapter, including the costs incurred to copy
4746 an electronic book, paper, contract, document, or record in a universally readable format.
4747 (b) If a person fails to pay the costs described in Subsection (4)(a), the person's license,
4748 certification, or registration is automatically suspended:
4749 (i) beginning the day on which the payment of costs is due; and
4750 (ii) ending the day on which the costs are paid.
4751 Section 91. Section 61-2f-403 , which is renumbered from Section 61-2-24 is
4752 renumbered and amended to read:
4753 [
4754 (1) The division may audit principal brokers' trust accounts or other accounts in which
4755 a licensee maintains trust [
4756 opinion of the division, gross mismanagement, commingling, or misuse of [
4757 division, with the concurrence of the commission, may order a complete audit of the account
4758 by a certified public accountant at the licensee's expense, or take other action in accordance
4759 with Section [
4760 (2) The licensee may obtain agency review by the executive director or judicial review
4761 of any division order.
4762 (3) (a) If it appears that a person has grossly mismanaged, commingled, or otherwise
4763 misused trust [
4764 may bring an action:
4765 (i) in the district court of the district where:
4766 (A) the person resides [
4767 (B) the person maintains a place of business[
4768 (C) the act or practice occurred or is about to occur[
4769 (ii) to enjoin the [
4770 chapter or any rule or order under this chapter.
4771 (b) Upon a proper showing, [
4772 restraining order, and may appoint a receiver or conservator. The division is not required to
4773 post a bond in any court proceeding.
4774 Section 92. Section 61-2f-404 , which is renumbered from Section 61-2-12 is
4775 renumbered and amended to read:
4776 [
4777 (1) (a) On the basis of a violation of this chapter, the commission with the concurrence
4778 of the director, may issue an order:
4779 (i) imposing an educational requirement;
4780 (ii) imposing a civil penalty not to exceed the greater of:
4781 (A) [
4782 (B) the amount of any gain or economic benefit derived from each violation;
4783 (iii) taking any of the following actions related to a license, registration, or certificate:
4784 (A) revoking;
4785 (B) suspending;
4786 (C) placing on probation;
4787 (D) denying the renewal, reinstatement, or application for an original license,
4788 registration, or certificate; or
4789 (E) in the case of denial or revocation of a license, registration, or certificate, setting a
4790 waiting period for an applicant to apply for a license, registration, or certificate under this title;
4791 (iv) issuing a cease and desist order;
4792 (v) modifying an action described in Subsections (1)(a)(i) through (iv) if the
4793 commission finds that the person complies with court ordered restitution; or
4794 (vi) doing any combination of Subsections (1)(a)(i) through (v).
4795 (b) (i) If the commission with the concurrence of the director issues an order that
4796 orders a fine or educational requirements as part of a disciplinary action against a person,
4797 including a stipulation and order, the commission shall state in the order the deadline by which
4798 the person shall comply with the fine or educational requirements.
4799 (ii) If a person fails to comply by the stated deadline:
4800 (A) the person's license, registration, or certificate:
4801 (I) beginning the day specified in the order as the deadline for compliance; and
4802 (II) ending the day on which the person complies in full with the order; and
4803 (B) if the person fails to pay a fine required by an order, the division shall begin a
4804 collection process:
4805 (I) established by the division by rule made in accordance with Title 63G, Chapter 3,
4806 Utah Administrative Rulemaking Act; and
4807 (II) subject to Title 63A, Chapter 8, Office of State Debt Collection.
4808 [
4809 shall inform the principal broker with whom the licensee is affiliated of the charge and of the
4810 time and place of any hearing.
4811 (2) (a) An applicant, certificate holder, licensee, registrant, or person aggrieved,
4812 including the complainant, may obtain agency review by the executive director and judicial
4813 review of any adverse ruling, order, or decision of the division.
4814 (b) If an applicant, certificate holder, registrant, or licensee prevails in the appeal and
4815 the court finds that the state action was undertaken without substantial justification, the court
4816 may award reasonable litigation expenses to the applicant, certificate holder, registrant, or
4817 licensee as provided under Title 78B, Chapter 8, Part 5, Small Business Equal Access to
4818 Justice Act.
4819 (c) (i) An order, ruling, or decision of the division shall take effect and become
4820 operative 30 days after the service of the order, ruling, or decision unless otherwise provided in
4821 the order.
4822 (ii) If an appeal is taken by a licensee, registrant, or certificate holder, the division may
4823 stay enforcement of an order, ruling, or decision in accordance with Section 63G-4-405 .
4824 (iii) An appeal is governed by the Utah Rules of Appellate Procedure.
4825 (3) The commission and the director shall comply with the procedures and
4826 requirements of Title 63G, Chapter 4, Administrative Procedures Act, in an adjudicative
4827 proceeding.
4828 Section 93. Section 61-2f-405 , which is renumbered from Section 61-2-17 is
4829 renumbered and amended to read:
4830 [
4831 penalties.
4832 (1) (a) An individual required to be licensed under this chapter who violates this
4833 chapter, in addition to being subject to a license sanction or a fine ordered by the commission,
4834 is, upon conviction of a first violation, guilty of a class A misdemeanor.
4835 (b) For a conviction under this Subsection (1)[
4836 not to exceed six months.
4837 [
4838
4839 (2) (a) Upon conviction of a second or subsequent violation, an individual is guilty of a
4840 third degree felony.
4841 (b) Imprisonment for a conviction under this Subsection (2)(a) shall be for a term not
4842 to exceed two years.
4843 [
4844
4845 (3) An officer or agent of a corporation, [
4846 association, or an individual in a similar position of another type of entity who personally
4847 participates in or is an accessory to any violation of this chapter by the [
4848
4849 (4) If a person receives money or its equivalent, as commission, compensation, or
4850 profit by or in consequence of a violation of this chapter, that person is liable for an additional
4851 penalty of not less than the amount of the money received and not more than three times the
4852 amount of money received, as may be determined by the court. This penalty may be sued for in
4853 any court of competent jurisdiction, and recovered by any person aggrieved for the person's
4854 own use and benefit.
4855 (5) A fine imposed by the commission and the director under this chapter shall,
4856 notwithstanding Section 13-1-2 , be deposited into the Real Estate Education, Research, and
4857 Recovery Fund to be used in a manner consistent with the requirements of [
4858 Real Estate Education, Research, and Recovery Fund Act.
4859 Section 94. Section 61-2f-406 , which is renumbered from Section 61-2-13 is
4860 renumbered and amended to read:
4861 [
4862 Automatic inactivation of affiliated associate brokers and sales agents licenses.
4863 (1) (a) An unlawful act or violation of this chapter committed by a person listed in
4864 Subsection (1)(b) is cause for:
4865 (i) the revocation, suspension, or probation of a principal broker's license; or
4866 (ii) the imposition of a fine against the principal broker in an amount not to exceed
4867 [
4868 (b) Subsection (1)(a) applies to an act or violation by any of the following:
4869 (i) a [
4870 broker;
4871 (ii) a [
4872 by or on behalf of a [
4873 (iii) an employee, officer, or member of a [
4874 (2) (a) The revocation or suspension of a principal broker license automatically
4875 inactivates an associate broker or sales agent license granted to [
4876 reason of that [
4877 revoked or suspended, pending a change of principal broker affiliation.
4878 (b) A principal broker shall, before the effective date of a suspension or revocation of
4879 the principal broker's license, notify in writing every licensee affiliated with the principal
4880 broker of the revocation or suspension of the principal broker license.
4881 Section 95. Section 61-2f-407 , which is renumbered from Section 61-2-21 is
4882 renumbered and amended to read:
4883 [
4884 (1) (a) The director shall issue and serve upon a person an order directing that person to
4885 cease and desist from an act if:
4886 (i) the director has reason to believe that the person has been engaging, is about to
4887 engage, or is engaging in the act constituting a violation of this chapter; and
4888 (ii) it appears to the director that it would be in the public interest to stop the act.
4889 (b) Within 10 days after receiving the order, the person upon whom the order is served
4890 may request a hearing.
4891 (c) Pending a hearing requested under Subsection (1)(b), a cease and desist order shall
4892 remain in effect.
4893 (d) If a request for a hearing is made, the division shall follow the procedures and
4894 requirements of Title 63G, Chapter 4, Administrative Procedures Act.
4895 (2) (a) After a hearing requested under Subsection (1), if the commission and the
4896 director agree that an act of the person violates this chapter, the director:
4897 (i) shall issue an order making the order issued under Subsection (1) permanent; and
4898 (ii) may impose another disciplinary action under Section [
4899 (b) The director shall file suit in the name of the Department of Commerce and the
4900 Division of Real Estate, in the district court in the county in which an act described in
4901 Subsection (1) occurs or where the person resides or carries on business, to enjoin and restrain
4902 the person from violating this chapter if:
4903 (i) (A) a hearing is not requested under Subsection (1); and
4904 (B) the person fails to cease the act described in Subsection (1); or
4905 (ii) after discontinuing the act described in Subsection (1), the person again
4906 commences the act.
4907 (c) A district court of this state has jurisdiction of an action brought under this section.
4908 (d) Upon a proper showing in an action brought under this section or upon a conviction
4909 under Section 76-6-1203 , the court may:
4910 (i) issue a permanent or temporary, prohibitory or mandatory injunction;
4911 (ii) issue a restraining order or writ of mandamus;
4912 (iii) enter a declaratory judgment;
4913 (iv) appoint a receiver or conservator for the defendant or the defendant's assets;
4914 (v) order disgorgement;
4915 (vi) order rescission;
4916 (vii) impose a civil penalty not to exceed the greater of:
4917 (A) [
4918 (B) the amount of any gain or economic benefit derived from a violation; and
4919 (viii) enter any other relief the court considers just.
4920 (e) The court may not require the division to post a bond in an action brought under
4921 this Subsection (2).
4922 (3) [
4923
4924 (4) A remedy or action provided in this section does not limit, interfere with, or prevent
4925 the prosecution of another remedy or action, including a criminal proceeding.
4926 Section 96. Section 61-2f-408 , which is renumbered from Section 61-2-13.5 is
4927 renumbered and amended to read:
4928 [
4929 The division shall promptly withhold, suspend, restrict, or reinstate the use of a license
4930 issued under this chapter if so ordered by a court.
4931 Section 97. Section 61-2f-409 , which is renumbered from Section 61-2-18 is
4932 renumbered and amended to read:
4933 [
4934 (1) [
4935 recovery of a commission, fee, or compensation for any act done or service rendered which is
4936 prohibited under this chapter to other than [
4937 [
4938 (2) [
4939 own name for the recovery of a fee, commission, or compensation for services as a sales agent
4940 or associate broker unless the action is against the principal broker with whom [
4941 agent or associate broker is or was [
4942 (b) An action for the recovery of a fee, commission, or other compensation may only
4943 be instituted and brought by the principal broker with whom [
4944 broker is affiliated.
4945 Section 98. Section 61-2f-501 , which is renumbered from Section 61-2a-1 is
4946 renumbered and amended to read:
4947
4948 [
4949 This [
4950 Research, and Recovery Fund Act."
4951 Section 99. Section 61-2f-502 , which is renumbered from Section 61-2a-2 is
4952 renumbered and amended to read:
4953 [
4954 [
4955 [
4956
4957
4958 [
4959
4960
4961 [
4962
4963 [
4964 [
4965 [
4966 For purposes of this part:
4967 (1) "Civil judgment" means a judgment in a civil action that:
4968 (a) is awarded in an action brought against a real estate licensee on the basis of fraud,
4969 misrepresentation, or deceit in a residential mortgage loan transaction; and
4970 (b) awards actual damages.
4971 (2) "Criminal restitution judgment" means a judgment that, in accordance with the
4972 Utah Code of Criminal Procedure, orders criminal restitution to a person and against a real
4973 estate licensee for a criminal offense involving fraud, misrepresentation, or deceit in a
4974 residential mortgage loan transaction.
4975 (3) "Final judgment" means one of the following judgments upon termination of the
4976 proceedings related to the judgment, including appeals:
4977 (a) a civil judgment; or
4978 (b) a criminal restitution judgment.
4979 [
4980 created in Section [
4981 [
4982 Section 100. Section 61-2f-503 , which is renumbered from Section 61-2a-3 is
4983 renumbered and amended to read:
4984 [
4985 (1) (a) There is created a restricted special revenue fund [
4986 Estate Education, Research, and Recovery Fund."
4987 (b) The actual interest earned on the fund shall be deposited into the fund.
4988 [
4989
4990
4991 (2) The money in the fund includes:
4992 (a) a fee imposed under Section 61-2f-505 ; and
4993 (b) interest described in Subsection (1)(b).
4994 (3) The division shall administer the fund to:
4995 (a) reimburse the public for damages caused in a real estate transaction by an
4996 individual licensed under this chapter; and
4997 (b) in accordance with Section 61-2f-504 :
4998 (i) investigate violations of this chapter related to fraud, misrepresentation, or deceit; or
4999 (ii) provide revenue for improving the real estate profession through education and
5000 research with the goal of making licensees more responsible to the public.
5001 (4) This part applies to damages caused by an individual licensee. Reimbursement
5002 may not be made for a final judgment against an entity.
5003 (5) At the beginning of each fiscal year, the division shall make available $100,000 in
5004 the fund to satisfy final judgments rendered against a person licensed under this chapter.
5005 Section 101. Section 61-2f-504 , which is renumbered from Section 61-2a-12 is
5006 renumbered and amended to read:
5007 [
5008 (1) Money accumulated in the fund in excess of $100,000 shall be set aside and
5009 segregated to be used by the division to:
5010 (a) investigate violations of this chapter [
5011 to fraud, misrepresentation, or deceit; and
5012 (b) advance education and research in the field of real estate.
5013 (2) The division may [
5014 only in a manner consistent with Subsection (1), including for [
5015 (a) sponsored by the division;
5016 (b) offered by the division in conjunction with any university or college in the state; or
5017 (c) provided for by contracting for a particular research project in the field of real estate
5018 for the state.
5019 Section 102. Section 61-2f-505 , which is renumbered from Section 61-2a-4 is
5020 renumbered and amended to read:
5021 [
5022 (1) [
5023 [
5024 reasonable annual fee of up to $18, as determined by the division with the concurrence of the
5025 commission. An individual who is an associate broker is required to pay the fee under this
5026 Subsection (1).
5027 (2) [
5028 license shall pay in addition to the application or renewal fee a reasonable annual fee of up to
5029 $12, as determined by the division with the concurrence of the commission.
5030 (3) Notwithstanding Section 13-1-2 , the additional fees under this section shall be paid
5031 into the fund [
5032 Section 103. Section 61-2f-506 , which is renumbered from Section 61-2a-5 is
5033 renumbered and amended to read:
5034 [
5035 (1) [
5036 the fund [
5037 (a) the person obtains a final judgment;
5038 (b) the person complies with the requirements under this part;
5039 (c) the person is not substantially complicit in the fraud, misrepresentation, or deceit
5040 that is the basis of the claim; and
5041 (d) the final judgment that is the basis for the claim:
5042 (i) has not been discharged in bankruptcy; and
5043 (ii) when a bankruptcy proceeding is open or commenced during the pendency of the
5044 claim, the person obtains an order from the bankruptcy court declaring the final judgment and
5045 related debt to be nondischargeable.
5046 (2) (a) A person may not bring a claim against the fund for money owed under a civil
5047 judgment unless, within 10 business days of the day on which the person brings the civil action
5048 that results in the civil judgment, the person sends to the division a signed notification [
5049
5050 misrepresentation, or deceit by a real estate licensee.
5051 (b) Within 30 days [
5052 a notice under Subsection (1), the division has an unconditional right to intervene in the civil
5053 action.
5054 [
5055
5056
5057
5058 (3) (a) After obtaining a final judgment, to file a claim against the fund, a person shall:
5059 (i) file a verified petition in the court where the final judgment [
5060 seeking an order directing payment from the fund [
5061 uncollected actual damages [
5062 judgment that are unpaid;
5063 (ii) serve a copy of the verified petition described in Subsection (3)(a)(i) on the
5064 division; and
5065 (iii) file a copy of the affidavit of service of the verified petition with the court.
5066 [
5067 (i) punitive damages;
5068 (ii) attorney fees;
5069 (iii) interest; or
5070 (iv) court costs.
5071 [
5072 residential real estate transaction, the liability of the fund may not exceed:
5073 (i) $15,000 for a single transaction; and
5074 (ii) $50,000 for one licensee.
5075 [
5076
5077 [
5078
5079
5080 (5) Subject to Subsection (6), a court may order payment from the fund under this
5081 section only if the person who files the petition shows that the person:
5082 (a) [
5083 (i) in the case of a civil judgment, the spouse of the judgment debtor [
5084 (ii) in the case of a criminal judgment, the spouse of the criminal defendant; or
5085 (iii) a personal representative of [
5086 (5)(a)(i) or (ii);
5087 (b) [
5088 (c) [
5089 (i) is issued by the court in the manner prescribed under this section[
5090 (ii) indicates the amount of the final judgment awarded;
5091 (d) [
5092 date [
5093 (e) (i) (A) [
5094 and
5095 (B) has received a return made by the officer executing the writ [
5096 showing that no property subject to execution in satisfaction of the final judgment could be
5097 found; or
5098 [
5099 defendant:
5100 [
5101 (A) has not realized an amount sufficient to satisfy the final judgment; and
5102 [
5103 (B) is owed a specific balance remaining on the final judgment after application of the
5104 amount realized;
5105 [
5106 the judgment debtor or criminal defendant has any interest in property, real or personal, that
5107 may satisfy the final judgment; and
5108 [
5109 final judgment from the assets of the judgment debtor or criminal defendant.
5110 [
5111 practicable for the petitioner to comply with one or more of the requirements enumerated in
5112 Subsections [
5113 [
5114
5115 [
5116
5117
5118 [
5119
5120 Section 104. Section 61-2f-507 , which is renumbered from Section 61-2a-6 is
5121 renumbered and amended to read:
5122 [
5123 [
5124
5125 (1) When the division is served a petition under Section 61-2f-506 , the division may:
5126 (a) file an answer to the petition in the court;
5127 (b) initiate a review proceeding conducted by the division; or
5128 (c) appear in any proceeding in the name of the defendant to the action or on behalf of
5129 the fund.
5130 [
5131
5132 (2) The division may settle a claim against the fund if:
5133 (a) the person who brings the claim requests a settlement; and
5134 (b) the court in which the petition is filed approves the settlement.
5135 Section 105. Section 61-2f-508 , which is renumbered from Section 61-2a-7 is
5136 renumbered and amended to read:
5137 [
5138 If [
5139
5140 claim under this part, in its order the court shall [
5141 [
5142 judgment that is payable from the fund [
5143 Section 61-2f-506 .
5144 Section 106. Section 61-2f-509 , which is renumbered from Section 61-2a-8 is
5145 renumbered and amended to read:
5146 [
5147 interest.
5148 If [
5149
5150
5151 61-2f-508 , when sufficient money [
5152 (1) satisfy the unpaid claims in the order that [
5153 originally filed[
5154 (2) pay with the claim accumulated interest at the rate of 8% per annum.
5155 Section 107. Section 61-2f-510 , which is renumbered from Section 61-2a-9 is
5156 renumbered and amended to read:
5157 [
5158 revoke license.
5159 (1) (a) If the division [
5160
5161 subrogated to the rights of the [
5162 paid out of the fund [
5163 (b) The division shall deposit in the fund any amount and interest recovered by the
5164 division [
5165 (2) (a) The license of a real estate licensee for whom payment from the fund is made
5166 under this chapter shall be automatically revoked.
5167 (b) [
5168 may not apply for a new license [
5169 (i) the amount paid [
5170 based on a final judgment against the person; and
5171 (ii) interest at a rate determined by the division with the concurrence of the
5172 commission[
5173 Section 108. Section 61-2f-511 , which is renumbered from Section 61-2a-11 is
5174 renumbered and amended to read:
5175 [
5176 (1) [
5177 the director of the division to take disciplinary action against a real estate licensee for a
5178 violation of [
5179 and division.
5180 (2) [
5181 licensee's payment of all the obligations of the real estate licensee to the fund does not nullify
5182 or modify the effect of any other disciplinary proceeding brought pursuant to [
5183
5184 Section 109. Section 61-2f-512 , which is renumbered from Section 61-2a-10 is
5185 renumbered and amended to read:
5186 [
5187 [
5188
5189 under this part.
5190 Section 110. Section 63G-2-302 is amended to read:
5191 63G-2-302. Private records.
5192 (1) The following records are private:
5193 (a) records concerning an individual's eligibility for unemployment insurance benefits,
5194 social services, welfare benefits, or the determination of benefit levels;
5195 (b) records containing data on individuals describing medical history, diagnosis,
5196 condition, treatment, evaluation, or similar medical data;
5197 (c) records of publicly funded libraries that when examined alone or with other records
5198 identify a patron;
5199 (d) records received or generated for a Senate or House Ethics Committee concerning
5200 any alleged violation of the rules on legislative ethics, prior to the meeting, and after the
5201 meeting, if the ethics committee meeting was closed to the public;
5202 (e) records received or generated for a Senate confirmation committee concerning
5203 character, professional competence, or physical or mental health of an individual:
5204 (i) if prior to the meeting, the chair of the committee determines release of the records:
5205 (A) reasonably could be expected to interfere with the investigation undertaken by the
5206 committee; or
5207 (B) would create a danger of depriving a person of a right to a fair proceeding or
5208 impartial hearing; and
5209 (ii) after the meeting, if the meeting was closed to the public;
5210 (f) employment records concerning a current or former employee of, or applicant for
5211 employment with, a governmental entity that would disclose that individual's home address,
5212 home telephone number, Social Security number, insurance coverage, marital status, or payroll
5213 deductions;
5214 (g) records or parts of records under Section 63G-2-303 that a current or former
5215 employee identifies as private according to the requirements of that section;
5216 (h) that part of a record indicating a person's Social Security number or federal
5217 employer identification number if provided under Section 31A-23a-104 , 31A-25-202 ,
5218 31A-26-202 , 58-1-301 , 61-1-4 , or [
5219 (i) that part of a voter registration record identifying a voter's driver license or
5220 identification card number, Social Security number, or last four digits of the Social Security
5221 number;
5222 (j) a record that:
5223 (i) contains information about an individual;
5224 (ii) is voluntarily provided by the individual; and
5225 (iii) goes into an electronic database that:
5226 (A) is designated by and administered under the authority of the Chief Information
5227 Officer; and
5228 (B) acts as a repository of information about the individual that can be electronically
5229 retrieved and used to facilitate the individual's online interaction with a state agency;
5230 (k) information provided to the Commissioner of Insurance under:
5231 (i) Subsection 31A-23a-115 (2)(a);
5232 (ii) Subsection 31A-23a-302 (3); or
5233 (iii) Subsection 31A-26-210 (3);
5234 (l) information obtained through a criminal background check under Title 11, Chapter
5235 40, Criminal Background Checks by Political Subdivisions Operating Water Systems;
5236 (m) information provided by an offender that is:
5237 (i) required by the registration requirements of Section 77-27-21.5 ; and
5238 (ii) not required to be made available to the public under Subsection 77-27-21.5 (27);
5239 and
5240 (n) a statement and any supporting documentation filed with the attorney general in
5241 accordance with Section 34-45-107 , if the federal law or action supporting the filing involves
5242 homeland security.
5243 (2) The following records are private if properly classified by a governmental entity:
5244 (a) records concerning a current or former employee of, or applicant for employment
5245 with a governmental entity, including performance evaluations and personal status information
5246 such as race, religion, or disabilities, but not including records that are public under Subsection
5247 63G-2-301 (2)(b) or 63G-2-301 (3)(o), or private under Subsection (1)(b);
5248 (b) records describing an individual's finances, except that the following are public:
5249 (i) records described in Subsection 63G-2-301 (2);
5250 (ii) information provided to the governmental entity for the purpose of complying with
5251 a financial assurance requirement; or
5252 (iii) records that must be disclosed in accordance with another statute;
5253 (c) records of independent state agencies if the disclosure of those records would
5254 conflict with the fiduciary obligations of the agency;
5255 (d) other records containing data on individuals the disclosure of which constitutes a
5256 clearly unwarranted invasion of personal privacy;
5257 (e) records provided by the United States or by a government entity outside the state
5258 that are given with the requirement that the records be managed as private records, if the
5259 providing entity states in writing that the record would not be subject to public disclosure if
5260 retained by it; and
5261 (f) any portion of a record in the custody of the Division of Aging and Adult Services,
5262 created in Section 62A-3-102 , that may disclose, or lead to the discovery of, the identity of a
5263 person who made a report of alleged abuse, neglect, or exploitation of a vulnerable adult.
5264 (3) (a) As used in this Subsection (3), "medical records" means medical reports,
5265 records, statements, history, diagnosis, condition, treatment, and evaluation.
5266 (b) Medical records in the possession of the University of Utah Hospital, its clinics,
5267 doctors, or affiliated entities are not private records or controlled records under Section
5268 63G-2-304 when the records are sought:
5269 (i) in connection with any legal or administrative proceeding in which the patient's
5270 physical, mental, or emotional condition is an element of any claim or defense; or
5271 (ii) after a patient's death, in any legal or administrative proceeding in which any party
5272 relies upon the condition as an element of the claim or defense.
5273 (c) Medical records are subject to production in a legal or administrative proceeding
5274 according to state or federal statutes or rules of procedure and evidence as if the medical
5275 records were in the possession of a nongovernmental medical care provider.
5276 Section 111. Section 63J-1-602 is amended to read:
5277 63J-1-602. Nonlapsing accounts and funds.
5278 (1) The following revenue collections, appropriations from a fund or account, and
5279 appropriations to a program are nonlapsing:
5280 (a) appropriations made to the Legislature and its committees;
5281 (b) funds collected by the grain grading program, as provided in Section 4-2-2 ;
5282 (c) the Salinity Offset Fund created in Section 4-2-8.5 ;
5283 (d) the Invasive Species Mitigation Fund created in Section 4-2-8.7 ;
5284 (e) funds collected by pesticide dealer license registration fees, as provided in Section
5285 4-14-3 ;
5286 (f) funds collected by pesticide applicator business registration fees, as provided in
5287 Section 4-14-13 ;
5288 (g) the Rangeland Improvement Fund created in Section 4-20-2 ;
5289 (h) funds deposited as dedicated credits under the Insect Infestation Emergency Control
5290 Act, as provided in Section 4-35-6 ;
5291 (i) the Percent-for-Art Program created in Section 9-6-404 ;
5292 (j) the Centennial History Fund created in Section 9-8-604 ;
5293 (k) the Uintah Basin Revitalization Fund, as provided in Section 9-10-108 ;
5294 (l) the Navajo Revitalization Fund created in Section 9-11-104 ;
5295 (m) the LeRay McAllister Critical Land Conservation Program created in Section
5296 11-38-301 ;
5297 (n) the Clean Fuels and Vehicle Technology Fund created in Section 19-1-403 ;
5298 (o) fees deposited as dedicated credits for hazardous waste plan reviews, as provided in
5299 Section 19-6-120 ;
5300 (p) an appropriation made to the Division of Wildlife Resources for the appraisal and
5301 purchase of lands under the Pelican Management Act, as provided in Section 23-21a-6 ;
5302 (q) award monies under the Crime Reduction Assistance Program, as provided under
5303 Section 24-1-19 ;
5304 (r) funds collected from the emergency medical services grant program, as provided in
5305 Section 26-8a-207 ;
5306 (s) fees and other funding available to purchase training equipment and to administer
5307 tests and conduct quality assurance reviews, as provided in Section 26-8a-208 ;
5308 (t) funds collected as a result of a sanction under Section 1919 of Title XIX of the
5309 federal Social Security Act, as provided in Section 26-18-3 ;
5310 (u) the Utah Health Care Workforce Financial Assistance Program created in Section
5311 26-46-102 ;
5312 (v) monies collected from subscription fees for publications prepared or distributed by
5313 the insurance commissioner, as provided in Section 31A-2-208 ;
5314 (w) monies received by the Insurance Department for administering, investigating
5315 under, and enforcing the Insurance Fraud Act, as provided in Section 31A-31-108 ;
5316 (x) certain monies received for penalties paid under the Insurance Fraud Act, as
5317 provided in Section 31A-31-109 ;
5318 (y) the fund for operating the state's Federal Health Care Tax Credit Program, as
5319 provided in Section 31A-38-104 ;
5320 (z) certain funds in the Department of Workforce Services' program for the education,
5321 training, and transitional counseling of displaced homemakers, as provided in Section
5322 35A-3-114 ;
5323 (aa) the Employment Security Administration Fund created in Section 35A-4-505 ;
5324 (bb) the Special Administrative Expense Fund created in Section 35A-4-506 ;
5325 (cc) funding for a new program or agency that is designated as nonlapsing under
5326 Section 36-24-101 ;
5327 (dd) the Oil and Gas Conservation Account created in Section 40-6-14.5 ;
5328 (ee) funds available to the State Tax Commission for purchase and distribution of
5329 license plates and decals, as provided in Section 41-1a-1201 ;
5330 (ff) certain fees for the cost of electronic payments under the Motor Vehicle Act, as
5331 provided in Section 41-1a-1221 ;
5332 (gg) certain fees collected for administering and enforcing the Motor Vehicle Business
5333 Regulation Act, as provided in Section 41-3-601 ;
5334 (hh) certain fees for the cost of electronic payments under the Motor Vehicle Business
5335 Regulation Act, as provided in Section 41-3-604 ;
5336 (ii) the Off-Highway Access and Education Restricted Account created in Section
5337 41-22-19.5 ;
5338 (jj) certain fees for the cost of electronic payments under the Motor Vehicle Act, as
5339 provided in Section 41-22-36 ;
5340 (kk) monies collected under the Notaries Public Reform Act, as provided under
5341 46-1-23 ;
5342 (ll) certain funds associated with the Law Enforcement Operations Account, as
5343 provided in Section 51-9-411 ;
5344 (mm) the Public Safety Honoring Heroes Restricted Account created in Section
5345 53-1-118 ;
5346 (nn) funding for the Search and Rescue Financial Assistance Program, as provided in
5347 Section 53-2-107 ;
5348 (oo) appropriations made to the Department of Public Safety from the Department of
5349 Public Safety Restricted Account, as provided in Section 53-3-106 ;
5350 (pp) appropriations to the Motorcycle Rider Education Program, as provided in Section
5351 53-3-905 ;
5352 (qq) fees collected by the State Fire Marshal Division under the Utah Fire Prevention
5353 and Safety Act, as provided in Section 53-7-314 ;
5354 (rr) the DNA Specimen Restricted Account created in Section 53-10-407 ;
5355 (ss) the minimum school program, as provided in Section 53A-17a-105 ;
5356 (tt) certain funds appropriated from the Uniform School Fund to the State Board of
5357 Education for new teacher bonus and performance-based compensation plans, as provided in
5358 Section 53A-17a-148 ;
5359 (uu) certain funds appropriated from the Uniform School Fund to the State Board of
5360 Education for implementation of proposals to improve mathematics achievement test scores, as
5361 provided in Section 53A-17a-152 ;
5362 (vv) the School Building Revolving Account created in Section 53A-21-401 ;
5363 (ww) monies received by the State Office of Rehabilitation for the sale of certain
5364 products or services, as provided in Section 53A-24-105 ;
5365 (xx) the State Board of Regents, as provided in Section 53B-6-104 ;
5366 (yy) certain funds appropriated from the General Fund to the State Board of Regents
5367 for teacher preparation programs, as provided in Section 53B-6-104 ;
5368 (zz) a certain portion of monies collected for administrative costs under the School
5369 Institutional Trust Lands Management Act, as provided under Section 53C-3-202 ;
5370 (aaa) certain surcharges on residence and business telecommunications access lines
5371 imposed by the Public Service Commission, as provided in Section 54-8b-10 ;
5372 (bbb) certain fines collected by the Division of Occupational and Professional
5373 Licensing for violation of unlawful or unprofessional conduct that are used for education and
5374 enforcement purposes, as provided in Section 58-17b-505 ;
5375 (ccc) the Nurse Education and Enforcement Fund created in Section 58-31b-103 ;
5376 (ddd) funding of the controlled substance database, as provided in Section 58-37-7.7 ;
5377 (eee) the Certified Nurse Midwife Education and Enforcement Fund created in Section
5378 58-44a-103 ;
5379 (fff) funding for the building inspector's education program, as provided in Section
5380 58-56-9 ;
5381 (ggg) certain fines collected by the Division of Occupational and Professional
5382 Licensing for use in education and enforcement of the Security Personnel Licensing Act, as
5383 provided in Section 58-63-103 ;
5384 (hhh) the Professional Geologist Education and Enforcement Fund created in Section
5385 58-76-103 ;
5386 (iii) certain monies in the Water Resources Conservation and Development Fund, as
5387 provided in Section 59-12-103 ;
5388 (jjj) funds paid to the Division of Real Estate for the cost of a criminal background
5389 check for principal broker and sales agent licenses, as provided in Section [
5390 (kkk) the Utah Housing Opportunity Restricted Account created in Section [
5391 61-2-204 ;
5392 (lll) funds paid to the Division of Real Estate for the cost of a criminal background
5393 check for a mortgage loan license, as provided in Section 61-2c-202 ;
5394 (mmm) funds paid to the Division of Real Estate in relation to examination of records
5395 in an investigation, as provided in Section 61-2c-401 ;
5396 (nnn) certain funds donated to the Department of Human Services, as provided in
5397 Section 62A-1-111 ;
5398 (ooo) certain funds donated to the Division of Child and Family Services, as provided
5399 in Section 62A-4a-110 ;
5400 (ppp) the Mental Health Therapist Grant and Scholarship Program, as provided in
5401 Section 62A-13-109 ;
5402 (qqq) assessments for DUI violations that are forwarded to an account created by a
5403 county treasurer, as provided in Section 62A-15-503 ;
5404 (rrr) appropriations to the Division of Services for People with Disabilities, as provided
5405 in Section 62A-5-102 ;
5406 (sss) certain donations to the Division of Substance Abuse and Mental Health, as
5407 provided in Section 62A-15-103 ;
5408 (ttt) certain funds received by the Division of Parks and Recreation from the sale or
5409 disposal of buffalo, as provided under Section 63-11-19.2 ;
5410 (uuu) revenue for golf user fees at the Wasatch Mountain State Park, Palisades State
5411 Park, or Jordan River State Park, as provided under Section 63-11-19.5 ;
5412 (vvv) revenue for golf user fees at the Green River State Park, as provided under
5413 Section 63-11-19.6 ;
5414 (www) the Centennial Nonmotorized Paths and Trail Crossings Program created under
5415 Section 63-11a-503 ;
5416 (xxx) the Bonneville Shoreline Trail Program created under Section 63-11a-504 ;
5417 (yyy) the account for the Utah Geological Survey, as provided in Section 63-73-10 ;
5418 (zzz) the Risk Management Fund created under Section 63A-4-201 ;
5419 (aaaa) the Child Welfare Parental Defense Fund created in Section 63A-11-203 ;
5420 (bbbb) the Constitutional Defense Restricted Account created in Section 63C-4-103 ;
5421 (cccc) a portion of the funds appropriated to the Utah Seismic Safety Commission, as
5422 provided in Section 63C-6-104 ;
5423 (dddd) funding for the Medical Education Program administered by the Medical
5424 Education Council, as provided in Section 63C-8-102 ;
5425 (eeee) certain monies payable for commission expenses of the Pete Suazo Utah
5426 Athletic Commission, as provided under Section 63C-11-301 ;
5427 (ffff) funds collected for publishing the Division of Administrative Rules' publications,
5428 as provided in Section 63G-3-402 ;
5429 (gggg) the appropriation to fund the Governor's Office of Economic Development's
5430 Enterprise Zone Act, as provided in Section 63M-1-416 ;
5431 (hhhh) the Tourism Marketing Performance Account, as provided in Section
5432 63M-1-1406 ;
5433 (iiii) certain funding for rural development provided to the Office of Rural
5434 Development in the Governor's Office of Economic Development, as provided in Section
5435 63M-1-1604 ;
5436 (jjjj) certain monies in the Development for Disadvantaged Rural Communities
5437 Restricted Account, as provided in Section 63M-1-2003 ;
5438 (kkkk) appropriations to the Utah Science Technology and Research Governing
5439 Authority, created under Section 63M-2-301 , as provided under Section 63M-3-302 ;
5440 (llll) certain monies in the Rural Broadband Service Fund, as provided in Section
5441 63M-1-2303 ;
5442 (mmmm) funds collected from monthly offender supervision fees, as provided in
5443 Section 64-13-21.2 ;
5444 (nnnn) funds collected by the housing of state probationary inmates or state parole
5445 inmates, as provided in Subsection 64-13e-104 (2);
5446 (oooo) the Sovereign Lands Management account created in Section 65A-5-1 ;
5447 (pppp) certain forestry and fire control funds utilized by the Division of Forestry, Fire,
5448 and State Lands, as provided in Section 65A-8-103 ;
5449 (qqqq) the Department of Human Resource Management user training program, as
5450 provided in Section 67-19-6 ;
5451 (rrrr) funds for the University of Utah Poison Control Center program, as provided in
5452 Section 69-2-5.5 ;
5453 (ssss) appropriations to the Transportation Corridor Preservation Revolving Loan
5454 Fund, as provided in Section 72-2-117 ;
5455 (tttt) appropriations to the Local Transportation Corridor Preservation Fund, as
5456 provided in Section 72-2-117.5 ;
5457 (uuuu) appropriations to the Tollway Restricted Special Revenue Fund, as provided in
5458 Section 77-2-120 ;
5459 (vvvv) appropriations to the Aeronautics Construction Revolving Loan Fund, as
5460 provided in Section 77-2-122 ;
5461 (wwww) appropriations to the State Park Access Highways Improvement Program, as
5462 provided in Section 72-3-207 ;
5463 (xxxx) the Traffic Noise Abatement Program created in Section 72-6-112 ;
5464 (yyyy) certain funds received by the Office of the State Engineer for well drilling fines
5465 or bonds, as provided in Section 73-3-25 ;
5466 (zzzz) certain monies appropriated to increase the carrying capacity of the Jordan River
5467 that are transferred to the Division of Parks and Recreation, as provided in Section 73-10e-1 ;
5468 (aaaaa) certain fees for the cost of electronic payments under the State Boating Act, as
5469 provided in Section 73-18-25 ;
5470 (bbbbb) certain monies appropriated from the Water Resources Conservation and
5471 Development Fund, as provided in Section 73-23-2 ;
5472 (ccccc) the Lake Powell Pipeline Project Operation and Maintenance Fund created in
5473 Section 73-28-404 ;
5474 (ddddd) certain funds in the Water Development and Flood Mitigation Reserve
5475 Account, as provided in Section 73-103-1 ;
5476 (eeeee) certain funds appropriated for compensation for special prosecutors, as
5477 provided in Section 77-10a-19 ;
5478 (fffff) the Indigent Aggravated Murder Defense Trust Fund created in Section
5479 77-32-601 ;
5480 (ggggg) the Indigent Felony Defense Trust Fund created in Section 77-32-701 ;
5481 (hhhhh) funds donated or paid to a juvenile court by private sources, as provided in
5482 Subsection 78A-6-203 (1)(c);
5483 (iiiii) a state rehabilitative employment program, as provided in Section 78A-6-210 ;
5484 and
5485 (jjjjj) fees from the issuance and renewal of licenses for certified court interpreters, as
5486 provided in Section 78B-1-146 .
5487 (2) No revenue collection, appropriation from a fund or account, or appropriation to a
5488 program may be treated as nonlapsing unless:
5489 (a) it is expressly referenced by this section;
5490 (b) it is designated in a condition of appropriation in the appropriations bill; or
5491 (c) nonlapsing authority is granted under Section 63J-1-603 .
5492 (3) Each legislative appropriations subcommittee shall review the accounts and funds
5493 that have been granted nonlapsing authority under this section or Section 63J-1-603 .
5494 Section 112. Section 70D-3-102 is amended to read:
5495 70D-3-102. Definitions.
5496 As used in this chapter:
5497 (1) "Administrative or clerical tasks" means:
5498 (a) the receipt, collection, and distribution of information common for the process or
5499 underwriting of a loan in the mortgage industry; and
5500 (b) a communication with a consumer to obtain information necessary for the
5501 processing or underwriting of a residential mortgage loan.
5502 (2) "Affiliate" shall be defined by the commissioner by rule made in accordance with
5503 Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
5504 (3) "Applicant" means an individual applying for a license under this chapter.
5505 (4) "Approved examination provider" means a person approved by the nationwide
5506 database as an approved test provider.
5507 (5) "Business as a loan originator" means for compensation or in the expectation of
5508 compensation to engage in an act that makes an individual a loan originator.
5509 (6) "Clerical or support duties" includes after the receipt of an application for a
5510 residential mortgage loan:
5511 (a) the receipt, collection, distribution, and analysis of information common for the
5512 processing or underwriting of a residential mortgage loan; and
5513 (b) communicating with a consumer to obtain the information necessary for the
5514 processing or underwriting of the residential mortgage loan, to the extent that the
5515 communication does not include:
5516 (i) offering or negotiating a residential mortgage loan rate or term; or
5517 (ii) counseling a consumer about a residential mortgage loan rate or term.
5518 (7) "Compensation" means anything of economic value that is paid, loaned, granted,
5519 given, donated, or transferred to an individual or entity for or in consideration of:
5520 (a) services;
5521 (b) personal or real property; or
5522 (c) another thing of value.
5523 (8) "Continuing education" means education taken by an individual licensed under this
5524 chapter in order to meet the education requirements imposed by Section 70D-3-303 to renew a
5525 license under this chapter.
5526 (9) "Covered subsidiary" means a subsidiary that is:
5527 (a) owned and controlled by a depository institution; and
5528 (b) regulated by a federal banking agency.
5529 (10) "Federal banking agency" means:
5530 (a) the Board of Governors of the Federal Reserve System;
5531 (b) the Comptroller of the Currency;
5532 (c) the Director of the Office of Thrift Supervision;
5533 (d) the National Credit Union Administration; or
5534 (e) the Federal Deposit Insurance Corporation.
5535 (11) "Licensee" means an individual licensed under this chapter.
5536 (12) (a) Except as provided in Subsection (12)(b), "loan originator" means an
5537 individual who for compensation or in the expectation of compensation:
5538 (i) takes a residential mortgage loan application; or
5539 (ii) offers or negotiates a term of a residential mortgage loan.
5540 (b) "Loan originator" does not include:
5541 (i) an individual who is engaged solely as a loan processor or underwriter;
5542 (ii) unless compensated by a lender, broker, other loan originator, or an agent of a
5543 lender, broker, or other loan originator, a person who:
5544 (A) only performs real estate brokerage activities; and
5545 (B) is licensed under Title 61, Chapter [
5546 Licensing and Practices Act;
5547 (iii) a person who is solely involved in extension of credit relating to a timeshare plan,
5548 as defined in 11 U.S.C. Sec. 101(53D); or
5549 (iv) an attorney licensed to practice law in this state who, in the course of the attorney's
5550 practice as an attorney, assists a person in obtaining a residential mortgage loan.
5551 (13) "Loan processor or underwriter" means an individual who as an employee
5552 performs clerical or support duties:
5553 (a) at the direction of and subject to the supervision and instruction of:
5554 (i) a licensee; or
5555 (ii) a registered loan originator; and
5556 (b) as an employee of:
5557 (i) the licensee; or
5558 (ii) a registered loan originator.
5559 (14) "Nationwide database" means the Nationwide Mortgage Licensing System and
5560 Registry, authorized under Secure and Fair Enforcement for Mortgage Licensing, 12 U.S.C.
5561 Sec. 5101, et seq.
5562 (15) "Nontraditional mortgage product" means a mortgage product other than a 30-year
5563 fixed rate mortgage.
5564 (16) "Owned and controlled by a depository institution" may be defined by rule made
5565 by the commissioner in accordance with Title 63G, Chapter 3, Utah Administrative
5566 Rulemaking Act.
5567 (17) "Prelicensing education" means education taken by an individual seeking to be
5568 licensed under this chapter in order to meet the education requirements imposed by Section
5569 70D-3-301 for an individual to obtain a license under this chapter.
5570 (18) "Registered loan originator" means an individual who:
5571 (a) engages in an act as a loan originator only as an employee of:
5572 (i) a depository institution;
5573 (ii) a covered subsidiary; or
5574 (iii) an institution regulated by the Farm Credit Administration; and
5575 (b) is registered with, and maintains a unique identifier through, the nationwide
5576 database.
5577 (19) (a) Subject to Subsection (19)(b), "residential mortgage loan" means:
5578 (i) a mortgage loan; or
5579 (ii) a loan that is:
5580 (A) secured by a mortgage; and
5581 (B) subject to Title 70C, Utah Consumer Credit Code.
5582 (b) A loan described in Subsection (19)(a) is a "residential mortgage loan" only if the
5583 mortgage securing the loan is on:
5584 (i) a dwelling located in the state; or
5585 (ii) real property located in the state, upon which is constructed or intended to be
5586 constructed a dwelling.
5587 (20) "Unique identifier" is as defined in 12 U.S.C. Sec. 5102.
5588 Section 113. Section 72-5-116 is amended to read:
5589 72-5-116. Exemption from state licensure.
5590 In accordance with Section [
5591 working under the oversight of the department when engaging in an act on behalf of the
5592 department related to one or more of the following is exempt from licensure under Title 61,
5593 Chapter [
5594 (1) acquiring real [
5595 (2) disposing of real [
5596 (3) providing services that constitute property management, as defined in Section
5597 [
5598 (4) leasing of real [
5599 Section 114. Repealer.
5600 This bill repeals:
5601 Section 61-2-4, One act for compensation qualifies person as broker or sales agent.
5602 Section 61-2b-11, Curriculum to be determined by board.
5603 Section 61-2b-16, Certification and licensing examinations.
5604 Section 61-2c-207, Reciprocal licensure.
5605 Section 61-2c-208, Activation and inactivation of license.
Legislative Review Note
as of 1-26-10 11:31 AM