December 21, 1964

Honorable Blll.Iofland ,CountyAttorney .OplnionNo. C- 365 RockwallCounty Courthouse Re: Whether the buslRockwall,Texas ness of a broker of cemetery lots Is regulatedby Articles 1.01 et seq., Article 6?5p,vA;tp

or A&&ld j:05b, Dear Mr.'Iafland: V.P.CI

You hiie requestedan opinion from this office on the above captionedquestion.

Your brief, from which we quote, describes the questioned enterpriseas follows:

'Ithaa...come

tciour'attentlonthat there are large'gumbersof-persons ti .thlsState who are unable to, dlspose,of cemetery lots~ which they no ,longerneed as a result of havingmoved or havlng~ been transferred. The group consistsprincipally of persons who purchase cemetery lots near their homes and who, on moving, are prevented from reselllng their lots to the cemetery'fromwhich theywere orlglna$lypurchased because of cemetery regulationsprohibiting repurchase of cemetery lots once.sold, or because the price: offered for repurchase is nominal. We are further Informed that many of these people would exchange their lots with one another or offer them for sale if there were some means by which they could so dispose of'theirproperty. We have received further Informationthat a business has been formed for the purpose of acting as an intermediary for such persona."

-1729-Honorable Bill Lofland,page 2 (c-365 )

You have advised that the enterprise in qukstion Involves Individualsand not a corporation,therefore the Business CorporationAct, Article 1.01, et seq., Vernon's Civil Statutes, Is not applicable.

Any individualwlshlng to transact the business of operatinga cemeterymust do so through a corporation organizedunder Article 912a, Vernon's Civil Statutes. Art. 912a, Sec. 5. V.C.S. We have concluded,however, that a broker of cemetery lots will not be transacting such business.

A broker Is a special agent engaged by others to negotiate contractsfor the sale or lease of real estateor other property. n Lumber Co. v. Conn, 20 S.W.2d 388 (TexiClv.App. 29 error dlsm.) An agent's acts, within the scope'oi hls.authorlty,are the acts of his principal. 2 Tex.Juti. 2d 437, Agency, Sec. 2. Under the factsin this situation, the broker would be a specialagent and as such, his acts would be the acts of the burial lot owners.

'ItIs our oplnldn that a broker of cemetery~ lots wouldnot be transac'tlng any of the business of operating a cemetery and thus would not be regulated under Articlegl2a, Vernon's Civil Statutes.

However, the enterprise In questionwould fall under the regulatlons,ofthe Real Estate GLcenseAct, Art. 6573a, Vernon's Civil Statutes, and under the penal provlslonsof Art. 705b, Sec. 1, Vernon's Penal Code. Section 4 of Art. 6573a, Real Estate License Act, Vernon's Civil Statutes, reads:

"Sec.4. The following terms shall, unless the context otherwise indicates,have the following .meaning: "(1) The term 'RealEstate B?oker' shallmean and include any person who, for another or others and for compensatlo~or with the Intentionor In the expectation or upon the promise of receiving or collecting compensation:

-1730-Honorable Bill Lofland,page 3 (~1365 )

"(a) Sells, exchanges,purchases:, rents or leases real estate; "(b) Offers tb sell, exchange,purchase, rent or lease real estate; "(c) Negotiates, or offers or attempts or agrees to negotiate the'sale, exchange, purchase rental or.leaslng..of+re@l estate; "(d) Lists or offers or attempts or agrees to list real estate for sale, rental, lease, exchange or trade; **+ "(I) Advertises or holds himself out as being engaged In the business of buying, selling, exchanging,renting or leasing real estate;
cur&(3 pEospects

rocures or assists In the procalculated to result' In the sale, exchanie, leasing or rental of real estate; "(2) The term 'RealEstate Broker' shall also include any person employed by or on behalf of the owner or owners.of real estate at a stated salary or upon a commissionor upon a salary and commission basis or other compensation to sell, exchange or offer for sale such real estate or any part thereof who shall sell, exchange or offer or attempt ol: agree,td negotiate the sale or exchange of any lot or parcel of real estate; provided, however, If the owner of lots or~other parcels 1s engaged .lnthe business of buying, selling, exchanging, leasing, or renting a, property~ and holding himself out as a full or parttime broker In real estate, then,suchperson employed bx said owner may be ~llcens&d as a salesman.Honorable Bill Lofland,page 4 (c-365 )

It is unlawful for any person to perform any of the above acts without obtaining a license as provided for by theAct. Art. 6573a, Sec. 1, V.C.S. (Real Estate License Act).

While an Interest In a burial lot has been described as a fee limited in purpose,'aneasement,or a license, It Is, In any event, an Interest In real estate. vs. Paine, 319 S.W.2d 653 (Mo.Sup.,1959); Oak Par l?FikF tery vs. Donaldson, 148 S.W.2d 994 (Tex.Clv.App.,l'Tsa;- error dlam., u g. car.).

It Is our opinion that the Interest In a burial lot la real estate as contemplatedby the statute; that the transactionsof ;? broker.of cemetery lots cleakly fall within the definitionof a Real Estate Broker, and as such the enterprisela subject to the regulations under the Real Estate LicenseAct.

We further conclude that a broker of cemetery lots would be subject to Art. 705b-1,Vernon's Penal Code, which reads:

"It shall be unlawful 'forany person, . . . agent, or employeethereof,to sell, offer for sale, or advertiseany cemeteryplot or the exclusiveright of sepulture therein under the representationthat such plot Is -under

perpetual care,before a perpetual care fund as provided for by law has been established for the c'emetery In which such property so sold, offered for sale, or advertised Is situated;or to engage In or transactany of the businessesof a cemetery within this State other than. by means of a corporationorganized for such purpose, except as othertilse provided by law;

. . . or to sell or offer for sale or advertise for sale cemetery lots or the exclusive right of sepulturetherein for purposes of speculationor Investment;or to represent throughadvertisingor printedmatter that a retail departmentwill laterbe established for the resale of cemetery lot purchasers that specific Improvementswill be made In the cemetery or that specificmerchandise.

-1732-Honorable Bill Lofland,page 5 (c-365 1

or servicewlll be furnished the lot owner, unless adequate funds or reserveshave been createdby the operator of the,cemetery for each such purpose; . . . . Any person

. . .violatingany of the provisionsof this Section shall be guilty of misdemeanor and on conviction thereof shall be fined not more than Five Hundred Dollars ($500) or, If a person, imprisonednot exceeding six (6) months In a county Jail, or punished by both such fine and imprisonment.

. . . 'andfor such purposes venue Is hereby conferred upon the.DlstrlctCourts In this State." Any violationof this statutewould subject such person to the penalties and punishmentprescribed therein.

SUMMARY -------
1. A broker of cemetery lots Is not subject to the regulationsof Art. 912a, Vernon's Civil Statutes.

A broker of cemetery lots la subje% to Art. 6573a the Real Esta,te License Act, Vernon~s'ClvllStatutes, and Art. 705b, Sec. 1, Vernon's Penal Code. Very truly yours, WAQQONRR CARR Attorney'

Qeneral of Texas

CFV:ss :

-1733-Honorable Bill Lofland,page 6 (c-365 )

APPROVED: OPINION COMMITTEE
W. V. Qeppert, Chairman J. Qordon Zuber V. F. Taylor Llnward Shivers Charles Swarmer APPROVEDFOR !IliE

ATTORNEYQENERAL By: Stanton Stone

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