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 9/29/2010 9:18 PM
 

Problem of Violations by builders avoiding Residential Endorsement requirements and suggested actions.

Provided by Jerry Royse President AlaskaYellowpages.com and Royse and Associates.

Recommendations for current industry groups

Alaska Real Estate Commission

1. Modify Disclosure form for Residential Real Property Disclosure Immediately

2. Add Subject matter under current Required Courses for 2010-2012 Renewal

Prohibited Conduct (topic 18) and Real Estate License Law (topic 25)*

Property Disclosures & Inspections (topic 19)

3. Require full 2 hour Required course for 2012-2014 on Residential Endorsement/Building Codes

Alaska Home Builders

1. Provide Curriculum to Trainers for Required Course

2. Lobby Legislature for changes in Penalties under Sec 08.18

3. Establish task force to work with Department of Commerce, Community, and Economic Development to enforce the statutes as required and develop violation reporting system

4. Provide Model language to Representative Bob Lynn For introduction in next Legislative Session to modify Exemption language in Sec. 34.70.010. Disclosures in Residential Real Property Transfers

MLS

1. Require Residential Endorsement and contractors license #

2. Require waiver documentation following model for any non compliance and disclose if property is not built by someone with current Residential Endorsement

REALTORS

1. Add to curriculum of GRI Program and assure all REALTOR CE 8 hour Required offerings include a segment on issue.

Relevent Alaska Statute and Regulation Sections

Title 08 Business and Provisions

Residential Contractors

Real Estate Licensees

Sec. 08.18.025. Residential contractors.

(a) A general contractor may not undertake the construction or alteration, or submit a bid to undertake the construction or alteration of a privately-owned residential structure of one to four units or advertise or publicly represent that the general contractor may undertake work of this type in the state without a residential contractor endorsement issued under this section. In this subsection, "alteration" means changes that have a value greater than 25 percent of the value of the structure being altered.

Sec. 08.18.051. Identification requirements for contractors.

(a) Except as provided otherwise by law, a person who has registered as a contractor under one name as required by this chapter may not act in the capacity of a contractor under any other name unless that name also is registered.

(b) All advertising, contracts, correspondence, cards, signs, posters, papers, and documents prepared by a contractor for the contracting business must show the contractor's name, mailing address, and address of the contractor's principal place of business. Advertising and contracts must also include the contractor's registration number.

(c) Individual contractors and partners, associates, agents, salesmen, solicitors, officers, and employees of contractors shall use their true names and addresses and the true name of the contractor firm at all times while acting in the capacity of a contractor or performing related activities.

Article 02. BOND AND INSURANCE

Sec. 08.18.071. Bond required.

(a) Except as provided in (d) and (e) of this section, each applicant shall, at the time of applying for a certificate of registration, file with the commissioner a surety bond running to the state conditioned upon the applicant's promise to pay all

(1) taxes and contributions due the state and political subdivisions;

(2) persons furnishing labor or material or renting or supplying equipment to the applicant; and

(3) amounts that may be adjudged against the applicant by reason of negligent or improper work or breach of contract in the conduct of the contracting business or home inspection activity, as applicable, or by reason of damage to public facilities occurring in the course of a construction project.

Sec. 08.18.081. Claims against contractor or home inspector.

(a) Except as provided in AS 08.18.085 , a person having a claim against a contractor or home inspector for any of the items referred to in AS 08.18.071 may bring suit upon the bond in the district court of the judicial district in which venue lies. A copy of the complaint shall be served by registered or certified mail upon the commissioner at the time suit is filed, and the commissioner shall maintain a record, available for public inspection, of all suits commenced. Two additional copies shall be served upon the director of the division of insurance with the payment to the director of a fee set under AS 21.06.250, taxable as costs in the action. This service upon the director shall constitute service on the surety, and the director shall transmit the complaint or a copy of it to the surety within 72 hours after it has been received. The surety upon the bond is not liable in an aggregate amount in excess of that named in the bond, but in case claims pending at any one time exceed the amount of the bond, the claims shall be satisfied from the bond in the following order:

(1) labor, including employee benefits;

(2) taxes and contributions due the state, city, and borough, in that order;

(3) material and equipment;

(4) claims for breach of contract;

(5) repair of public facilities.

Sec. 08.18.101. Insurance required.

(a) Each applicant, at the time of applying for registration or upon renewal of registration, shall file with the commissioner satisfactory evidence that the applicant has in effect

(1) to the extent required under AS 23.30, workers' compensation insurance that is purchased from a private insurer who is admitted to do business in the state and that shows coverage in this state, appropriate employee classifications, and rates applicable in this state, or a valid workers' compensation self-insurance certificate issued by the Alaska Workers' Compensation Board; and

(2) public liability and property damage insurance covering the applicant's contracting operations in this state in the sum of not less than $20,000 for damage to property, $50,000 for injury, including death, to any one person, and $100,000 for injury, including death, to more than one person.

(b) Proof of insurance coverage for an applicant under (a) of this section may be satisfied by providing evidence that the applicant is covered by a policy in effect for the applicant's employer at least to the extent required under (a) of this section.

Article 03. ENFORCEMENT

Sec. 08.18.116. Investigations.

Either the Department of Commerce, Community, and Economic Development or the Department of Labor and Workforce Development may investigate alleged or apparent violations of this chapter relating to contractors. The Department of Commerce, Community, and Economic Development may investigate alleged or apparent violations of this chapter relating to home inspection activities. These departments, upon showing proper credentials, may enter, during regular hours of work, a construction site where it appears that contracting work is being done. The departments may make inquiries about the identity of the contractor or the person acting in the capacity of a contractor. The Department of Commerce, Community, and Economic Development may make inquiries about the identity of a home inspector or a person acting in the capacity of a home inspector. Upon demand, a contractor or home inspector or person acting in the capacity of a contractor or home inspector, or that person's representative, shall produce evidence of current endorsement, if applicable, and registration

Sec. 08.18.118. Procedure and form of citation issuance and procedure.

(a) A citation issued under this chapter must be in writing. A person receiving the citation is not required to sign a notice to appear in court.

(b) The time specified in the notice to appear on a citation issued under this chapter must be at least five days, not including weekends and holidays, after the issuance of the citation, unless the person cited requests an earlier hearing.

(c) The Department of Commerce, Community, and Economic Development and the Department of Labor and Workforce Development are responsible for the issuance of books containing appropriate citations, and each shall maintain a record of each book issued and each citation contained in it. Each department shall require and retain a receipt for every book issued to an employee of that department.

(d) The department that issues a citation under this chapter shall deposit the original or a copy of the citation with a court having jurisdiction over the alleged offense. Upon its deposit with the court, the citation may be disposed of only by trial in the court or other official action taken by the magistrate, judge, or prosecutor. The department that issued the citation may not dispose of it or copies of it or of the record of its issuance except as required under this subsection and (e) of this section.

(e) The Department of Commerce, Community, and Economic Development and the Department of Labor and Workforce Development shall require the return of a copy of every citation issued by the respective department under this chapter and of all copies of every citation that has been spoiled or upon which an entry has been made and not issued to an alleged violator. The departments shall also maintain, in connection with every citation issued by the respective department, a record of the disposition of the charge by the court where the original or copy of the citation was deposited.

(f) If the form of citation issued under this chapter includes the essential facts constituting the offense charged, and if the citation is sworn to as required under the laws of this state for a complaint charging commission of the offense alleged in the citation, then the citation when filed with a court having jurisdiction is considered to be a lawful complaint for the purpose of prosecution.

Sec. 08.18.119. Failure to obey citation.

Unless the citation has been voided or otherwise dismissed by the magistrate, judge, or prosecutor, a person who without lawful justification or excuse fails to appear in court to answer a citation issued under this chapter, regardless of the disposition of the charge for which the citation was issued, is guilty of a class B misdemeanor.

Sec. 08.18.121. Suspension and revocation of registration.

(d) If a registered contractor or registered home inspector fails to fulfill the contractor's or home inspector's obligations as set out in AS 08.18.071 , the contractor's or home inspector's registration shall be suspended for a period of time the commissioner determines is appropriate. After three suspensions, the contractor's or home inspector's registration may be permanently revoked.

(f) If the Department of Commerce, Community, and Economic Development or the Department of Labor and Workforce Development determines that a contractor or person acting in the capacity of a contractor is in violation of this chapter, that department may give written notice to the person prohibiting further action by the person as a contractor. If the Department of Commerce, Community, and Economic Development determines that a home inspector or a person acting in the capacity of a home inspector is in violation of this chapter, the department may give written notice to the person prohibiting further action by the person as a home inspector. The prohibition in a notice given under this subsection continues until the person has submitted evidence acceptable to the appropriate department showing that the violation has been corrected.

(h) The endorsement of a residential contractor is automatically suspended or revoked while the contractor's registration is suspended or revoked

Sec. 08.18.123. Denial, suspension, and revocation of endorsement or home inspector registration.

(a) The department may suspend, revoke, or refuse to grant or renew a residential contractor endorsement, a home inspector registration, or an associate home inspector registration upon a finding that

(1) the application is fraudulent or misleading;

(2) the endorsement holder or registrant has knowingly violated this chapter or a lawful order or regulation of the department;

Sec. 08.18.125. Administrative fine and procedure.

(a) Notwithstanding any other remedy available under this chapter and except as provided in (e) of this section, the department may impose an administrative fine of not more than $1,000 for the first violation and not more than $1,500 for a second or subsequent violation of either AS 08.18.011 or 08.18.025.

(e) The department may not impose an administrative fine on a person who is acting as a contractor or home inspector in an area with a population of 1,000 or less that is not connected by road or rail to Anchorage or Fairbanks.

Sec. 08.18.141. Violations.

(a) A contractor, a home inspector, or a person acting in the capacity of a contractor or home inspector is guilty of a class B misdemeanor if the person

(1) knowingly violates AS 08.18.011 or 08.18.025; and

(2) has been previously

(A) convicted of violating AS 08.18.011 or 08.18.025;

(B) found guilty of a violation under AS 08.18.117 if violation involved AS 08.18.011 or 08.18.025; or

(C) fined under AS 08.18.125 .

(b) A contractor, a home inspector, or a person acting in the capacity of a contractor or home inspector who violates a provision of this chapter, other than a violation under (a) of this section, is guilty of a violation punishable under AS 12.

(c) Criminal prosecution for a violation of this chapter does not preclude the Department of Commerce, Community, and Economic Development or the Department of Labor and Workforce Development from seeking available civil or administrative remedies.

Sec. 08.18.161. Exemptions.

To the extent that this chapter governs contractors, this chapter does not apply to

(6) construction, alteration, or repair of personal property;

(8) work on one project under one or more contracts, the aggregate contract price of which for labor and materials and all other items is less than $10,000; this exemption does not apply when the work is only a part of a larger or major operation, whether undertaken by the same or a different contractor, or when the work is divided into contracts of amounts less than $10,000 for the purpose of evasion of this chapter or otherwise; this exemption does not apply to a person who advertises or puts out a sign or card or other device that might indicate to the public that the person is a contractor, or that the person is qualified to engage in the contracting business; a contractor who performs work priced at $2,500 or more, under this exemption, shall nevertheless keep in force public liability and property damage insurance with coverage in at least the amounts set out in AS 08.18.101 ;

(10) a person working on that person's own property, whether occupied by the person or not, and a person working on that person's own residence, whether owned by the person or not;

(12) an owner who acts as the owner's own contractor and in doing so hires workers on an hourly basis, hires subcontractors, purchases materials and, as such, sees to the paying for all labor, subcontractors, and materials; in this case, the owner shall be limited to construction of one home, duplex, triplex, four-plex, or commercial building every two years;

Sec. 08.18.171. Definitions.

(15) "residential contractor" means a general contractor whose business and operation involve undertaking the construction or alteration of a privately-owned residential structure of one to four units that is used or intended to be used as a human dwelling;

Real Estate Statutes

Sec. 08.88.091. Education of Applicants and Licensees.

(g) [The commission shall establish core curricula for continuing education in the following areas: real estate sales, property management, community association management, and commercial sales. A licensee shall complete at least one of the four core curricula during each biennial licensing period as part of the licensee's continuing education.

Sec. 08.88.167. Civil Penalty for Unlicensed or Unauthorized Practice.

(a) In addition to penalties prescribed by any other provision of law, if a person engages or offers to engage in an activity for which a license is required under AS 08.88.161 without being licensed or authorized to engage in the activity in accordance with the provisions of this chapter, the commission may enter an order levying a civil penalty.

(b) A civil penalty levied under this section may not exceed $5,000, or the amount of gain realized plus $5,000, whichever is greater, for each offense. In levying a civil penalty, the commission shall set the amount of the penalty imposed under this section after taking into account the seriousness of the violation, the economic benefit resulting from the violation, the history of violations, and other facts the commission considers relevant.

(c) Before entering an order under (a) of this section, the commission shall send the person written notice of the proposed order that grants the person a 30-day period during which the person may request a hearing on the record.

(d) In connection with proceedings under (a) - (c) of this section, the commission may issue subpoenas to compel the attendance and testimony of witnesses and the disclosure of evidence and may request the department to bring an action to enforce a subpoena.

(e) A person aggrieved by the levy of a civil penalty under this section may file an appeal with the superior court for judicial review of the penalty under AS 44.62.560 .

(f) If a person fails to pay a civil penalty within 30 days after entry of an order under (a) of this section, or within 10 days after the court enters a final judgment in favor of the commission of an order stayed pending an appeal under (e) of this section, the commission may initiate other action to recover the amount of the penalty.

(g) An action to enforce an order under this section may be combined with an action for an injunction under AS 08.88.037

Real Estate Regulations 12 AAC 64

Article 04 Prohibited Conduct

12 AAC 64.130 Grounds for Revocation or Suspension.

The following acts, in addition to those specified elsewhere in this chapter, are grounds for revocation or suspension of a license:

(1) acting or failing to act as specified in AS 08.88.071(a)(3);

(2) representing more than one party in a real estate transaction;

(3) failing to account for, remit, or surrender any money, documents, or other property of value coming into the possession or control of the licensee in the course of a real estate transaction or unreasonably delaying the accounting for or disbursal of money, documents, or other property held by or which is the responsibility of the broker for parties in a real estate transaction;

(4) failing to disclose information as required in 12 AAC 64.940;

(A) the listing contract;

(B) the receipt and agreement to purchase;

(C) the settlement statement;

(5) being found guilty of forgery, embezzlement, obtaining money under false pretenses, larceny, extortion, conspiracy to defraud, or other similar offenses committed while licensed under this chapter; for the purpose of this paragraph, “being found guilty” means a guilty verdict by a judge or jury or pleading nolo contendere or guilty to any of these acts or having a hearing officer find that the licensee participated in these at a hearing held in accordance with AS 44.62 (Administrative Procedure Act);

(6) advertising a property for sale, lease, or rent without first obtaining the written authority of the owner or the owner’s authorized agent to sell, lease, or rent the property;

(7) paying referral fees, sharing commissions, or otherwise compensating a person who is prohibited from receiving compensation under AS 08.88.401(b);

(8) advertising to buy, sell, rent, lease or exchange any real estate without including in the advertisement the broker’s business name registered with the department; this paragraph applies to all real estate advertised to the public including that owned by the licensee;

(9) failing to disclose to all parties in a real estate transaction the fact that the licensee is licensed or failing to disclose the name of the broker or company under whom the licensee is licensed;

(10) employing or using a third-party purchaser, purchasing through corporations, partnerships, or other entities or working through friends, relatives, or business associates in a way that profits the licensee with the effect, in whole or in part, of concealing the profit and the name of the interested licensee;

(11) acting in violation of the provisions of AS 08.88;

(12) accepting as earnest money anything other than cash unless the offered non-cash substitute is communicated to the owner before accepting the offer to purchase, and the acceptance of the non-cash substitute is identified as a non-cash substitute on the earnest money receipt;

(13) failing to submit to the seller or the seller’s Licensee all written bona fide offers received before the seller accepts another offer in writing and the broker has knowledge of the acceptance;

(14) failing to disclose to a prospective buyer a known material defect regarding the condition of or a known legal defect pertaining to, the offered real estate or interest in real estate;

(15) engaging in or committing any act which is grounds for denying a license;

(16) for a broker, permitting another person to use the broker’s license, whether for compensation or not, enable someone other than the broker to establish or carry on a business for which a real estate license is required;

(17) for a broker, allowing a salesperson to operate a real estate business without retaining control as the employing broker for the business;

(18) establishing or carrying on a real estate business without a broker’s supervision as required by 12 AAC 64.125;

(19) being found guilty of violating local, state, or federal fair housing laws.

Authority: AS 08.88.071 AS 08.88.081 AS 08.88.401

Article 08 Continuing Education Requirements

12 AAC 64.500 Continuing Education Requirements.

(a) For the purposes of AS 08.88.091(d), the commission will accept only those continuing education courses that meet the real estate education standards of 12 AAC 64.400 - 12 AAC 64.470, including courses in the following subject areas:

(13) land use, planning, zoning, and building codes;

(14) legal descriptions;

(15) listing responsibilities;

(17) new construction;

(18) prohibited conduct;

(19) property disclosure and inspections;

(33) risk management;

(b) An applicant for renewal of a broker, associate broker, or salesperson license must document that the following continuing education contact hours were earned during the concluding licensing period:

(1) an eight-hour continuing education core curriculum, identified by the commission, that stresses current trends in real estate practices and changes in state, federal, and case law in the areas of real estate sales, property management, community association management, or commercial sales; and

(2) 12 contact hours of continuing education in elective topics that meet the requirements in (a) of this section.

(c) At least 120 days before the beginning of each licensing period, the commission will identify topics in which all licensees will be required to obtain eight contact hours of continuing education credit under (b)(1) of this section during the next licensing period.

12 AAC 64.930 Property Disclosure Form.

(a) The form titled Residential Real Property Transfer Disclosure Statement, dated July 2008, is adopted by reference. This form, prepared by the Real Estate Commission, presents the information required by AS 34.70 that a transferor of an interest in residential real property must disclose to a prospective transferee of the property before the transferee makes a written offer. Use of this form also complies with AS 34.70.050 regarding notice to the transferee to conduct investigations regarding convicted sex offenders residing in the neighborhood and whether there is an agricultural facility or operation in the vicinity.

(b) For the purposes of this section, “residential real property” has the meaning given to the term in AS 34.70.200.

Real Property Transfer

Chapter 34.70. DISCLOSURES IN RESIDENTIAL REAL PROPERTY TRANSFERS

Sec. 34.70.010. Disclosures in Residential Real Property Transfers.

Before the transferee of an interest in residential real property makes a written offer, the transferor shall deliver by mail or in person a completed written disclosure statement in the form established under AS 34.70.050. Delivery to the spouse of the transferee constitutes delivery to the transferee unless the transferor and the transferee agree otherwise before the delivery.

Sec. 34.70.020. Termination of Offer.

If a disclosure statement or material amendment is delivered to the transferee after the transferee has made a written offer, the transferee may terminate the offer by delivering a written notice of termination to the transferor or the transferor's agent within three days after the disclosure statement or amendment is delivered in person or within six days after the disclosure statement or amendment is delivered by deposit in the mail.

Sec. 34.70.030. Liability After Disclosure.

A transferor is not liable for a defect or other condition in the real property or the real property interest being transferred if the transferor discloses the existence of the defect or condition in the disclosure statement.

Sec. 34.70.040. Subsequent Events and Approximations.

(a) If information in a disclosure statement becomes inaccurate as a result of an act or agreement after the disclosure statement is delivered to the transferee, the resulting inaccuracy does not violate this chapter and the transferor is required to deliver an amendment for the disclosure statement to the transferee.

(b) If an item that is required in the disclosure statement is unknown or is unavailable to the transferor, and if the transferor or the transferor's agent has made a reasonable effort to ascertain the information, the transferor may insert an approximation of the information. The approximation must be reasonable, clearly identified as an approximation, based on the best information available to the transferor or the transferor's agent, and not used to avoid the requirements of this chapter.

Sec. 34.70.050. Form of Disclosure Statement.

The Real Estate Commission established under AS 08.88.011 shall establish the form of the disclosure statement required by AS 34.70.010. The disclosure statement must include a provision that notifies transferees

(1) that they are responsible for determining whether a person who has been convicted of a sex offense resides in the vicinity of the property that is the subject of the transferee's potential real estate transaction;

(2) where information about the location of convicted sex offenders can be obtained; and

(3) that they are responsible for determining whether, in the vicinity of the property that is the subject of the transferee's potential real estate transaction, there is an agricultural facility or agricultural operation that might produce odor, fumes, dust, blowing snow, smoke, burning, vibrations, noise, insects, rodents, the operation of machinery including aircraft, and other inconveniences or discomforts as a result of lawful agricultural operations.

Sec. 34.70.060. Good Faith.

A person who makes a disclosure or performs an act under this chapter shall do so in good faith.

Sec. 34.70.070. Effect on Other Required Disclosures.

The requirements of this chapter do not affect other obligations for disclosure required by law.

Sec. 34.70.080. Written Amendment.

An amendment to a disclosure statement must be in writing.

Sec. 34.70.090. Failure to Comply.

(a) A transfer that is subject to this chapter is not invalidated solely because a person fails to comply with this chapter.

(b) A person who negligently violates this chapter or fails to perform a duty required by this chapter is liable to the transferee for the amount of the actual damages suffered by the transferee as a result of the violation or failure.

(c) A person who willfully violates this chapter or fails to perform a duty required by this chapter is liable to the transferee for up to three times the actual damages suffered by the transferee as a result of the violation or failure.

(d) In addition to the damages allowed under (b) or (c) of this section, a court may also award the transferee costs and attorney fees to the extent allowed under the rules of court.

Sec. 34.70.110. Waiver by Agreement.

This chapter does not apply to the transfer of an interest in residential real property if the transferor and transferee agree in writing that the transfer will not be covered under this chapter.

Sec. 34.70.120. Exemption for First Sales.

This chapter does not apply to the transfer of an interest in residential real property if the transfer is the first transfer of the property and if the property has never been occupied.

Sec. 34.70.200. Definitions.

In this chapter,

(1) "disclosure statement" means the disclosure statement required by AS 34.70.010 ;

(2) "real property" includes a unit in real property subject to AS 34.07 or AS 34.08;

(3) "residential real property" means real property whose primary purpose is to provide a single-family dwelling, or two single-family dwellings in one building;

(4) "transfer" means transfers by sale, exchange, installment land sale contract, lease with an option to purchase, other option to purchase, or a ground lease coupled with improvements.

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