Section 331-A:1 Purpose

It is the policy of this state to regulate the practice of real estate brokers and salespersons in order to ensure that they meet and maintain minimum standards which promote public understanding and confidence in the business of real estate brokerage.

331-A:2 Definitions - In this chapter:

I. "Advance fees" mean any fees charged for services including, without any limitation, any fees charged for listing, advertising, or offering for sale or lease any real property. Advance fees shall not include fees paid solely for advertisement in a newspaper or other publication of general circulation.

I-a. "Agency" means a fiduciary relationship between a principal and an agent arising out of a brokerage agreement whereby the agent is engaged to do certain acts on behalf of the principal in dealings with a third party.

II. "Branch office" means a real estate broker's office other than the principal place of business.

III. "Broker" means any person acting for another on commission or for other compensation, for the promise of such commission or other compensation, or any person licensed under this chapter acting in the licensee's own behalf who:

  (a) Sells, exchanges, purchases, rents, or leases real estate.
  (b) Offers to sell, exchange, purchase, rent or lease real estate.
  (c) Negotiates, offers, attempts or agrees to negotiate the sale, exchange, purchase,
       rental or leasing of real estate.
  (d) Lists, offers, attempts or agrees to list real estate for sale, lease or exchange.
  (e) Buys, sells, offers to buy or sell, or otherwise deals in options on real estate or
       improvements on real estate.
  (f) Collects, offers, attempts or agrees to collect rent for the use of real estate.
  (g) Advertises or holds oneself out as being engaged in the business of buying,
       selling, exchanging, renting or leasing real estate.
  (h) Assists or directs in the procuring of prospects, calculated to result in the sale,
       exchange, lease, or rental of real estate.
  (i) Assists or directs in the negotiation of any transaction calculated or intended to
       result in the sale, exchange, leasing or rental of real estate.
  (j) Engages in the business of charging an advance fee in connection with any
       contract whereby the person undertakes to promote the sale or lease of real
       estate, through its listing in a publication or data base issued for such purpose,
       through referral of information concerning such real estate to brokers, or both.

III-a. "Brokerage agreement" means a written contract between a principal and a real estate brokerage firm intended to bring parties together for the sale, purchase, exchange, rent, or lease of real estate.

III-b. "Buyer" means a party in the transaction involved in the purchase or exchange of real estate.

III-c. "Buyer agent" means a licensee acting on the behalf of a buyer or tenant in the purchase, exchange, rent, or lease of real estate.

IV. "Commission" means the New Hampshire real estate commission.

IV-a. "Disclosed dual agent" means a licensee acting for more than one party whose interests may differ in a transaction with the knowledge and written consent of all parties for whom the licensee acts.

V. "Executive director" means the executive director of the New Hampshire real estate commission.

V-a. "Landlord" means a party in a transaction who owns real estate intended for rental or leasing purposes. For the purposes of this chapter, "landlord" shall also mean "lessor."

V-b. "Licensee" means a broker or salesperson licensed by the New Hampshire real estate commission under the provisions of this chapter.

VI. "Managing broker" means a broker who manages a branch office.

VI-a. "Ministerial acts" means acts of an administrative nature which licensees perform including showing property, preparing offers or agreements to sell, purchase, exchange, rent, or lease, and conveying those offers or agreements to the parties and providing information and assistance concerning professional services not related to the provisions of RSA 331-A.

VII. "Person" means an individual, corporation, partnership or association, both foreign and domestic.

VII-a. "Principal" means the party or parties to a real estate transaction who contract the services of a real estate brokerage firm to act on their behalf in a fiduciary relationship.

VIII. "Principal broker" means the individual broker, including the broker designated by a corporation, partnership or association, whom the New Hampshire real estate commission holds responsible for the actions of licensees who are assigned to such individual broker.

IX. "Real estate" means and includes leaseholds or any other interest or estate in land and business opportunities which involve any interest in real estate. It also includes the sale and resale of time share units and manufactured housing units, affixed to real estate.

X. "Salesperson" means an individual who is licensed under a broker to participate in any activity described in paragraph III of this section.

XI. "Seller" means a party in the transaction who owns the real estate intended for the sale or exchange of real estate.

XII. "Seller agent" means a licensee acting on the behalf of a seller or landlord in the sale, exchange, rent, or lease of real estate.

XIII. "Subagent" means any licensee engaged by the principal broker, under authority granted by the seller, landlord, buyer, or tenant, to perform agency functions on behalf of the seller, landlord, buyer, or tenant.

XIV. "Tenant" means a party who has entered, or is intending to enter, into a rental or lease arrangement with a landlord. For purposes of this chapter, "tenant" shall also mean "lessee."

331-A:3 Prohibition

It shall be unlawful for any person, directly or indirectly, to act as a real estate broker or real estate salesperson without a license and otherwise complying with the provisions of this chapter.

331-A:4 Exempted Classes

The provisions of this chapter shall not apply to an owner, builder or tenant of real estate or to his regular employees with respect to property owned or leased by him, or to a prospective purchaser or tenant of real estate or to his regular employees with respect to property sought to be acquired or leased by him, or to an attorney in fact under a duly executed power of attorney authorizing the consummation of a real estate transaction, or to an attorney at law in the performance of his duties as an attorney, or to an auctioneer selling at public auction, or to a public official in the conduct of his official duties, or to a person or his regular employees while such person is acting as a receiver, trustee, administrator, executor, conservator, guardian, or fiduciary, or while acting under court order, or while acting under the authority of a will, trust instrument, or other recorded instrument containing a power of sale, or to any person owning or operating a park, including his regular employees, in which manufactured housing to be sold or leased is located, who may, for a fee or commission or other valuable consideration, list, sell, purchase, exchange or lease such manufactured housing without a license of a broker or salesman.

331-A:5 Commission; Duty

I. There is hereby created the New Hampshire real estate commission whose duty shall be to administer this chapter.

III. Each member shall be appointed by the governor, with the approval of the council.

IV. The licensed real estate salesperson shall be a member as long as such person maintains status as a licensed real estate salesperson. The public member shall be a person who is not, and never was, a member of the real estate profession or the spouse of any such person, and who does not have, and never has had, a material financial interest in either the provision of real estate services or an activity directly related to real estate, including the representation of the commission or profession for a fee at any time during the 5 years preceding appointment.

V. Each member of the commission shall be a resident of this state for at least 6 years prior to appointment. Each member of the commission shall serve for a term of 5 years and until a successor is duly appointed. Any vacancy shall be filled by appointment for the unexpired term. No member may serve more than 2 consecutive full terms. Members of the commission may be removed for good cause.

VI. The commission shall annually elect, from among its members, a chairperson and a clerk. Each member of the commission shall receive $50 for each day actually engaged in the duties of the office, and shall be reimbursed for actual travel expenses while performing official duties.

VII. The commission shall adopt an official seal.

VIII. The commission shall hold at least 4 regular meetings each year. A simple majority of the commission members currently serving shall constitute a quorum of the commission.

IX. The commission shall make a biennial report to the governor and council on or before September 1 of each odd-numbered year. The report shall include an account of its actions, its receipts and expenses, the practical effects of the application of this chapter, and any recommendations for legislation.

331-A:6 Commission Administratively Attached

The commission shall be administratively attached, under RSA 21-G:10, to the department of state as provided in RSA 5:13-a.

331-A:7 Powers

In addition to any authority provided by law, the commission shall:

I. Appoint an executive director to assist the commission in administering this chapter.

II. Set all fees required in this chapter by rule under RSA 541-A.

III. Publish information relative to the scope of the examination and

IV. Charge a reasonable fee for the examination to cover the cost of administering the examination program. The commission may spend money from the examination fees to engage a qualified testing service selected by the commission to prepare, structure, administer and conduct the examination under the direction of the commission.

V. Conduct a hearing on an appeal of a denial of a license based on the applicant's failure to meet the minimum qualifications for licensure. The hearing shall be conducted pursuant to RSA 541-A.

VI. Issue orders, subpoenas, statements of charges, and statements of intent to deny licenses, and delegate in writing to a designee the authority to issue subpoenas, statements of charges, and statements of intent to deny licenses and conduct hearings in accordance with RSA 541-A, on the statements of charges and statements of intent to deny licenses.

VII. Provide notice in a publication of the commission sent by U.S. mail to all persons licensed under this chapter of any proposed rulemaking undertaken by the commission, any changes to administrative rules adopted by the commission, and any pertinent changes in New Hampshire law. The funds necessary for the printing, postage, and mailing of such notice shall be expended from funds of the commission not otherwise appropriated.

331-A:8 Powers of the Executive Director

In addition to any authority provided by law, the executive director shall:

I. Issue a license to any applicant who has met the requirements for licensure and deny a license to applicants who do not meet the minimum qualifications for licensure. Proceedings concerning the denial of licenses based on unprofessional conduct shall be conducted by the commission and governed by RSA 541-A.

II. Hire clerical, administrative and investigative staff as necessary to implement and administer this chapter, and hire individuals, including those licensed under this chapter, to serve as examiners or consultants as necessary to implement and administer this chapter.

III. Maintain the official department record of all applicants and licensees.

IV. Implement and administer a program for consumer education.

331-A:9 Ethics Code

The commission shall adopt by rule under RSA\541-A an ethics code for commissioners and commission employees. This code shall include, but not be limited to, the following provisions:

I. No commission member shall participate in any action related to the issuance of a license or disciplinary matter involving the member or a person with whom the member is personally or professionally associated, or in any such action in which the member has a direct financial interest.

II. No commission member shall, for compensation of any type, teach or participate in any continuing education effort approved by the commission, except that a commission member may, in such capacity, participate in a continuing education program and receive such compensation as is normally authorized for commission-related business.

III. No more than one commission member shall serve as an officer of a professional association which represents real estate brokers or salespeople.

331-A:10 Qualifications For Licensure

The executive director shall issue a license to any applicant who:

I. Has attained the age of majority.

II. Has successfully completed an examination administered or approved by the commission which demonstrates satisfactory knowledge and understanding of the principles of real estate practice. The executive director shall only accept for registration to take the examination for a broker's license, an applicant who:

III. Demonstrates no record of unprofessional conduct.

IV. Furnishes any evidence required by the commission relative to good reputation for honesty, trustworthiness and integrity.

V. For an individual broker license including a principal broker or a managing broker, but excluding a corporation, partnership, or association, files a surety bond with the commission which shall be held in accordance with RSA 331-A:13.

331-A:11 Examinations

I. Any applicant seeking an original salesperson's or broker's license shall first pass a reasonable written examination as to the applicant's qualifications to be a salesperson or broker.

II. The form and style of the examination, as well as the preparation, grading and administration of the examination, shall be the responsibility of the commission, or its duly appointed employees or agents.

III. The commission shall administer the examination at least 4 times a year.

IV. Within 30 days after an examination, the commission shall notify each candidate of the results of the candidate's examination.

V. Any person who has passed the examination for broker or salesperson shall become licensed within 6 months from the date of such examination. Any person who fails to become licensed within the 6-month period shall be required to retake the examination.

331-A:11-a Reciprocity For Licensure

If an applicant holds an active real estate license in good standing, and issued by examination in accordance with the laws of another jurisdiction, that applicant may apply for an original New Hampshire license by first taking the New Hampshire portion of the licensing examination, provided the jurisdiction that issued such nonresident license has previously entered into a licensing reciprocity agreement which has been approved by the commission, and provided that all of the other requirements of this chapter applicable to residents of New Hampshire have been met. This section applies to nonresident salesperson applicants only when such applicants are applying for an original New Hampshire salesperson license.

331-A:12 Application for Licensure

I. Applications for licenses shall be made on forms adopted by the commission.

II. The form for an individual applying for a license shall include affidavits from 3 character references. No person who is related by blood or marriage to an applicant may serve as a character reference on the application, and this restriction shall appear on the application form.

III. The commission may require each applicant to provide on the form additional information about the applicant's background and trustworthiness as is reasonably necessary to fairly inform a person requested to sign the application as a character reference and to fully complete the application before the character affidavits are signed.

IV. Applicants for a broker license for a corporation, partnership or association shall designate on the application form a duly licensed broker within the partnership or corporation who shall serve as the principal broker for the firm. All corporations shall provide a copy of the certificate of incorporation with the application for licensure.

331-A:12-a Inactive Licensure Status

I. Any licensee who does not want to perform as a broker or salesperson as defined in RSA 331-A:2, and who wants to preserve the license while not engaged in any brokerage activities, including the receiving of referral fees or any other form of compensation, may surrender that license to the commission for placement on inactive status. The commission shall place the licensee on inactive status only upon application by the licensee. While on inactive status, the licensee shall renew the license biennially by satisfying the renewal requirements under RSA 331-A:19 and the continuing education requirements adopted by the commission, but is not required to maintain a place of business, or in the case of licensed broker, to maintain a surety bond pursuant to RSA 331-A:14.

II. Any licensee on inactive license status may have the license reinstated to active status by demonstrating compliance in the previous biennium with the continuing education requirements adopted by the commission and applying to change status from inactive to active, and, in the case of a licensed broker, providing evidence of a surety bond as required by RSA 331-A:14.

331-A:13 Escrow Accounts of Broker; Interest; Audit

I. The principal broker shall maintain an escrow account or accounts, separate and apart from the individual or office account, in which all contract deposits shall be promptly deposited. The escrow account or accounts shall be maintained in an insured financial institution within the state of New Hampshire.

II. The broker may place the deposit in an interest-bearing account or instrument. The interest earned shall accrue to the party making the deposit as a sum to be used toward the purchase price unless otherwise agreed in writing.

III. No checks shall be drawn against uncollected deposits in the escrow account.

IV. None of the contract deposits shall be withdrawn until the contract has been terminated by performance, by agreement in writing between all parties, or by order of a court of competent jurisdiction, except as provided by paragraph VI of this section.

V. On licensure, the principal broker shall sign a permit giving the commission permission to audit the escrow account or accounts.

VI. If a broker retains a contract deposit for a period exceeding 90 days from the contract closing date, without securing performance, a written agreement, or a court order as required in paragraph IV of this section, the broker may release the contract deposit to one or more parties to the contract by initiating a release process. The release process requires the broker to notify all parties by certified mail that the deposit will be distributed to the parties specified in the letter if the parties fail to perform, enter into a written mutual release, or initiate litigation within 60 days of the mailing date of the certified letter. If neither buyer nor seller initiates litigation or enters into a written release within 60 days of the mailing date of the certified letter, the broker may release the deposit without penalty under this section. The broker's release of this deposit under this paragraph releases the broker solely from liability under this chapter, as opposed to civil liability.

331-A:14 Bonds

No active broker's license shall be issued or renewed until the applicant gives to the commission a surety bond in the form approved by the commission in a sum of not less than $25,000, executed by the applicant and by a surety company authorized to do business in this state. The bond shall be payable to the state of New Hampshire, for the benefit of any person aggrieved, and shall be conditioned upon the faithful accounting by the broker for all funds entrusted to the broker in the broker's capacity as an active licensed real estate broker. Any person so aggrieved may bring suit on the bond in the aggrieved person's own name; provided, however, that the aggregate liability of the surety to all persons shall, in no event, exceed the sum of such bond. The commission may revoke the license of any active broker whenever the bond filed by the broker ceases to be in full force and effect.

331-A:15 Issuance of License; Certificates

I. Upon receiving the completed application, the required fee and evidence that all other requirements have been met, the commission shall issue the appropriate license. Licenses shall expire 2 years from the date of issuance.

II. No license shall be issued to a broker doing business under a trade name unless and until such trade name is lawfully registered as provided in RSA> 349.

III. Licenses shall be issued in the form of a certificate for wall display and a card to be carried on the person. Each licensed broker shall prominently display at the place of business the broker's certificate and those of all licensed salespersons associated with or under contract to the broker.

IV. In the case of a branch office, the license of each broker and salesperson shall be delivered or mailed to the managing broker and be kept in the custody and control of the managing broker.

331-A:16 Supervision of Real Estate Office; Branch Offices

I. Every real estate office or real estate branch office, whether operated as a corporation, partnership or sole proprietorship, shall be directed, supervised and managed by a licensed real estate broker. The principal broker shall submit to the commission a branch office registration form prior to the opening of any branch office. The principal broker shall designate a managing broker for each branch office the principal broker opens. The principal broker shall notify the commission when any licensee associated with the principal broker transfers from one branch office to another branch office within the same association.

II. All licensees and employees associated with a real estate office shall be supervised on site by the principal broker or managing broker.

III. All members and officers of a corporation, partnership or association, who actively participate in the business of real estate brokerage, shall possess an active broker's or salesperson's license.

331-A:16-a Managing Broker Vacancy

In the event of the death, disability or change of affiliation of the managing broker of a real estate branch office, the principal broker may designate as a manager a person currently licensed with the New Hampshire real estate commission for a period not to exceed one year from the date of such vacancy. The appointment of a permanent branch managing broker shall be made within one year of the original vacancy.

331-A:17 License Amendments

I. Any broker who changes the place of business shall notify the commission within 10 days.

II. A real estate broker who proposes to use a registered trade name in connection with the business as broker shall state that fact on the application and the license shall be issued in that trade name. If already licensed, the broker shall return the license for appropriate amendment together with notice, in writing, of the broker's intention to use a registered trade name and the appropriate fee.

III. It is the responsibility of all licensees to notify the commission of resident address, mailing address and work location address.

IV. The license of a real estate salesperson shall be retained at all times by the broker and whenever a licensed salesperson changes his affiliation from one licensed broker to another or ceases to represent the broker, the broker shall notify the commission in writing of the termination. Such notice shall be accompanied by the salesperson's license. Failure of any broker to notify the commission of such salesperson's termination within 10 days after demand by the salesperson shall be grounds to discipline the broker.

V. The commission shall issue a new license for the unexpired term if the salesperson meets all requirements of licensure, upon receipt of a statement from a broker, together with the appropriate fee, that such salesperson has become affiliated with such broker.

VI. The license of an unaffiliated salesperson shall lapse unless the person obtains an affiliation with a broker within a period of 2 years.

VII. When a salesperson's services are terminated by the broker for a violation of any of the provisions of this chapter, a written statement of the facts shall be submitted immediately to the commission by the broker.

331-A:18 Lapse of License

If any licensee under this chapter permits the biennial license to expire, the license shall be deemed to have lapsed; and such person may obtain a license only by qualifying anew as an original licensee. A licensee may, however, renew the license up to 6 months after its expiration by complying with the requirements of RSA 331-A:19 and by submitting the required late fee. If a license lapses as a result of a person being ordered to active duty with the armed forces, the 6-month time period for complying with the requirement of RSA 331-A:19 shall begin upon the licensee's date of discharge from active duty, and the late fee shall be waived. During the lapsed period between the expiration date and the date of renewal of the license the rights of the licensee under such lapsed license shall be terminated. It shall be unlawful to act or attempt or offer to act in any matter as a real estate broker or salesperson under a lapsed license.

331-A:19 Renewal of License

I. The commission shall mail each licensee a renewal form at least 60 days before expiration of the license.

II. Upon receiving a completed renewal application, the required fees, an affidavit from the sponsor of an accredited program attesting to the successful completion of the continuing education requirements as set by the commission under RSA 331-A:20 and, in the case of an individual broker licensee, evidence that the required bond is in full force and effect, the executive director shall issue the appropriate license for an additional 2 years.

331-A:20 Programs of Study; Continuing Education

I. The commission shall accredit preparatory and continuing education programs of study in real estate. The commission shall require any individual, corporation or educational institution seeking accreditation or renewal of accreditation of a real estate course to submit documents, statements and forms prior to approval.

II. Continuing education courses shall cover, but not be limited to, changes in state and federal laws dealing with real estate brokerage, housing, financing of real property and consumer protection as well as changes in state enabling laws dealing with zoning and subdivision practices. The courses shall be designed to improve the licensee's knowledge of the real estate business and to assist the licensee in keeping abreast of changing laws, rules and practices which will affect the interest of the licensee's clients.

III. The commission shall establish a program of continuing education for license renewal to be administered in at least 5 geographical locations including, but not limited to, locations in or near Berlin, Concord, Keene, Nashua and Portsmouth, depending upon local requirements and the ability to engage accredited individuals, corporations or educational institutions.

IV. The commission may establish a fee for educational program evaluation.

331-A:21 Temporary Licenses

In the event of the death of a licensed real estate broker who is the sole proprietor of a real estate business, the commission may, upon application by the broker's legal representative, issue without examination a temporary license to such legal representative or to an individual designated by the legal representative and approved by the commission, and by the payment of the prescribed fee, which shall authorize such temporary licensee to continue to transact real estate business for a period not to exceed one year from the date of death.

31-A:22 Nonresidents and Reciprocity

I. A nonresident of this state may become a broker or salesperson in this state by conforming to all of the conditions of this chapter applicable to residents of this state. If an applicant already holds an active real estate license in good standing, issued by examination in accordance with the laws of another jurisdiction, that applicant need pass only the New Hampshire state portion of the licensing examination to satisfy the examination requirement for an original New Hampshire license with the state of New\Hampshire, provided the jurisdiction that issued such nonresident license has previously entered into a licensing reciprocity agreement which has been approved by the commission, and provided that all of the other requirements of this chapter applicable to residents of New Hampshire have been met.

II. Upon making application, such nonresidents shall file an irrevocable consent and power providing that legal actions may be commenced against them in the proper court of any county of this state in which a cause of action may arise or in which the plaintiff may reside by service of process or pleading authorized by the laws of this state on a member of the commission or its executive director, the consent or power stipulating that such service of process or pleading shall be taken in all courts to be valid and binding as if personal service had been made upon the nonresident in this state.

III. This section applies to nonresident license applicants only.

331-A:23 Denial of Reciprocity

No nonresident whose license as a broker or salesperson is under revocation or suspension in another state shall be granted a license as a broker or salesperson in this state; and, if already granted a nonresident license, it may be revoked or suspended as provided under this chapter upon proof of the other state's action.

331-A:24 Fees

The commission shall establish fees sufficient to produce estimated revenues equal to 125 percent of the direct operating expenses of the commission for the previous fiscal year, and sufficient to provide for periodic payments to reimburse the general fund for money appropriated for the purposes of this chapter.

331-A:25 Rulemaking

The commission shall adopt rules, under RSA 541-A, relative to:

I. Conduct of licensed brokers and salespeople.

II. Administration of examinations.

III. Eligibility of persons who have failed a salesperson or broker examination to be reexamined.

IV. Fees for examinations, continuing education courses, licenses, late renewal penalty, educational course evaluations, administrative costs, transcripts, dishonored checks, and any other fees required under this chapter.

V. Application forms for original and renewal licenses and registration forms for branch offices.

VI. Proof of an applicant's good character.

VII. Form of license certificates and cards.

VIII. Accreditation of programs of study in real estate, and the conduct of such programs.

IX. A minimum of 3 hours of continuing education for license renewal.

X. Procedure in commission proceedings.

XI. In addition to the requirements under RSA 331-A:30, procedures for the conduct of hearings consistent with the requirements of due process.

XII. The ethics code as required under RSA 331-A:9.

XIII. Procedures for applying for and renewing licenses.

XIV. What constitutes adequate proof of the qualifications under RSA 331-A:10.

331-A:25-a Licensee; Scope of Agency; Interpretation

I. A licensee who provides services through a brokerage agreement for a seller, landlord, buyer, or tenant is bound by the duties of loyalty, obedience, disclosure, confidentiality, reasonable care, diligence, and accounting.

II. A licensee may be a seller agent, a buyer agent, a disclosed dual agent, or a subagent. If another relationship between the licensee who performs the services and the seller, landlord, buyer, or tenant is intended, it must be described in writing and signed by all parties to the relationship prior to services being rendered.

331-A:25-b Seller Agent; Duties

I. A licensee engaged by a seller or landlord shall:

(a) Perform the terms of the written brokerage agreement made with the seller or landlord.

(b) Promote the interests of the seller or landlord including:

(1) Seeking a sale, lease, rent, or exchange at the price and terms stated in the brokerage agreement or a price and terms acceptable to the seller or landlord except that the licensee is not obligated to seek additional offers to purchase the real estate while the real estate is subject to a contract of sale unless the brokerage agreement so provides.

(2) Presenting in a timely manner all offers and agreements to and from the seller or landlord, even if the real estate is subject to a contract of sale.

(3) Accounting in a timely manner, during and upon termination, expiration, completion, or performance of the brokerage agreement for all money and property received in which the seller or landlord has or may have an interest.

(4) Informing the seller or landlord that such seller or landlord may be liable for the acts of the principal broker and subagents who are acting on behalf of the seller or landlord when the licensee is acting within the scope

(5) Informing the seller or landlord of the laws and rules regarding real estate condition disclosures.

(c) Preserve confidential information received from the seller or landlord that is acquired during a brokerage agreement. This obligation continues beyond the termination, expiration, completion, or performance of the fiduciary relationship. Confidentiality shall be maintained unless:

(1) The seller or landlord to whom the information pertains grants written consent to disclose the information;

(2) The information is made public from a source other than the licensee;

(3) Disclosure is necessary to defend the licensee against an accusation of wrongful conduct in a judicial proceeding before a court of competent jurisdiction, the commission, or before a professional committee; or

(4) If otherwise required by law.

(d) Be able to promote alternative real estate not owned by the seller or landlord to prospective buyers or tenants as well as list competing properties for sale or lease without breaching any duty to the seller or landlord.

II. The duties of a licensee acting on behalf of a seller or landlord to a buyer or tenant include:

(a) Treating all prospective buyers or tenants honestly and insuring that all required real estate condition disclosures are complied with.

(b) The ability to provide assistance to the buyer or tenant by performing ministerial acts such as showing property, preparing offers or agreements, and conveying those offers or agreements to the seller or landlord and providing information and assistance concerning professional services not related to the real estate brokerage services. Performing ministerial acts for the buyer or tenant shall not be construed as violating the brokerage agreement with the seller or landlord, provided that agency disclosure has been given in writing to the buyer or tenant. Performing ministerial acts for the buyer or tenant shall not be construed as forming an agency relationship with the buyer or tenant.

331-A:25-c Buyer Agent; Duties

I. A licensee engaged by a buyer or tenant shall:

(a) Perform the terms of the written brokerage agreement made with the buyer or tenant.

(b) Promote the interests of the buyer or tenant including:

(1) Seeking real estate at a price and terms specified by the buyer or tenant except that the licensee is not obligated to seek other real estate for the buyer or tenant while the buyer or tenant is a party to a contract to purchase, exchange, rent, or lease that real estate unless the brokerage agreement so provides.

(2) Presenting in a timely manner all offers to and from the buyer or tenant on real estate of interest.

(3) Accounting in a timely manner, during and upon termination, expiration, completion, or performance of the brokerage agreement for all money and property received in which the buyer or tenant has or may have an interest.

(4) Informing the buyer or tenant of the laws and rules regarding real estate condition disclosures.

(c) Preserve confidential information received from the buyer or tenant that is acquired during a brokerage agreement. This obligation continues beyond the termination, expiration, completion, or performance of the fiduciary relationship. Confidentiality shall be maintained unless:

(1) The buyer or tenant to whom the information pertains grants written consent to disclose the information;

(2) The information is made public from a source other than the licensee;

(3) Disclosure is necessary to defend the licensee against an accusation of wrongful conduct in a judicial proceeding before a court of competent jurisdiction, the commission, or before a professional committee; or

(4) If otherwise required by law.

(d) Be able to introduce the same real estate to other prospective buyers or tenants without breaching any fiduciary duty to the buyer or tenant.

II. The duties of a licensee acting on behalf of a buyer or tenant to a seller or landlord include:

(a) Treating all prospective sellers or landlords honestly.

(b) The ability to provide assistance to the seller or landlord by performing ministerial acts such as showing property, preparing offers or agreements, and conveying those offers or agreements to the buyer or tenant and providing information and assistance concerning professional services not related to the real estate brokerage services. Performing ministerial acts for the seller or landlord shall not be construed as violating the brokerage agreement with the buyer or tenant, provided that agency disclosure has been given in writing to the seller or landlord. Performing ministerial acts for the seller or landlord shall not be construed as forming an agency relationship with the seller or landlord.

331-A:25-d Disclosed Dual Agent; Duties

I. A licensee may act as a disclosed dual agent only with the written consent of all parties involved in the real estate transaction.

II. The duties of a licensee acting as a disclosed dual agent include:

(a) Performing the terms of the written disclosed dual agency agreement made with the parties.

(b) Presenting in a timely manner all offers or agreements to and from the parties on real estate of interest.

(c) Accounting in a timely manner, during and upon termination, expiration, completion, or performance of the brokerage agreement for all money and property received in which the parties have or may have an interest.

(d) Informing the parties of the laws and rules regarding real estate condition disclosures.

(e) Preserving confidential information received from the parties that is acquired during the written disclosed dual agency relationship, or from any prior brokerage agreement. This obligation continues beyond the termination, expiration, completion, or performance of the fiduciary relationship. Confidentiality shall be maintained unless:

(1) The party to whom the information pertains grants written consent to disclose the information;

(2) The information is made public from a source other than the licensee;

(3) Disclosure is necessary to defend the licensee against an accusation of wrongful conduct in a judicial proceeding before a court of competent jurisdiction, the commission, or before a professional committee; or

(4) If otherwise required by law.

331-A:26 Prohibited Conduct

The following acts, conduct or practices are prohibited, and any licensee found guilty after a hearing shall be subject to disciplinary action as provided in RSA 331-A:28:

I. Obtaining a license by means of fraud, misrepresentation or concealment.

II. Violating any of the provisions of this chapter, or any rules adopted or order issued pursuant to this chapter.

III. Being convicted in a court of competent jurisdiction of this or any other state, or federal court, of forgery, embezzlement, obtaining money under false pretenses, bribery, larceny, extortion, conspiracy to defraud, or any similar offense or offenses; provided that, for the purposes of this section being convicted shall include all instances in which a plea of guilty or nolo contendere is the basis for the conviction, and all proceedings in which the sentence has been deferred or suspended.

IV. Making, printing, publishing, distributing, or causing, authorizing or knowingly permitting the making, printing, publication or distribution of false statements, descriptions or promises of such character as to reasonably induce any person to act, if the statements, descriptions or promises purport to be made or to be performed by either the licensee or licensee's principal, and the licensee then knew or, by the exercise of reasonable care and inquiry, could have known of the falsity of the statements, descriptions or promises.

V. Knowingly committing, or being a party to any material fraud, misrepresentation, concealment, conspiracy, collusion, trick, scheme or device, whereby any other person relies upon the word, representation or conduct of the licensee.

VI. Accepting the services of, or continuing in a representative capacity, any salesperson who has not been granted a license, or after the license has been revoked or suspended.

VII. Conversion of any money, contract, deed, note, mortgage, abstract or other evidence of title, to the licensee's own use, to the use of the licensee's principal, or of any other person, when delivered to the licensee in trust or on condition, in violation of the trust or before the happening of the condition. Failure to return any money or contract, deed, note, mortgage, abstract or other evidence of title within 30 days after the owner is entitled to and makes demand for such evidence, shall be prima facie evidence of such conversion.

VIII. Failing to promptly place trust funds in a proper trust account, or failing to reconcile records monthly.

IX. Failing, upon demand, to disclose any information within the licensee's knowledge, or to produce any document, book or record in the licensee's possession for inspection of and copying by the commission or its authorized representatives acting under authority of law.

X. Advertising in any manner without stating the broker's name as licensed, and in the case of a salesperson, without stating the name of the broker as licensed for whom or under whom the salesperson operates.

XI. Accepting other than cash or its equivalent as earnest money, unless that fact is communicated to the owner prior to the owner's acceptance of the offer to purchase, and such fact is shown in the earnest money receipt.

XII. Acting for more than one party in a transaction without the knowledge and consent in writing of all parties for whom the licensee acts, and without first making full disclosure of all the facts to all parties interested in the transaction.

XIII. Accepting, taking or charging any undisclosed commission, rebate or direct profit on expenditures made for the principal.

XIV. Accepting employment or compensation for comparative market analysis of real property contingent upon reporting a predetermined value.

XV. Issuing a comparative market analysis on any real property in which the broker or salesperson has an interest, unless such interest is clearly stated in the competitive market analysis report.

XVI. Misrepresentation of membership in any state or national real estate association.

XVII. Discrimination against any person in hiring or in sales activity, on the basis of race, color, creed or national origin, or violating any of the provisions of any state or federal antidiscrimination law. A certified copy of the final holding of any court of competent jurisdiction in such matter, or a certified copy of the order issued by any state or federal administrative agency having jurisdiction in such matter, shall be conclusive evidence in any hearing conducted under this chapter.

XVIII. Failing to keep for a period of 3 years, records of escrow and trust accounts pertaining to funds entrusted with the licensee relating to a real estate transaction showing date deposited, date of withdrawal, to whom paid, and such other pertinent information as the commission may require. Such records shall be available to the commission, or its representatives, on demand from the licensee.

XIX. Failing to preserve for 3 years following its consummation, records relating to any real estate transaction.

XX. Acceptance by a salesperson of a commission or any valuable consideration for the performance of any acts specified in this chapter, from any person, except the licensed real estate broker with whom the salesperson is licensed.

XXI. Directing any transaction involving the licensee's principal to any lending institution for financing or to any escrow company, in expectation of receiving a kickback or rebate.

XXII. Failing to disclose to an owner, the licensee's intention or true position if the licensee directly, or indirectly through a third party, purchases for such licensee, or acquires or intends to acquire any interest in or any option to purchase the property.

XXIII. Acting as a salesperson with a licensed broker while not licensed, representing or attempting to represent a broker other than the broker with whom the licensee is affiliated, representing oneself as a salesperson or having a contractual relationship similar to that of salesperson with other than a licensed broker.

XXIV. Paying or offering to pay valuable consideration, as defined by the commission, to any person not licensed under this chapter or not a member of an exempted class under RSA 331-A, except that valuable consideration may be shared with a licensed broker of another jurisdiction who is doing business regularly and legally within that broker's own jurisdiction.

XXV. Failing to voluntarily furnish copies of all documents to all parties executing the documents.

XXVI. Advertising the availability of real estate or the services of a licensee in a false, misleading or deceptive manner.

XXVII. In the case of a broker or a licensee who is a branch manager, failing to exercise reasonable supervision over the activities of licensees and any unlicensed staff.

XXVIII. Breaching a fiduciary duty owed by a licensee to the principal in a real estate transaction.

XXIX. Unprofessional conduct defined by statute or rule.

XXX. Guaranteeing or authorizing any person to guarantee future profits which may result from the resale of the real property.

XXXI. Offering real estate for sale or lease without the knowledge and written consent of the owner or owner's authorized agent, or on terms other than those authorized by the owner or owner's authorized agent.

XXXII. Inducing any party to a contract of sale or lease to break such contract for the purpose of substituting a new contract with another principal.

XXXIII. Representing to any lender, guaranteeing agency or any other interested party, either verbally or through the preparation of false documents, an amount in excess of the true and actual sale price of the real estate or terms differing from those actually agreed upon.

XXXIV. Lending a broker's license to any person including a salesperson, or permitting a salesperson to operate as a broker.

XXXV. Failure to produce any document, book or record, in the licensee's possession or under the licensee's control, concerning any real estate transaction under investigation by the commission for inspection and copying.

XXXVI. Demonstrating untrustworthiness or incompetency to act as a broker or salesperson.

331-A:27 Mistake

Any license obtained through the mistake or inadvertence of the executive director shall be subject to revocation.

331-A:28 Disciplinary Actions; Appeals; Cease and Desist Orders

I. The commission may investigate the actions of any person engaged in the business or acting in the capacity of a real estate broker or real estate salesperson, regardless of whether the transaction was for the person's own account or in the capacity as broker or salesperson. If found guilty, after a hearing, of violating this chapter, the commission may impose any one or more of the following sanctions:

(a) Suspend, revoke or deny a license or the renewal of such license.

(b) Levy a fine not to exceed $2,000 for each offense.

(c) Require the person to complete a course in a selected area of real estate practice relevant to the section of this chapter violated.

II. The commission may, in accordance with RSA 541-A, issue a cease and desist order to a person, after notice and hearing and upon a determination that the person has violated a provision of this chapter or a lawful order or rule of the commission.

III. The action of the commission in revoking, suspending or denying a license or levying a fine, shall be subject to appeal to the superior court at the instance of the licensee within 30 days after the filing of the commission's decision. An appeal shall suspend the commission's decision. The record of the hearing of the action of the commission shall be presented to the superior court for review and the superior court shall give the review under this chapter priority on the court calendar. The superior court may confirm, reverse or modify the commission's decision, or order a trial de novo without a jury as justice may require.

331-A:29 Investigation Procedures

In addition to the requirements of RSA 541-A and other specific statutes, the commission shall comply with the following procedures when investigating complaints against licensees:

I. Upon receipt of a complaint, the executive director or his designee shall be responsible for investigation of the complaint. Upon completion of the investigation the investigator shall present the complaint file to a commission member who shall evaluate the complaint. Such commission member may direct the executive director to meet with the complainant and the licensee to attempt to reconcile their differences.

II. The results of the evaluation shall be presented to the commission by the evaluating member.

III. Based on the results of this evaluation, the evaluating commission member shall make a written recommendation to the commission regarding whether a hearing should be held to consider disciplinary action against a licensee.

IV. If the evaluating commission member recommends that a hearing be held, the commission shall schedule such a hearing as required by RSA 331-A:30. The commission may, regardless of the recommendation of the evaluating committee member, elect to hold a hearing on any complaint.

V. Disciplinary hearings shall be heard by a hearing panel consisting of at least 3 commission members. The hearing panel shall not include the member responsible for evaluating the complaint in question.

331-A:30 Hearing Procedures

In addition to the requirements of RSA\541-A and other specific statutes, the following shall apply to hearings conducted pursuant to the provisions of this chapter:

I. The commission shall give the licensee at least 14 days' written notice prior to the date of hearing, of the charges to be heard by it, and shall afford such licensee an opportunity to be heard in person or by counsel. The hearings shall be held at a time and place established by the commission.

II. The commission shall have the power to subpoena and bring before it any person or any relevant records or documents in this state or to take testimony by deposition, in the same manner as is prescribed by law in judicial proceedings. The commission shall keep a complete record of the proceedings in such cases. For this purpose, the commission is authorized to utilize electronic recording or to employ a temporary reporter and fix the reporter's compensation, and the governor is authorized to draw the warrant for said sums out of any money in the treasury not otherwise appropriated. The commission is authorized to charge the broker, associate broker or salesperson a reasonable fee for any copies of transcript furnished to such person. Sheriffs and witnesses shall receive the same fees for the service of process and attendance before the commission as are paid to sheriffs and witnesses in matters pending before the superior court.

III. The decisions of the commission shall be reached in a timely manner and shall be in writing and officially signed by the hearing panel as set forth under RSA 331-A:29, V. The original of such decisions, when signed, shall be filed in the office of the commission. Copies of the decision shall be mailed to the broker, associate broker or salesperson addressed to the place of business, and to the complainant, if any, within 2 days after the filing.

331-A:31 Payment by State

The cost and expenses of hearings conducted under RSA 331-A:30 shall be paid by the state. The governor is authorized to draw the warrant for the said sums out of any money in the treasury not otherwise appropriated.

331-A:32 Civil Actions

I. No action or suit shall be instituted, nor recovery be had, in any court of this state by any person for compensation for any act done or service rendered as a broker or salesperson under this chapter, unless such person was duly licensed under this chapter as a broker or salesperson at the time of offering to perform any such act or service, or procuring any promise to contract for the payment of compensation for any such contemplated act or service.

II. No salesperson may sue in such person's own capacity for the recovery of a fee, commission or compensation for services as a salesperson unless the action is against the broker with whom the person is licensed or was licensed with at the time the act or service was performed.

331-A:33 Immunity

The executive director, members of the commission, or individuals acting on their behalf shall be immune from suit in any action, civil or criminal, based on any acts performed in good faith in the course of their duties.

331-A:34 Penalty

Any person acting as a real estate broker or real estate salesperson, without a license or violating any of the provisions of this chapter, shall be guilty of a misdemeanor.

331-A:35 Prosecution

I. The commission may file or cause to be filed a complaint for violation of any provision of the preceding section, before any court of competent jurisdiction.

II. The prosecuting attorney of each county shall prosecute any violation of the preceding section which occurs in the prosecutor's county, and if the prosecuting attorney fails to act, the commission may request the attorney general to take action in lieu of the prosecuting attorney.

III. Process issued by the commission shall extend to all parts of the state, and may be served by any person authorized to serve process of courts of record, or may be mailed by certified mail with return receipt requested to the person's last known address, or in the case of a licensee, to the licensee's last business address of record in the office of the commission.

IV. Whenever the commission believes from evidence satisfactory to it that any person has violated any of the provisions of this chapter, or any order, license, decision, demand or requirement, or any part or provisions thereof, it may bring an action in the superior court in the county wherein such person resides, to enjoin any such person from continuing the violation or engaging in any act or acts in furtherance of such violation. In this action, an order or judgment may be entered awarding a preliminary or final injunction as

V. The commission may petition the superior court in any county in this state for the immediate appointment of a receiver to take over, operate, or close any real estate office in this state which is found, upon inspection of its books and records, to be operating in violation of the provisions of this chapter, pending a hearing under this chapter.