CO Code § 12-10-201 (2021)
2021 Colorado Code|Title 12 - Professions and Occupations|Article 10 - Real Estate|Part 2 - Brokers and Salespersons|§ 12-10-201. Definitions

 As used in this part 2, unless the context otherwise requires:    “Commission” means the real estate commission created in section 12-10-206.    “Employing real estate broker” or “employing broker” means a broker who is shown in commission records as employing or engaging another broker.    “Limited liability company” shall have the same meaning as it is given in section 7-80-102 (7).    “Option dealer” means any person, firm, partnership, limited liability company, association, or corporation that, directly or indirectly, takes, obtains, or uses an option to purchase, exchange, rent, or lease real property or any interest therein with the intent or for the purpose of buying, selling, exchanging, renting, or leasing the real property or interest therein to another or others, whether or not the option is in that person's or its name and whether or not title to said property passes through the name of the person, firm, partnership, limited liability company, association, or corporation in connection with the purchase, sale, exchange, rental, or lease of the real property or interest therein.    “Partnership” includes, but is not limited to, a registered limited liability partnership.      “Real estate broker” or “broker” means any person, firm, partnership, limited liability company, association, or corporation that, in consideration of compensation by fee, commission, salary, or anything of value or with the intention of receiving or collecting such compensation, engages in or offers or attempts to engage in, either directly or indirectly, by a continuing course of conduct or by any single act or transaction, any of the following acts:   Selling, exchanging, buying, renting, or leasing real estate, or interest therein, or improvements affixed thereon;    Offering to sell, exchange, buy, rent, or lease real estate, or interest therein, or improvements affixed thereon;    Selling or offering to sell or exchange an existing lease of real estate, or interest therein, or improvements affixed thereon;    Negotiating the purchase, sale, or exchange of real estate, or interest therein, or improvements affixed thereon;    Listing, offering, attempting, or agreeing to list real estate, or interest therein, or improvements affixed thereon for sale, exchange, rent, or lease;    Auctioning or offering, attempting, or agreeing to auction real estate, or interest therein, or improvements affixed thereon;    Buying, selling, offering to buy or sell, or otherwise dealing in options on real estate, or interest therein, or improvements affixed thereon, or acting as an “option dealer”;    Performing any of the foregoing acts as an employee of, or on behalf of, the owner of real estate, or interest therein, or improvements affixed thereon at a salary or for a fee, commission, or other consideration;    Negotiating or attempting or offering to negotiate the listing, sale, purchase, exchange, or lease of a business or business opportunity or the goodwill thereof or any interest therein when the act or transaction involves, directly or indirectly, any change in the ownership or interest in real estate, or in a leasehold interest or estate, or in a business or business opportunity that owns an interest in real estate or in a leasehold unless the act is performed by any broker-dealer licensed under the provisions of article 51 of title 11 who is actually engaged generally in the business of offering, selling, purchasing, or trading in securities or any officer, partner, salesperson, employee, or other authorized representative or agent thereof; or    Soliciting a fee or valuable consideration from a prospective tenant for furnishing information concerning the availability of real property, including apartment housing that may be leased or rented as a private dwelling, abode, or place of residence. Any person, firm, partnership, limited liability company, association, or corporation or any employee or authorized agent thereof engaged in the act of soliciting a fee or valuable consideration from any person other than a prospective tenant for furnishing information concerning the availability of real property, including apartment housing that may be leased or rented as a private dwelling, abode, or place of residence, is exempt from this definition of “real estate broker” or “broker”. This exemption applies only in respect to the furnishing of information concerning the availability of real property.       “Real estate broker” or “broker” does not apply to any of the following:   Any attorney-in-fact acting without compensation under a power of attorney, duly executed by an owner of real estate, authorizing the consummation of a real estate transaction;    Any public official in the conduct of his or her official duties;    Any receiver, trustee, administrator, conservator, executor, or guardian acting under proper authorization;    Any person, firm, partnership, limited liability company, or association acting personally or a corporation acting through its officers or regularly salaried employees, on behalf of that person or on its own behalf as principal in acquiring or in negotiating to acquire any interest in real estate;    An attorney-at-law in connection with his or her representation of clients in the practice of law;    Any person, firm, partnership, limited liability company, association, or corporation, or any employee or authorized agent thereof, engaged in the act of negotiating, acquiring, purchasing, assigning, exchanging, selling, leasing, or dealing in oil and gas or other mineral leases or interests therein or other severed mineral or royalty interests in real property, including easements, rights-of-way, permits, licenses, and any other interests in real property for or on behalf of a third party, for the purpose of, or facilities related to, intrastate and interstate pipelines for oil, gas, and other petroleum products, flow lines, gas gathering systems, and natural gas storage and distribution;    A natural person acting personally with respect to property owned or leased by that person or a natural person who is a general partner of a partnership, a manager of a limited liability company, or an owner of twenty percent or more of such partnership or limited liability company, and authorized to sell or lease property owned by the partnership or limited liability company, except as provided in subsection (4) of this section;    A corporation with respect to property owned or leased by it, acting through its officers or regularly salaried employees, when the acts are incidental and necessary in the ordinary course of the corporation's business activities of a non-real-estate nature (but only if the corporation is not engaged in the business of land transactions), except as provided in subsection (4) of this section. For the purposes of this subsection (6)(b)(VIII), the term “officers or regularly salaried employees” means persons regularly employed who derive not less than seventy-five percent of their compensation from the corporation in the form of salaries.    A principal officer of any corporation with respect to property owned by it when the property is located within the state of Colorado and when the principal officer is the owner of twenty percent or more of the outstanding stock of the corporation, except as provided in subsection (4) of this section, but this exemption does not include any corporation selling previously occupied one-family and two-family dwellings;    A sole proprietor, corporation, partnership, or limited liability company, acting through its officers, partners, or regularly salaried employees, with respect to property owned or leased by the sole proprietor, corporation, partnership, or limited liability company on which has been or will be erected a commercial, industrial, or residential building that has not been previously occupied and where the consideration paid for the property includes the cost of the building, payable, less deposit or down payment, at the time of conveyance of the property and building;    (A) A corporation, partnership, or limited liability company acting through its officers, partners, managers, or regularly salaried employees receiving no additional compensation therefor, or its wholly owned subsidiary or officers, partners, managers, or regularly salaried employees thereof receiving no additional compensation, with respect to property located in Colorado that is owned or leased by the corporation, partnership, or limited liability company and on which has been or will be erected a shopping center, office building, or industrial park when such shopping center, office building, or industrial park is sold, leased, or otherwise offered for sale or lease in the ordinary course of the business of the corporation, partnership, limited liability company, or wholly owned subsidiary.    A regularly salaried employee of an owner of an apartment building or complex who acts as an on-site manager of such an apartment building or complex. This exemption applies only in respect to the customary duties of an on-site manager performed for his or her employer.    A regularly salaried employee of an owner of condominium units who acts as an on-site manager of such units. For purposes of this subsection (6)(b)(XIII) only, the term “owner” includes a homeowners' association formed and acting pursuant to its recorded condominium declaration and bylaws. This exemption applies only in respect to the customary duties of an on-site manager performed for his or her employer.    A real estate broker licensed in another state who receives a share of a commission or finder's fee on a cooperative transaction from a licensed Colorado real estate broker;    A sole proprietor, corporation, partnership, or limited liability company, acting through its officers, partners, or regularly salaried employees, with respect to property located in Colorado, where the purchaser of the property is in the business of developing land for residential, commercial, or industrial purposes;    Any person, firm, partnership, limited liability company, association, or corporation, or any employee or authorized agent thereof, engaged in the act of negotiating, purchasing, assigning, exchanging, selling, leasing, or acquiring rights-of-way, permits, licenses, and any other interests in real property for, or on behalf, of a third party for the purpose of, or facilities related to:   Telecommunication lines;    Wireless communication facilities;    CATV;    Electric generation, transmission, and distribution lines;    Water diversion, collection, distribution, treatment, and storage or use; and    Transportation, so long as the person, firm, partnership, limited liability company, association, or corporation, including any employee or authorized agent thereof, does not represent any displaced person or entity as an agent thereof in the purchase, sale, or exchange of real estate, or an interest therein, resulting from residential or commercial relocations required under any transportation project, regardless of the source of public funding.              History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 614, § 1, effective October 1.    Editor's note:   This section is similar to former § 12-61-101 as it existed prior to 2019; except that § 12-61-101 (1.2) was relocated to § 12-10-101 (3) .   ANNOTATION   Law reviews. For article, “Finders and Finders' Fees”, see 47 Den. L.J. 448 (1970). For article, “Timesharing in Colorado”, see 11 Colo. Law. 2804 (1982). For article, “Colorado ‘Buyer Brokerage': Does it Still Exist After Velten v. Robertson?”, see 55 U. Colo. L. Rev. 83 (1983). For article, “Implications of Zimmerman on Buyer Brokerage in Colorado”, see 13 Colo. Law. 992 (1984).   Annotator's note. The following annotations include cases decided under former provisions similar to this section.   Intent of this section is to align Colorado with the majority rule that requires a finder or business broker to have a real estate broker's license if the sale of the business includes a transfer of any interest in real estate. Broughall v. Black Forest Dev. Co., 196 Colo. 503 , 593 P.2d 314 (1978).   A real estate broker is defined by this section. Cary v. Borden Co., 153 Colo. 344 , 386 P.2d 585 (1963).   To be broker, one must find person to whom to sell, or from whom to buy, as case may be. Stank v. Michaelson, 32 Colo. App. 75, 506 P.2d 757 (1973).   Definition of real estate broker to be liberally construed for purposes of determining who may be reimbursed from the real estate recovery fund because of the remedial purposes of that fund. Moeller v. Colo. Real Estate Comm'n, 759 P.2d 697 (Colo. 1988).   “Real estate broker” includes one who offers to negotiate the sale of a business by transfer of stock when the business owns a leasehold interest in real estate. Barton v. Sittner, 723 P.2d 153 (Colo. App. 1986).   A real estate finder falls under the definition of a real estate broker. The definition of a real estate broker does not recognize a distinction between a broker and a finder. The legislative intent is to extend the definition to include the full spectrum of activities related to the sale of real estate. Amedeus Corp. v. McAllister, 232 P.3d 107 (Colo. App. 2009).   One who is merely an employee of a real estate brokerage company, and is engaged in selling the company's property, is not a real estate broker within the meaning of this section. Black Forest Realty & Inv. Co. v. Clarke, 86 Colo. 454 , 282 P. 878 (1929).   Term “real estate broker” includes all activities related to sale of real estate. The legislative history of this section reveals a legislative intent to enlarge and extend the definition of the term “real estate broker” to include the full spectrum of activities related to the sale of real estate. Brakhage v. Georgetown Assocs., 33 Colo. App. 385, 523 P.2d 145 (1974).   No distinction between finder and broker. There is no distinction between a finder who merely introduces prospective buyers and sellers and a broker who participates in the details of the transaction. Brakhage v. Georgetown Assocs., 33 Colo. App. 385, 523 P.2d 145 (1974).   The phrase “real estate . . . or improvements affixed thereon” in subsection (2)(a) refers to improvements situate on real estate at the time of the sale or attempted sale. Lemler v. Real Estate Comm'n, 38 Colo. App. 489, 558 P.2d 591 (1976).   Transfer of shares of corporation which owned interest in real estate was a transaction involving a change in “ownership or interest . . . in a business . . . which owns an interest in real estate”. Brakhage v. Georgetown Assocs., 33 Colo. App. 385, 523 P.2d 145 (1974).   Arranging for a loan that is secured by a deed of trust on real property does not involve a transaction that is an exchange of “an interest” in real estate, for the placing of a lien against property does not constitute a sale or exchange as those terms are used in this section. Bamford v. Cope, 31 Colo. App. 161, 499 P.2d 639 (1972).   Term “negotiate” includes act of bringing two parties together for the purpose of consummating a real estate transaction. Brakhage v. Georgetown Assocs., 33 Colo. App. 385, 523 P.2d 145 (1974); Am. W. Motel Brokers, Inc. v. Wu, 697 P.2d 34 (Colo. 1985).   Purpose of the exemptions in subsection (4) is to permit an owner of property to sell it or to permit one to purchase property for his own account without having to procure a real estate license. Seibel v. Colo. Real Estate Comm'n, 34 Colo. App. 415, 530 P.2d 1290 (1974).   The purpose of the exemption set forth in subsection (4)(g) is to allow a private owner of real estate to sell it without having to obtain a real estate license. Richards v. Income Realty & Mtg., Inc., 654 P.2d 864 (Colo. App. 1982).   This section was not intended to be used by a salesman or broker who also happens to own real estate as a means of subverting the purpose of the real estate recovery fund. Richards v. Income Realty & Mtg., Inc., 654 P.2d 864 (Colo. App. 1982).   Mineral tailings lying on real property as waste may not properly be characterized as a severed mineral interest for purposes of subsection (4)(f). Such tailings are deemed to become annexed to the real property over time and thus do not provide justification for use of the exception to licensure requirements for selling a severed mineral interest. Kerr v. Australia Pac. Res., Ltd., 841 P.2d 401 (Colo. App. 1992).   Subsection (4) has no application to the matter of discipline of licensed real estate brokers and salesmen. Seibel v. Colo. Real Estate Comm'n, 34 Colo. App. 415, 530 P.2d 1290 (1974).   Agency status of real estate salesmen. A licensed real estate salesman may not be employed in that capacity by a buyer or seller of real property but may only be employed by, and receive compensation from, his broker. Thus, a real estate salesman who obtains a listing contract from a seller and acts as the procuring cause in a sale or a salesman who represents a buyer in the sale of realty functions only as an agent for the broker and acts as the broker's representative in the transaction. Becker v. Arnold, 42 Colo. App. 178, 591 P.2d 596 (1979); Olsen v. Bondurant & Co., 759 P.2d 861 (Colo. App. 1988).   Conduct of real estate salespersons employed by real estate brokerage firm constituted active competition and resulted in a breach of their duty of loyalty to conduct business activities solely on behalf of firm. Koontz v. Rosener, 787 P.2d 192 (Colo. App. 1989).   Applied in Schwartz v. Weiner, 94 Colo. 251 , 30 P.2d 1110 (1934); Benham v. Heyde, 122 Colo. 233 , 221 P.2d 1078 (1950); White v. Brock, 41 Colo. App. 156, 584 P.2d 1224 (1978); Backus v. Apishapa Land & Cattle Co., 44 Colo. App. 59, 615 P.2d 42 (1980).