GA Code § 43-40-22 (2021)
2021 Georgia Code|Title 43 - Professions and Businesses|Chapter 40 - Real Estate Brokers and Salespersons|§ 43-40-22. Real Estate Education, Research, and Recovery Fund; Revocation of License Upon Court Order for Payment From Fund; Subrogation

  The commission is authorized and directed to establish and maintain a real estate education, research, and recovery fund. All funds in the real estate recovery fund established by Ga. L. 1973, p. 100, shall be transferred to and utilized through the real estate education, research, and recovery fund.   The commission shall maintain a minimum balance of $1 million in the real estate education, research, and recovery fund from which any person, except bonding companies when they are not principals in a real estate transaction, aggrieved by an act, representation, transaction, or conduct of a licensee which is in violation of this chapter or of the rules and regulations of the commission promulgated pursuant thereto, may recover, by order of any court having competent jurisdiction, actual or compensatory damages, not including interests and costs sustained by the act, representation, transaction, or conduct, provided that nothing shall be construed to obligate the fund for more than $25,000.00 per transaction regardless of the number of persons aggrieved or parcels of real estate involved in such transaction. In addition:   The liability of the fund for the acts of a licensee, when acting as such, is terminated upon the issuance of court orders authorizing payments from the fund for judgments, or any unsatisfied portion of judgments, in an aggregate amount of $75,000.00 on behalf of such licensee;   A licensee acting as a principal or agent in a real estate transaction has no claim against the fund; and   No person who establishes a proper claim or claims under this Code section shall ever obtain more than $25,000.00 from the fund.     When any person makes application for an original license to practice as a licensee, that person shall pay, in addition to the original license fee, a fee in an amount established by the commission for deposit in the education, research, and recovery fund.     No action for a judgment which subsequently results in an order for collection from the real estate education, research, and recovery fund shall be started later than two years from the accrual of the cause of action thereon. The commission shall have the right to intervene in and defend any such action.   When any aggrieved person recovers a valid judgment in any court of competent jurisdiction against any licensee for any act, representation, transaction, or conduct which is in violation of this chapter, or of the regulations promulgated pursuant thereto, which act occurred on or after July 1, 1973, the aggrieved person may, upon termination of all proceedings, including reviews and appeals in connection with the judgment, file a verified claim in the court in which the judgment was entered and, upon 30 days' written notice to the commission, may apply to the court for an order directing payment out of the real estate education, research, and recovery fund of the amount unpaid upon the judgment, subject to the limitations stated in this Code section. The commission shall have the right to intervene in and object to such verified claim on the issue of whether or not the claim was in violation of this chapter or of the rules and regulations of the commission promulgated pursuant thereto.   The court shall proceed upon such application in a summary manner and, upon the hearing thereof, the aggrieved person shall be required to show that such person:   At the time of the cause of action, was not a spouse of the judgment debtor; or a parent, sibling, or child of the judgment debtor or the judgment debtor's spouse; or the personal representative of such person or persons;   Has complied with all the requirements of this Code section;   Has obtained a judgment, as set out in paragraph (2) of this subsection, stating the amount thereof and the amount owing thereon at the date of the application; and that, in such action, the aggrieved person had joined any and all bonding companies which issued corporate surety bonds to the judgment debtors as principals and all other necessary parties;   Has caused to be issued a writ of execution upon such judgment and the officer executing the same has made a return showing that no personal or real property of the judgment debtor liable to be levied upon in satisfaction of the judgment could be found or that the amount realized on the sale of them or of such of them as were found, under such execution, was insufficient to satisfy the judgment, stating the amount so realized and the balance remaining due to the judgment after application thereon of the amount realized;   Has caused the judgment debtor to make discovery under oath concerning the judgment debtor's property, in accordance with Chapter 11 of Title 9, the "Georgia Civil Practice Act";   Has made all reasonable searches and inquiries to ascertain whether the judgment debtor is possessed of real or personal property or other assets liable to be sold or applied in satisfaction of the judgment;   Has discovered by such search no personal or real property or other assets liable to be sold or applied or that certain of them, being described, owned by the judgment debtor and liable to be so applied have been discovered and that the aggrieved person has taken all necessary action and proceedings for the realization thereof and that the amount thereby realized was insufficient to satisfy the judgment, stating the amount so realized and the balance remaining due on the judgment after application of the amount realized; and   Has applied the following items, if any, as recovered by the aggrieved person, to the actual or compensatory damages awarded by the court:   Any amount recovered from the judgment debtor or debtors;   Any amount recovered from the bonding company or companies; or   Any amount recovered in out-of-court settlements as to particular defendants.       Whenever the aggrieved person satisfies the court that it is not practical to comply with one or more of the requirements enumerated in subparagraphs (D), (E), (F), (G), and (H) of paragraph (3) of this subsection and that the aggrieved person has taken all reasonable steps to collect the amount of the judgment or the unsatisfied part thereof and has been unable to collect the same, the court may, in its discretion, dispense with the necessity for complying with such requirements.   The court shall make an order directed to the commission requiring payment from the real estate education, research, and recovery fund of whatever sum it shall find to be payable upon the claim, pursuant to the provisions of and in accordance with the limitations contained in this Code section, if the court is satisfied, upon the hearing, of the truth of all matters required to be shown by the aggrieved person by paragraph (3) of this subsection and is satisfied that the aggrieved person has fully pursued and exhausted all remedies available to him or her for recovering the amount awarded by the judgment of the court.   Should the commission pay from the real estate education, research, and recovery fund any amount in settlement of a claim or toward satisfaction of a judgment against a licensee, the license of such licensee shall be automatically revoked upon the issuance of a court order authorizing payment from the real estate education, research, and recovery fund. If such license is that of a firm, the license of the qualifying broker of the firm shall automatically be revoked upon the issuance of a court order authorizing payment from the real estate education, research, and recovery fund. No such licensee shall be eligible to receive a new license until such licensee has repaid in full, plus interest at the judgment rate in accordance with Code Section 7-4-12, the amount paid from the real estate education, research, and recovery fund on such licensee's account. A discharge in bankruptcy shall not relieve a person from the penalties and disabilities provided in this subsection.   If, at any time, the money deposited in the real estate education, research, and recovery fund is insufficient to satisfy any duly authorized claim or portion thereof, the commission shall, when sufficient money has been deposited in the real estate education, research, and recovery fund, satisfy such unpaid claims or portions thereof in the order that such claims or portions thereof were originally filed, plus accumulated interest at the rate of 4 percent a year.     The sums received by the commission pursuant to any provisions of this Code section shall be deposited into the state treasury and held in a special fund to be known as the "Real Estate Education, Research, and Recovery Fund" and shall be held by the commission in trust for carrying out the purposes of this Code section. These funds may be invested in any investments which are legal for domestic insurance companies under Articles 1 and 3 of Chapter 11 of Title 33, and the interest from these investments shall be deposited to the credit of the real estate education, research, and recovery fund and shall be available for the same purposes as all other money deposited in the real estate education, research, and recovery fund.   It shall be unlawful for any person or his agent to file with the commission any notice, statement, or other document required under this Code section which is false, untrue, or contains any material misstatement of fact and shall constitute a misdemeanor.   When the commission receives notice, as provided in subsection (d) of this Code section, the commission may enter an appearance, file an answer, appear at the court hearing, defend the action, or take whatever other action it may deem appropriate on behalf and in the name of the defendant and take recourse through any appropriate method of review on behalf of and in the name of the defendant.   When, upon the order of the court, the commission has paid from the real estate education, research, and recovery fund any sum to the judgment creditor, the commission shall be subrogated to all of the rights of the judgment creditor. The judgment creditor shall assign all his right, title, and interest in the judgment to the commission before any payment is made from the fund, and any amount and interest so recovered by the commission on the judgment shall be deposited to the fund. If the total amount collected on the judgment by the commission exceeds the amount paid from the fund to the original judgment creditor plus interest and the cost of collection, the commission may elect to pay any overage collected to the original judgment creditor or reassign the remaining interest in the judgment to the original judgment creditor. The payment or reassignment to the original judgment creditor shall not subject the fund to further liability for payment to the original judgment creditor based on that transaction or judgment. Any costs incurred by the commission attempting to collect assigned judgments shall be paid from the fund.   The failure of an aggrieved person to comply with all of the provisions of this Code section shall constitute a waiver of any rights under this Code section.   The commission, in its discretion, may use any and all funds from new licensee payments to the real estate education, research, and recovery fund or from accrued interest earned on the fund for the purpose of helping to underwrite the cost of developing courses, conducting seminars, conducting research projects on matters affecting real estate brokerage, publishing and distributing educational materials, or other education and research programs for the benefit of licensees and the public as the commission may approve in accordance with the provisions of this chapter and its rules and regulations; provided, however, that the commission shall not expend or commit sums for educational or research purposes in such amounts as would cause the real estate education, research, and recovery fund to be reduced to an amount less than $1 million.   In addition to the license fees provided for in this chapter, the commission, in its discretion and based upon the need to ensure that a minimum balance of $1 million is maintained in the real estate education, research, and recovery fund, may assess each licensee, only upon renewal of the license, an amount not to exceed $30.00 per year.    (Code 1933, § 84-1424, enacted by Ga. L. 1973, p. 100, § 1; Ga. L. 1979, p. 1203, § 4; Ga. L. 1981, p. 1311, § 7; Ga. L. 1982, p. 1001, §§ 8, 15; Ga. L. 1985, p. 360, §§ 11-13; Ga. L. 1986, p. 10, § 43; Ga. L. 1988, p. 1395, § 1; Ga. L. 1989, p. 1619, § 7; Ga. L. 1993, p. 123, § 57; Ga. L. 1999, p. 592, § 18; Ga. L. 2000, p. 1527, § 20; Ga. L. 2000, p. 1589, § 3; Ga. L. 2012, p. 1099, §§ 10, 11/SB 365.)   Code Commission notes.   - Pursuant to Code Section 28-9-5, in 1985, "subparagraphs (D), (E), (F), (G), and (H) of paragraph (3)" was substituted for "subparagraphs (3)(D), (3)(E), (3)(F), (3)(G), and (3)(H)" in paragraph (d)(4) and "under this Code section" was substituted for "hereunder" in subsection (i).   Editor's notes.   - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the amendment to paragraph (d)(1) is applicable with respect to notices delivered on or after July 1, 2000.   Law reviews.   - For article, "The Georgia Real Estate Education, Research, and Recovery Fund: An Elusive Pot of Gold at the End of the Rainbow," see 24 Ga. St. B. J. 86 (1987).   JUDICIAL DECISIONS   Purpose of recovery fund provisions.    - O.C.G.A. § 43-40-22(a) is intended to ensure payment to a successful plaintiff against a defendant who might otherwise be judgment proof. Campagna v. Sara Hudson Realty Co., 137 Ga. App. 451, 224 S.E.2d 102 (1976).   Commission given adequate notice of suit.    - When the plaintiff filed suit against an incorporated realtor for return of earnest money paid, and subsequently filed a separate action against the broker individually, and notified the Real Estate Commission only at the time the second action was filed, the commission was given notice as required by O.C.G.A. § 43-40-22(d)(1). Residential Dev., Inc. v. Massicott, 260 Ga. 319, 392 S.E.2d 706 (1990).    Cited in Citizens & S. Nat'l Bank v. AVCO Fin. Servs., Inc., 129 Ga. App. 605, 200 S.E.2d 309 (1973); Morris v. Atlanta Legal Aid Soc'y, Inc., 222 Ga. App. 62, 473 S.E.2d 501 (1996).   RESEARCH REFERENCES   ALR.   - Right of principal to recover punitive damages for agent's or broker's breach of duty, 67 A.L.R.2d 952.