New Hampshire Real Estate Commission

REVISED STATUTES ANNOTATED
CHAPTER 331-A

Repealed and Reenacted by Chapter 348.1, Laws of 1993

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.

Source.  1993, 348:1, eff. Jan. 1, 1994.

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, including electronic publications.

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.

I-b. "Appointing agent" means a broker named by the principal broker who appoints individual real estate licensees to represent either the buyer or tenant, or the seller or landlord, in an office of a firm that practices designated agency.

I-c. "Associate broker" means any person who is licensed as a real estate broker, but who is employed by a principal broker or under contract, expressed or implied, to a principal broker and in addition operates under the supervision of a principal broker to participate in any activity described in paragraph III of this section.

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 on 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. "Designated agent" means a licensee who has been appointed by an appointing agent to represent one party of a real estate transaction and who owes that party fiduciary duties, whether or not the other party to the same transaction is represented by another individual licensee associated with the same brokerage firm.

IV-b. "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. "Facilitator" means an individual licensee who assists one or more parties during all or a portion of a real estate transaction without being an agent or advocate for the interests of any party to such transaction.

V-b. "Firm" means any sole proprietorship, partnership, association, corporation, limited liability company, other business association, or other legal entity.

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

V-e. "Limited electronic media" means all electronic media that only allow for the presentation of limited amounts of information.  Limited electronic media includes, but is not limited to, thumbnails, twitter messages, text messages, and other forms of electronic media existing now or in the future that similarly limit the amount of information that can be presented.

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, sole proprietorship, corporation, partnership, association, limited liability company, other business association, or other legal entity.

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, exchange, rent, or lease 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."

XV.  "Unprofessional conduct" means any action by a licensee or accredited individual, institution, or organization which is unlawful, dishonorable, unethical, or immoral.

Source.  1993, 348:1, eff. Jan. 1, 1994. 1996, 196: 2-8, eff. Aug. 2, 1996.
2000, 311:1, eff. Jan. 1, 2001, 268:1, eff. Sept. 13, 2003.
2004, 227:1, eff. Aug. 10, 2004. 2005, 286:1, 2, 3, eff. Jul. 1, 2005.
2008, 12:1-3, 7, eff. Jan. 1, 2009, 130:1, eff. Aug. 2, 2008.
2010, 304:1-3, eff. Sept. 11, 2010.
2011, 134:2, eff. Aug. 6, 2011. 2014, 261:1. eff. Sept. 26, 2014.

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.

Source.  1993, 348:1, eff. Jan. 1, 1994.

331-A:4 Exempted Classes.

The provisions of this chapter shall not apply to:

I.  An owner who is not a licensee, or the regular employees of an owner of real estate who are not licensees, with respect to the real property of the owner;

I-a. A prospective purchaser or tenant who is not a licensee, or the regular employees of a prospective purchaser or tenant who are not licensees, with respect to the real property of the owner;

II.  An attorney-in-fact who is not a licensee acting under a power of attorney with respect to real property of the principal of the attorney-in-fact;

III.  An attorney at law in the performance of duties as an attorney;

IV.  A licensed auctioneer selling real estate at public auction or otherwise authorized by RSA 311-B;

V.  A public official in the performance of the duties of the official;

VI.  A person or the regular employees of a person while the person is not acting as a licensee but is acting as a receiver, trustee, administrator, executor, conservator, guardian, or fiduciary, or while acting under court order, the authority of a will, trust instrument, or other recorded instrument containing a power of sale;

VII.  Any person owning or operating a park, including the person's 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 salesperson, and who does not hold himself or herself out as a real estate broker;

VIII.  A corporate consultant who receives a fee from a client based on site searching services rendered in accordance with a written contract, rather than on the completion of any particular transaction and who does not hold himself or herself out as a real estate broker; or

IX.   A condominium unit owners' association that rents condominium units for periods of 30 days or less for the exclusive benefit of the unit owners and the unit owner's association provided that such rentals are managed through an on-site rental office that is operated and controlled exclusively by the unit owners' association.

Source. 1993, 348:1, eff. Jan. 1, 1994. 2000, 311:2,
eff. Jan. 1, 2001. 2001, 182:1, eff. Sep. 3, 2001.
2009, 125:1, eff. Aug. 21, 2009.
2010, 304:4, eff. Sept. 11, 2010. 2014, 261:2, Sept. 26, 2014.

331-A:5 Commission; Duty.

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

II. The commission members shall include:

  (a) Two licensed real estate brokers.
  (b) One licensed real estate salesperson.
  (c) One lawyer.
  (d) One public member.

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.  Whenever a quorum of commission members is unable to hear a particular case, the commission may appoint one or more former commission members as alternates to hear that case, starting with the most recent member to leave the commission and proceeding in reverse chronological order of former members.  Alternates shall be appointed and sworn in on a case-by-case basis only, and shall receive compensation as provided for members under RSA 331-A:5, VI.

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.

Source. 1993, 348:1, eff. Jan. 1, 1994. 2000, 311:3, eff. Jan. 1, 2001.

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.

Source. 1993, 348:1, eff. Jan. 1, 1994.

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

suggested courses of study.

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 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.

Source. 1993, 348:1, eff. Jan. 1, 1994. 1998, 289:1, eff. Jan. 1, 1999.
2009, 125:5, eff. Aug. 21, 2009.

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.

Source. 1993, 348:1, eff. Jan. 1, 1994.

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 or commission employee shall, for compensation of any type, teach or participate in any preparatory or continuing education effort approved by the commission, except that a commission member or commission employee may, in such capacity, participate in a preparatory or 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.

IV. No commission employee shall be issued an active real estate license throughout the duration of employment with the commission.  A commission employee shall be allowed to apply for an inactive real estate license during employment with the commission, but the license shall remain inactive during such employment.  A commission employee shall not obtain a real estate license in another state based on the inactive license obtained in New Hampshire during such employment with the commission.

Source. 1993, 348:1, eff. Jan. 1, 1994.  2005, 286:4, 5, eff. Jul. 1, 2005.

331-A:10 Qualifications For Licensure.

I. The executive director shall issue a salesperson's license to any applicant who:

    (a) Has attained the age of 18;

    (b) 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 licensure, an applicant who shows proof of completion of 40 hours of approved study which shall have been completed prior to the date of the applicant's examination;

    (c) Demonstrates no record of unprofessional conduct;

    (d) Furnishes any evidence required by the commission relative to good reputation for honesty, trustworthiness and integrity; and

    (e) Complies with the criminal records check under RSA 331-A:10-a.

II. The executive director shall issue a broker's license to any applicant who:

    (a) Has attained the age of 18;

    (b) 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 licensure, an applicant who shows proof of completion of 60 hours of approved study which shall have been completed prior to the date of the applicant's examination;

    (c)(1) Has been employed full time by an active principal broker for at least one year within 5 years of the date of application; or       

        (2) Has at least 2,000 part-time hours as a licensed salesperson in this state within 5 years of the date of application; or

        (3) Proves to the commission that the applicant has experience equivalent to the experience required by subparagraph (c)(1) or (c)(2);     

    (d) Demonstrates no record of unprofessional conduct;

    (e) Furnishes any evidence required by the commission relative to good reputation for honesty, trustworthiness and integrity;

    (f) For a broker acting as a principal broker or a managing broker, but excluding associate brokers or a corporation, partnership, limited liability company, or association, files a surety bond with the commission which shall be held in accordance with RSA 331-A:14;

    (g) Submits evidence acceptable to the commission of a least 6 separate real estate transactions in which the applicant was actively involved and was compensated or proves to the commission that the applicant has equivalent experience; and

    (h) Complies with the criminal records check under RSA 331-A:10-a.

Source. 1993, 348:1, eff. Jan. 1, 1994. 2000, 311:4, eff. Jan. 1, 2001, 268:2, eff. Sept. 13, 2003.
2004, 227:2, 3, eff. Aug. 10, 2004. 2005, 286:6, 7, eff. Jul. 1, 2005. 2008, 34:2, eff. Jul. 11, 2008.

331-A:10-a Criminal Records Check.

I. All applicants for a new salesperson or broker license shall submit to the New Hampshire department of safety, division of state police, a notarized criminal record release authorization form, along with the appropriate fee, prior to submitting an application for a real estate license.  In addition, the applicant shall submit to the commission a criminal record report from any other jurisdiction in which the applicant has been convicted of a misdemeanor or felony offense.

II. The commission shall supply the criminal record release authorization form to new salespersons and broker applicants

III. Upon receipt of an applicant's criminal record information, the commission shall make a determination of eligibility for licensure.

2005, 286:8, eff. Jul. 1, 2005. 2008, 34:1, eff. Jul. 11, 2008.

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.

Source. 1993, 348:1, eff. Jan. 1, 1994.

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 other requirements of the commission have been met. This section applies to nonresident salesperson applicants only when such applicants are applying for an original New Hampshire salesperson license.

Source. 1997, 248:1, eff. Jan. 1, 1998, 268:3, eff. Sept. 13, 2003.

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.

Source. 1993, 348:1, eff. Jan. 1, 1994.

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 a written request 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 a licensed principal or managing 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 requesting to change status from inactive to active, and, in the case of a licensed principal or managing broker, providing evidence of a surety bond as required by RSA 331-A:14.

Source. 1997, 248:2, eff. Jan. 1, 1998.
2011, 134:1, eff. Aug. 6, 2011.

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 deposits on fully executed contracts 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 principal broker may place the deposit in an interest-bearing escrow or trust 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 contract deposits in the escrow account.

IV. Withdrawal of contract deposits shall be allowed to be forwarded to the closing agent, title company, or attorney, prior to performance of a contract for the purpose of performance.  Otherwise, none of the contract deposits shall be withdrawn until the contract has been terminated by performance, by contemporaneous 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 principal 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 principal broker may release the contract deposit to one or more parties to the contract by initiating a release process. The release process requires the principal 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 principal broker may release the deposit without penalty under this section. The principal broker's release of this deposit under this paragraph releases the principal broker solely from liability under this chapter, as opposed to civil liability.

VII.  A principal broker may deposit business or personal funds into an escrow account to cover service charges only, assessed to the account by the bank or depository where the account is located, or to maintain a minimum balance in the account as required by the regulations of the bank or depository. 

VIII. If a principal broker licensed under this chapter holds funds entrusted to him or her pursuant to a written agreement for the sale or lease of real property and the written agreement expressly authorizes the principal broker, or firm, as escrow agent, to continue to hold the funds in the event of a dispute between the buyer or tenant and seller or landlord concerning entitlement to the funds, no claim shall be maintained against the principal broker, or firm, as escrow agent, whether as trustee, stakeholder, or otherwise, if the escrow agent has complied with the mutual written instructions of the buyer or tenant and seller or landlord, if any, and any order or judgment of a court or final decision of an arbitrator with regard to accounting for or disbursing the funds.  In an action commenced with regard to entitlement to such escrowed funds, a party to the action may file a motion seeking an order to have the funds paid into court by the escrow agent.  Written notice of the motion shall be given by the moving party to all other parties and to the escrow agent.  The escrow agent shall pay the funds into court within 10 days of receipt of the order on the motion or within such other time as provided by the court.

Source. 1993, 348:1, eff. Jan. 1, 1994. 2000,
311:5, 6, 7, eff. Jan. 1, 2001. 2005, 286:9, eff. Jul. 1, 2005.
2007, 114:2, eff. Jan. 1, 2008.
2010, 304:5, eff. Sept. 11, 2010.

331-A:14 Bonds.

No principal or managing broker's license shall be issued or renewed until the applicant gives to the commission a surety bond in any 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 a principal or managing 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 principal or managing broker whenever the bond filed by the broker ceases to be in full force and effect.

Source. 1993, 348:1, eff. July 1, 1994. 1997, 248:3,
eff. Jan. 1, 1998. 2000, 311:8, eff. Jan. 1, 2001, 268:4, eff. Sept. 13, 2003.

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 principal place of business the broker's certificate and those of all licensed salespersons and associate brokers 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.

Source. 1993, 348:1, eff. Jan. 1, 1994, 268:10, eff. Sept. 13, 2003.

 

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 application 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.

IV. (a)  All advertisements by a broker or salesperson shall include the broker's or salesperson's legal name or reasonable derivative thereof and the regular business name of the firm or the principal broker's name when licensed under an individual principal broker license.  The firm or principal broker's name, within the advertisement, shall be clearly identifiable. This requirement shall apply to all categories of advertising including all publications, radio or television broadcasts, all electronic media including electronic mail and the Internet, business stationery, business and legal forms and documents, and signs and billboards.

(b)  Any advertising which contains a home telephone number, cell-phone number, beeper or pager number, home fax number, direct office number, electronic mail address, or any other means of contacting directly an individual salesperson or broker, or a team of such licensees, shall also include the name and telephone number of the individual principal broker or brokerage firm through which the advertising licensees operate.  All such advertising shall contain language clearly identifying each number included in the advertising.

(c) With respect to limited electronic media, the requirements of subparagraphs (a) and (b) shall be satisfied if the limited electronic media includes a link to an Internet display that contains the required information.

Source. 1993, 348:1, eff. Jan. 1, 1994. 2000, 311:9, eff. Jan. 1,
2001, 268:5, eff. Sept. 13, 2003. 2005, 286:10, eff. Jul. 1, 2005.
2008, 34:3, 4, eff. Jul. 11, 2008. 2010, 304:6, eff. Sept. 11, 2010.
2011, 134:3, eff. Aug. 6, 2011.

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.

Source.  1994, 40:1, eff. June 27, 1994.

331-A:17 License Amendments.

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

II. A real estate principal broker who proposes to use a registered trade name in connection with a firm broker license or individual principal broker license shall state that fact on an amendment form, and submit the form along with the appropriate fee, the firm broker license or individual principal broker license to be amended, and a trade name registration form.  The firm broker license or individual principal broker license shall be amended to include the trade name.

III. It is the responsibility of all licensees to notify the commission in writing of any changes to the licensee's resident address, mailing address and work location address.

IV. The license of a real estate salesperson or associate broker shall be retained at all times by the principal broker and whenever a licensed salesperson or associate broker changes his or her affiliation from one licensed principal broker to another or ceases to represent the principal broker, the principal broker shall notify the commission in writing of the termination. Such notice shall be accompanied by the salesperson's or associate broker's license. Failure of any principal broker to notify the commission of such salesperson's or associate broker's termination within 5 days after the termination of the salesperson or associate broker shall be grounds to discipline the principal broker.

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

VI. When a salesperson's or broker's services are terminated by the principal 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 principal broker.

Source.  1993, 348:1, eff. Jan. 1, 1994, 268:6, eff. Sept. 13, 2003.
2004, 227:4, eff. Aug. 10, 2004. 2005, 286:11, eff. Jul. 1, 2005.
2008, 34:5, 6, Jul. 11, 2008.

331-A:18 Lapse of License.

I. If a license is not renewed before the expiration date, then the license is deemed to have expired, and a licensee may renew an expired license up to 6 months after its expiration date by complying with the requirements of RSA 331-A:19 and by submitting the required late fee.

II. If an expired license is not renewed within 6 months under paragraph I, then the license is deemed to have lapsed and such person may obtain a license only by qualifying anew as an original applicant.  However, the commission may renew a lapsed license within a reasonable time from the date of lapse for good cause shown.

III. If a license expires or 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 or release from active duty, and the late fee shall be waived.

IV. The rights of the licensee under such expired or 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 an expired or lapsed license.

Source.  1993, 348:1, eff. Jan. 1, 1994. 2004, 227:5, eff. Aug. 10, 2004.
2009, 125:6, eff. Aug. 21, 2009.

331-A:19 Renewal of License.

I. The commission shall mail each licensee a renewal notice or, at the licensee's request, the commission may provide the renewal notice by other means acceptable to the commission, at least 60 days before expiration of the license.

II. Upon receiving a completed renewal application, the required fees, certification of completion of required continuing education as set by the commission under RSA 331-A:20 and, in the case of a principal or managing broker licensee, evidence that the required bond is in full force and effect, the executive director shall issue the appropriate license for 2 consecutive years from the date of expiration.

Source.  1993, 348:1, eff. Jan. 1, 1994.
2000, 311:10, eff. Jan. 1, 2001, 268:7, eff. Sept. 13, 2003.
2005, 286:12, eff. Jul. 1, 2005. 2009, 125:2, eff. Aug. 21, 2009.

331-A:20 Programs of Study; Preparatory Education; Continuing Education.

I. An individual, institution, or organization seeking accreditation or renewal of accreditation to offer a preparatory or continuing education program of study shall meet criteria and submit documentation as required by the commission prior to approval.   The commission shall require any individual, institution, or organization seeking accreditation or renewal of accreditation of a real estate course to submit documents, statements, and forms prior to approval.

II. In reviewing and approving an application for a continuing education course, the commission shall assess the content with the primary purpose of assuring that real estate licensees possess the knowledge, skills, and competence necessary to perform the licensee's duties in the real estate business.  The subject matter of the course must be directly related to real estate practice in New Hampshire.  Continuing education courses shall consist of the following:

(a)  Continuing education 3-hour core 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 core courses shall be designed to assist the licensee in keeping abreast of changing laws, rules and practices which will affect the interest of the licensee's clients or customers.

(b) Continuing education elective courses shall cover, but not be limited to, property valuation, construction, contract and agency law, ethics, financing and investment, land use and zoning, property management, taxation, environmental issues, and supervision and office management.  The elective courses shall be designed to assist the licensee in keeping abreast of changing laws, rules, and practices which affect the interest of the licensee's clients or customers.

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.

V. Any individual, institution, or organization offering a preparatory or continuing education program who commits any of the following acts, conduct, or practices shall, after a hearing under RSA 331-A:30, be subject to disciplinary action as provided in RSA 331-A:28:

(a) Obtaining or attempting to obtain an accreditation or re-accreditation by means of fraud, misrepresentation, or concealment.

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

(c) Advertising the availability of accredited courses in a false, misleading, or deceptive manner.

(d) Failing to include in any advertisement the individual, institution, or organization's legal name or reasonable derivative thereof accredited to teach the course.

(e) Offering or providing a course with curriculum or subject matter which is not the curriculum or subject matter submitted for accreditation.

(f) Engaging in conduct which demonstrates incompetence.

(g) Providing an affidavit of completion of an accredited course to a licensee or a potential licensee who has not completed the required hours of such course.

(h) Providing outdated, inappropriate, or inaccurate teaching materials or information.

(i) Receiving poor student evaluations or commission audits.

(j) Failing to take corrective action toward unsatisfactory performance or issues identified in commission audits.

(k) Demonstrating unprofessional conduct as defined by RSA 331-A:2, XV, or, when presenting a course to licensees or potential licensees, engaging in inappropriate conduct.

(l) Discriminating against an individual based on age, sex, race, creed, color, marital status, physical or mental disability, religious creed, national origin, or sexual orientation.

(m) Offering or providing a course for credit that has not yet been accredited or whose accreditation has expired.

(n) Failing to preserve, for at least 3 years from the beginning date of an accredited course, attendance records, documentation, and materials relating to the course.

Source.  1993, 348:1, eff. Jan. 1, 1994.
2000, 311:11, eff. Jan. 1, 2001.
2005, 286:13, 14, eff. Jul. 1, 2005.
2010, 304:7, eff. Sept. 11, 2010.
2014, 261:3, eff. Sept. 26, 2014.


331-A:21 Temporary Licenses.

In the event of the death or total incapacity of a licensed real estate principal broker of a real estate business, the commission may, upon application by the principal 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 or incapacitation.

Source. 1993, 348:1, eff. Jan. 1, 1994.
2000, 311:12, eff. Jan. 1, 2001.
2005, 286:15, eff. Jul. 1, 2005.

331-A:22 Nonresidents.

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.

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.

Source.  1993, 348:1, eff. Jan. 1, 1994.
1997, 248:4, eff. Jan. 1, 1998, 268:8, eff. Sept. 13, 2003.

331-A:22-a Practice by Brokers of Other Jurisdictions. - I. No broker licensed in another jurisdiction shall list, offer, attempt, or agree to list real estate in this state for sale or lease unless the broker has acquired a license pursuant to RSA 331-A:22.

II. A broker licensed in another jurisdiction representing a buyer or tenant wherein the broker is not licensed under this chapter, may be actively involved in a real estate transaction in this state only if the broker has entered into a cooperative brokerage agreement with a broker licensed under this chapter who shall represent the buyer or tenant according to this chapter.

III. No broker licensed in another jurisdiction who is not licensed under this chapter may act as a broker with a buyer or tenant unless the broker is working on behalf of and under the license of a broker licensed under this chapter.

IV. The commission shall adopt rules pursuant to RSA 541-A relative to cooperative brokerage agreements under this section.  Such rules shall include:

    (a)  The form and content of a cooperative brokerage agreement.

    (b)  The length of time an agreement may be effective.

    (c)  The procedure for extension or early termination of an agreement.

    (d)  Any fees which may be associated with a cooperative brokerage agreement.

    (e)  The penalty, in addition to any other penalty under this chapter, for violation of the rules concerning cooperative brokerage agreements, and the procedure to appeal the commission's ruling.

    (f)  [Repealed].

Source. 1999, 257:1, eff. Sept. 7, 1999.
2005, 286:16, eff. Jul. 1, 2005.
2012, 171:26, XVI, eff. Aug. 10, 2012.

331-A:23 Denial of Reciprocity.

No broker or salesperson applicant 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 license through reciprocity, it may be revoked or suspended as provided under this chapter upon proof of the other state's action.

Source.  1993, 348:1, eff. Jan. 1, 1994. 2008, 34:7, eff. Jul. 11, 2008.

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.

Source.  1993, 348:1, eff. Jan. 1, 1994.

331-A:24-a Notice of Rulemaking Proceeding. - Notwithstanding RSA 541-A:6, III, the notice of rulemaking proceedings shall be provided by U.S. mail by the commission to any person licensed under this chapter who pays a reasonable fee to the commission for the postage and preparation of such mailings.  Such reasonable fee shall be set by the commission and adopted in its administrative rules under RSA 541-A.

Source. 1997, 248:5, eff. Jan. 1, 1998.

 

331-A:24-b Handling Charge. [Repealed 2010, 304:10, eff. Sept. 11, 2010.]
 

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 trade names.

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 a 3-hour core course of continuing education for active and inactive license renewal, and an additional 12 elective hours of continuing education for active license renewals.

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.

XV.  Distinctions for persons regulated by this chapter between practices concerning 1-4 family dwellings and practices for all other real estate.

Source. 1993, 348:1, eff. Jan. 1, 1994. 1999, 179:1,
eff. Aug. 30, 1999. 2000, 311:13, eff. Jan. 1, 2001.
2008, 34:8, eff. Jul. 11, 2008. 2009, 125:3, eff. Aug. 21, 2009.
2014, 261:4, eff. Sept. 26, 2014.


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.

Source. 1996, 196:9, eff. Aug. 2, 1996.

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 of the agency relationship.

(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.

(c)  Disclosing to a prospective buyer or tenant any material physical, regulatory, mechanical, or on-site environmental condition affecting the subject property of which the licensee has actual knowledge.  Such disclosure shall occur at any time prior to the time the buyer or tenant makes a written offer to purchase or lease the subject property.  This subparagraph shall not create an affirmative obligation on the part of the licensee to investigate material defects.

Source. 1996, 196:9, eff. Aug. 2, 1996. 2008, 12:5, eff. Jan. 1, 2009.

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.

(e) Disclose to a prospective buyer or tenant any material physical, regulatory, mechanical, or on-site environmental condition affecting the subject property of which the licensee has actual knowledge.  Such disclosure shall occur at any time prior to the time the buyer or tenant makes a written offer to purchase or lease the subject property.  This subparagraph shall not create an affirmative obligation on the part of the licensee to investigate material defects.

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.

Source. 1996, 196:9, eff. Aug. 2, 1996. 2008, 12:6, eff. Jan. 1, 2009.

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 to the anticipated transaction at the time in which a dual agency relationship occurs, but no later than the preparation of a written offer for sale or lease.

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.

Source.  1996, 196:9, eff. Aug. 2, 1996.
2005, 286:17, eff. Jul. 1, 2005.

331-A:25-e Duty of a Designated Agent.

I. A licensee appointed by an appointing agent to be a designated agent shall:

(a) If representing a seller or landlord, comply with all duties as required in RSA 331-A:25-b.

(b) If representing a buyer or tenant, comply with all duties as required in RSA 331-A:25-c.

II. Appointment of a designated agent shall not be made without the written consent of the party at the commencement of the party's agency relationship with the real estate brokerage firm.  There shall be a conclusive presumption that a seller or landlord or a buyer or tenant has consented to a designated agency relationship, if the party signed a brokerage agreement containing an explanation of designated agency.

III. Upon appointment of a designated agent, the responsibility to satisfy agency duties owed to a buyer or tenant or a seller or landlord shall be the responsibility of the designated agent, and not other licensees affiliated with the same firm.

IV. Substitutions of designated agents shall not be made without informed written consent of the party being represented.

V. When a designated agent is appointed, information known or acquired by the designated agent shall not be imputed to the appointing  agent or to other licensees within the same firm.

VI. When an appointing agent has appointed designated agents for both the buyer or tenant and the seller or landlord in the same transaction, the appointing agent is a dual agent, and does not exclusively represent either the seller or landlord or the buyer or tenant.  The appointing agent is neutral as to any conflicting interests of the seller or landlord and buyer or tenant but shall continue to owe the seller or landlord and the buyer or tenant the duties of confidentiality, disclosure of material information, and accounting for funds.

VII. (a) When consent to designated agency has been given by the seller or landlord and the buyer or tenant, written notice shall also be provided to the seller or landlord and the buyer or tenant that designated agency has occurred with both the seller or landlord and buyer or tenant in the transaction.  This notice shall be provided prior to the execution of the purchase and sale or lease agreement.

(b) If the designated seller's agent and the designated buyer's agent in a transaction are affiliated with the same broker and the seller or landlord and the buyer or tenant each have consented to designated agency, a separate consent to dual agency of the appointing agent shall not be required.

(c) If the designated seller or landlord agent is also the designated buyer or tenant agent in the same transaction, the designated agent is a dual agent and a separate informed consent to dual agency shall be required in accordance with RSA 331-A:25-d.

VIII. Appointment of a designated agent shall not limit the liability or responsibility of the appointing agent and principal broker for breach of duty by the designated agent.

IX. Designated agents who are affiliated with the same managing broker in the same transaction shall not be considered dual agents, unless the same designated agent has agreed to represent both buyer and seller.

X. Dual agency does not occur between appointing agents who have separately appointed the designated seller agent and the designated buyer agent within the same firm.  Appointing agents receipt of confidential information shall not be imputed to any other appointing or affiliated agents from the same firm.

XI. Dual agency does not occur in firms that represent buyers only and that have appointed designated buyer agents within the firm, or firms that represent sellers only and that have appointed designated seller agents within the firm.

Source. 2008, 12:4, eff. Jan. 1, 2009.

331-A:25-f Facilitator; Duties.

I. A licensee acts as a facilitator when that licensee assists but does not represent either party in a transaction.

II. A facilitator shall disclose to a prospective buyer or tenant any material physical, regulatory, mechanical, or on-site environmental condition affecting the subject property of which the facilitator has actual knowledge.  Such disclosure shall occur any time prior to the time the buyer or tenant makes a written offer to purchase or lease the subject property.  This paragraph shall not create an affirmative obligation on the part of the facilitator to investigate material defects.

III. Unless otherwise agreed, the licensee acting as a facilitator shall have no duty to keep information received from the seller or landlord or the buyer or tenant confidential.

IV. The parties may or may not enter into a contractual relationship.

V. The duties of the facilitator apply only to the seller or landlord and the buyer or tenant in the particular property transaction involving the seller or landlord and the buyer or tenant.

VI. A facilitator shall treat all prospective sellers or landlords and buyers or tenants honestly.

VII. The performance of ministerial acts for the seller or landlord or the buyer or tenant shall not be construed as forming an agency relationship with the seller or landlord or the buyer or tenant.

Source. 2008, 12:4, eff. Jan. 1, 2009. 2012, 35:1, eff. Jul. 1, 2012.

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 or attempting to obtain 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, sexual crimes, drug distribution, arson, physical violence, 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. In the case of a salesperson or broker, advertising in any manner without stating the name of the individual principal broker when licensed under an individual principal broker license or business name as licensed for whom or under whom the salesperson or broker operates, except as provided in RSA 331-A:16, IV(c).

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

XII. Acting for more than one party in a transaction without making full disclosure and obtaining written consent of all parties to the anticipated transaction at the time in which a dual agency relationship occurs, but no later than the preparation of a written offer for sale or lease.

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 principal broker 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.

XIX. In the case of a principal broker, failing to preserve for 3 years following its consummation, records relating to any real estate transaction.

XX. Acceptance by a salesperson or broker 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 principal broker with whom the salesperson or broker is licensed.

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

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

(2) In writing to a potential buyer or lessee, a licensee's ownership interest, direct or indirect, in property offered for sale or lease by the licensee.

(b) Such disclosures shall be made prior to an offer to purchase, sell, or lease, and acknowledged in writing by all parties to the transaction.

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, 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.  No licensee shall knowingly pay a commission or other valuable consideration to a licensed person knowing that the licensee will in turn pay a portion or all of that which is received to a person who does not hold a valid real estate license.  A licensee who has allowed his or her license to expire or who has changed to inactive status or who has transferred to another responsible broker may receive compensation from the previous responsible broker for transactions in which the person participated during the time that the licensee was under the supervision of that responsible broker.

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 principal 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 in RSA 331-A:2, XV.

XXX. Guaranteeing or authorizing any person to guarantee future profits or income which may result from the purchase or 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.

XXXVII. Failing to inform the commission in writing within 30 days of 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, or an offense or offenses involving sexual crimes, drug distribution, arson, or physical violence; provided that, for the purposes of this paragraph, 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.  This paragraph applies only when the conviction has not first been annulled by a court pursuant to RSA 651:5.

XXXVIII. Submitting a property owner's name to any electronic database or multiple listing service that may be accessed by any other person other than the property owner's broker without the express written permission of the property owner.

Source. 1993, 348:1, eff. Jan. 1, 1994. 2000, 311:14,
15, 16, 17, 18, 19, 20, eff. Jan. 1, 2001, 268:9, eff. Sept. 13, 2003.
2004, 227:6, eff. Aug. 10, 2004. 2004, 227:7, eff. Jan. 1, 2005.
2005, 286:18, 19, 20, eff. Jul. 1, 2005.
2008, 34:9, 10, eff. Jul. 11, 2008.
2011, 134:4, eff. Aug. 6, 2011. 2012, 35:2, eff. Jul. 1, 2012.

 

331-A:27 Mistake.

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

Source.  1993, 348:1, eff. Jan. 1, 1994.

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 or courses in selected areas of real estate practice relevant to the section of this chapter violated.

I-a. The commission may investigate the actions or qualifications of any person engaged in offering to present or presenting an accredited preparatory or continuing education program of study to licensees or potential licensees, when the commission receives a complaint or other information that indicates that the program of study is not meeting the requirements of the accreditation granted to an individual, institution, or organization, or is otherwise violating this chapter, or a lawful rule or order of the commission.  If, after a hearing, the commission finds a violation of this chapter, the commission may impose one or more of the following sanctions:

(a) Suspend, revoke, or deny an accreditation or the renewal of an accreditation.

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

(c) Require the person to complete a course or courses in selected areas of real estate practice or education relevant to the violation.

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 accreditation, or levying a fine, shall be subject to appeal to the superior court at the instance of the licensee or an accredited individual, institution, or organization, within 30 days after the filing of the commission's decision. An appeal shall suspend the commission's decision, except in the case of revocation of license or accreditation. 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.

Source.  1993, 348:1, eff. Jan. 1, 1994. 2000, 311:21, eff. Jan. 1, 2001.
2010, 304:8-9, eff. Sept. 11, 2010. 2014, 261:5, eff. Sept. 26, 2014.

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:

I. Upon receipt of a complaint, the executive director or his or her 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, accredited individual, institution or organization, or person charged with practicing unlawful brokerage activity 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, accredited individual, institution or organization, or person charged with practicing unlawful brokerage activity.

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 commission 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.

Source.  1993, 348:1, eff. Jan. 1, 1994.
2005, 286:21, eff. Jul. 1, 2005.
2009, 125:4, eff. Aug. 21, 2009.
2014, 261:7, eff. Sept. 26, 2014.

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, accredited individual, institution or organization, or person charged with practicing unlawful brokerage activity 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, accredited individual, institution or organization, or person charged with practicing unlawful brokerage activity 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 licensee, accredited individual, institution or organization, or person charged with practicing unlawful brokerage activity 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 licensee, accredited individual, institution or organization, or person charged with practicing unlawful brokerage activity addressed to the place of business, to the complainant, if any, and to each party in a transaction in which the commission determined the individual was practicing unlawful brokerage activity, within 2 days after the filing.

Source. 1993, 348:1, eff. Jan. 1, 1994.
2014, 261:8, eff. Sept. 26, 2014.

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.

Source. 1993, 348:1, eff. Jan. 1, 1994.

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.

Source.  1993, 348:1, eff. Jan. 1, 1994.

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.

Source.  1993, 348:1, eff. Jan. 1, 1994.

331-A:34 Unlawful Practice; Penalty.

I. Whoever, not being licensed or otherwise authorized according to the law of this state, shall advertise oneself as engaging in real estate brokerage activity, or shall engage in real estate brokerage activity, according to this chapter, or in any way hold oneself out as qualified to do so, or call oneself a "real estate salesperson", "real estate broker", or "real estate licensee", or whoever does such acts after receiving notice that such person's license has been suspended or revoked, is engaged in unlawful practice.

II. Any person who engages in unlawful practice shall be guilty of a class A misdemeanor if a natural person, or guilty of a felony if any other person.

III. The commission, after hearing and upon making an affirmative finding under paragraph I, that the person is engaged in unlawful practice, may take action in any one or more of the following ways:

(a) A cease and desist order in accordance with paragraph IV.

(b) The imposition of a fine not to exceed the amount of any gain or economic benefit that the person derived from the violation or $10,000 for each offense, whichever amount is greater.

IV. The commission is authorized to issue a cease and desist order against any person or entity engaged in unlawful practice.  The cease and desist order shall be enforceable in superior court.

V. The attorney general, the commission, or the prosecuting attorney of any county or municipality where the act of unlawful practice takes place may maintain an action to enjoin any person or entity from continuing to do acts of unlawful practice.  The action to enjoin shall not replace any other civil, criminal, or regulatory remedy.  An injunction without bond is available to the commission.

Source.  1993, 348:1, eff. Jan. 1, 1994. 2005, 206:2, eff. Jan. 1,
2006. 2006, 98:2, eff. Jul. 8, 2006. 2014, 261:6, eff. Sept. 26, 2014.

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 deemed appropriate.

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.

Source.  1993, 348:1, eff. Jan. 1, 1994.

Last Updated 10/2/14

"Administrative Rules"