2023 Nebraska Revised Statutes › Chapter 81 - State Administrative Departments › 81-885.24 - Commission; investigative powers; disciplinary powers; civil fine; violations of unfair trade practices.

81-885.24.
Commission; investigative powers; disciplinary powers; civil fine; violations of unfair trade practices.
The commission may, upon its own motion, and shall, upon the sworn complaint in writing of any person, investigate the actions of any broker, associate broker, salesperson, or subdivider, may censure the licensee or certificate holder, revoke or suspend any license or certificate issued under the Nebraska Real Estate License Act, or enter into consent orders, and, alone or in combination with such disciplinary actions, may impose a civil fine on a licensee pursuant to section 81-885.10, whenever the license or certificate has been obtained by false or fraudulent representation or the licensee or certificate holder has been found guilty of any of the following unfair trade practices:
(1) Refusing because of religion, race, color, national origin, ethnic group, sex, familial status, or disability to show, sell, or rent any real estate for sale or rent to prospective purchasers or renters;
(2) Intentionally using advertising which is misleading or inaccurate in any material particular or in any way misrepresents any property, terms, values, policies, or services of the business conducted;
(3) Failing to account for and remit any money coming into his or her possession belonging to others;
(4) Commingling the money or other property of his or her principals with his or her own;
(5) Failing to maintain and deposit in a separate trust account all money received by a broker acting in such capacity, or as escrow agent or the temporary custodian of the funds of others, in a real estate transaction unless all parties having an interest in the funds have agreed otherwise in writing;
(6) Accepting, giving, or charging any form of undisclosed compensation, consideration, rebate, or direct profit on expenditures made for a principal;
(7) Representing or attempting to represent a real estate broker, other than the employer, without the express knowledge and consent of the employer;
(8) Accepting any form of compensation or consideration by an associate broker or salesperson from anyone other than his or her employing broker without the consent of his or her employing broker;
(9) Acting in the dual capacity of agent and undisclosed principal in any transaction;
(10) Guaranteeing or authorizing any person to guarantee future profits which may result from the resale of real property;
(11) Placing a sign on any property offering it for sale or rent without the written consent of the owner or his or her authorized agent;
(12) Offering real estate for sale or lease without the knowledge and consent of the owner or his or her authorized agent or on terms other than those authorized by the owner or his or her authorized agent;
(13) Inducing any party to a contract of sale or lease to break such contract for the purpose of substituting, in lieu thereof, a new contract with another principal;
(14) Negotiating a sale, exchange, listing, or lease of real estate directly with an owner or lessor if he or she knows that such owner has a written outstanding listing contract in connection with such property granting an exclusive agency or an exclusive right to sell to another broker or negotiating directly with an owner to withdraw from or break such a listing contract for the purpose of substituting, in lieu thereof, a new listing contract;
(15) Discussing or soliciting a discussion of, with an owner of a property which is exclusively listed with another broker, the terms upon which the broker would accept a future listing upon the expiration of the present listing unless the owner initiates the discussion;
(16) Violating any provision of sections 76-2401 to 76-2430;
(17) Soliciting, selling, or offering for sale real estate by offering free lots or conducting lotteries for the purpose of influencing a purchaser or prospective purchaser of real estate;
(18) Providing any form of compensation or consideration to any person for performing the services of a broker, associate broker, or salesperson who has not first secured his or her license under the Nebraska Real Estate License Act unless such person is (a) a nonresident who is licensed in his or her resident regulatory jurisdiction or (b) a citizen and resident of a foreign country which does not license persons conducting the activities of a broker and such person provides reasonable written evidence to the Nebraska broker that he or she is a resident citizen of that foreign country, is not a resident of this country, and conducts the activities of a broker in that foreign country;
(19) Failing to include a fixed date of expiration in any written listing agreement and failing to leave a copy of the agreement with the principal;
(20) Failing to deliver within a reasonable time a completed and dated copy of any purchase agreement or offer to buy or sell real estate to the purchaser and to the seller;
(21) Failing by a broker to deliver to the seller in every real estate transaction, at the time the transaction is consummated, a complete, detailed closing statement showing all of the receipts and disbursements handled by such broker for the seller, failing to deliver to the buyer a complete statement showing all money received in the transaction from such buyer and how and for what the same was disbursed, and failing to retain true copies of such statements in his or her files;
(22) Making any substantial misrepresentations;
(23) Acting for more than one party in a transaction without the knowledge of all parties for whom he or she acts;
(24) Failing by an associate broker or salesperson to place, as soon after receipt as practicable, in the custody of his or her employing broker any deposit money or other money or funds entrusted to him or her by any person dealing with him or her as the representative of his or her licensed broker;
(25) Filing a listing contract or any document or instrument purporting to create a lien based on a listing contract for the purpose of casting a cloud upon the title to real estate when no valid claim under the listing contract exists;
(26) Violating any rule or regulation adopted and promulgated by the commission in the interest of the public and consistent with the Nebraska Real Estate License Act;
(27) Failing by a subdivider, after the original certificate has been issued, to comply with all of the requirements of the Nebraska Real Estate License Act;
(28) Conviction of a felony or entering a plea of guilty or nolo contendere to a felony charge by a broker or salesperson;
(29) Demonstrating negligence, incompetency, or unworthiness to act as a broker, associate broker, or salesperson, whether of the same or of a different character as otherwise specified in this section;
(30) Inducing or attempting to induce a person to transfer an interest in real property, whether or not for monetary gain, or discouraging another person from purchasing real property, by representing that (a) a change has occurred or will or may occur in the composition with respect to religion, race, color, national origin, ethnic group, sex, familial status, or disability of the owners or occupants in the block, neighborhood, or area or (b) such change will or may result in the lowering of property values, an increase in criminal or antisocial behavior, or a decline in the quality of schools in the block, neighborhood, or area;
(31) Failing by a team leader to provide a current list of all team members to his or her designated broker;
(32) Failing by a designated broker to maintain a record of all team leaders and team members working under him or her;
(33) Utilizing advertising which does not prominently display the name under which the designated broker does business as filed with the commission;
(34) Utilizing team advertising or a team name suggesting the team is an independent real estate brokerage;
(35) Charging or collecting, as part or all of his or her compensation or consideration, any part of the earnest money or other money paid to him or her or the entity under which he or she does business in connection with any real estate transaction until the transaction has been consummated or terminated. However, a payment for goods or services rendered by a third party on behalf of the client shall not be considered compensation or consideration if such payment does not include any profit, compensation, or payment for services rendered by the broker and the broker retains a record of the payment to the third party for such goods or services; or
(36) Failing to provide a copy of section 81-885.04 or written instructions explaining the provisions of the exemption from licensure as set forth in subdivision (9) of section 81-885.04 to any unlicensed person who assists in procuring a potential client or customer as defined in sections 76-2407 and 76-2409, respectively, for the purpose of the listing, sale, purchase, exchange, renting, leasing, or optioning of any real estate.
Source
Laws 1973, LB 68, § 24;
Laws 1975, LB 354, § 3;
Laws 1978, LB 361, § 10;
Laws 1981, LB 238, § 2;
Laws 1982, LB 403, § 1;
Laws 1983, LB 182, § 20;
Laws 1985, LB 109, § 1;
Laws 1990, LB 350, § 11;
Laws 2002, LB 863, § 19;
Laws 2009, LB30, § 7;
Laws 2011, LB25, § 17;
Laws 2011, LB347, § 2;
Laws 2016, LB678, § 4;
Laws 2017, LB16, § 5;
Laws 2020, LB808, § 95.
Annotations
1. Misconduct and unfair trade practices
2. Miscellaneous
1. Misconduct and unfair trade practices
The Real Estate Commission shall have the power to censure the licensee or certificate holder whenever the licensee or certificate holder has been found guilty of either of the following unfair trade practices: (1) failing to deliver within a reasonable time a completed copy of any purchase agreement or offer to buy or sell real estate to the purchaser and the seller, or (2) acting for more than one party in a transaction without the knowledge of all parties for whom he or she acts. Firmature v. Brannon, 223 Neb. 123, 388 N.W.2d 119 (1986).
For the purposes of subsection (28) of this section regarding revocation or suspension of a real estate broker's license, incompetence means failure to meet requirements for a minimal level of acceptable conduct. Weiner v. State ex rel. Real Estate Comm., 217 Neb. 372, 348 N.W.2d 879 (1984).
Evidence supported commission's suspension of appellant's real estate license for six months after hearing on complaint that appellant engaged in an unfair trade practice as defined by this section. Abboud v. State ex rel. State Real Estate Comm., 210 Neb. 676, 316 N.W.2d 608 (1982).
A real estate broker's license may be suspended or revoked for misconduct occurring in a real estate transaction whether the broker is acting for himself or for others. Wright v. State ex rel. State Real Estate Comm., 208 Neb. 467, 304 N.W.2d 39 (1981).
Licensed sales agent's violation of a commission regulation held an action demonstrating unworthiness justifying suspension. Haller v. State ex rel. State Real Estate Commission, 198 Neb. 437, 253 N.W.2d 280 (1977).
A real estate broker's actions clearly demonstrated unworthiness under this section. Clark v. Tyrrell, 16 Neb. App. 692, 750 N.W.2d 364 (2008).
2. Miscellaneous
Whether subdivision (13) of this section creates a private right of action against a real estate broker for inducement to breach a contract of sale or lease depends on its purpose and whether the Legislature intended to create such a private right of action. Professional Mgmt. Midwest v. Lund Co., 284 Neb. 777, 826 N.W.2d 225 (2012).
Whether subdivision (13) of this section includes an implied right of action against a real estate broker for inducement to breach a contract of sale or lease is distinct and separate from the issue whether this section creates a duty in tort which can be enforced via a negligence action. Professional Mgmt. Midwest v. Lund Co., 284 Neb. 777, 826 N.W.2d 225 (2012).
Subsection (28) of this section is not unconstitutionally vague. Weiner v. State ex rel. Real Estate Comm., 217 Neb. 372, 348 N.W.2d 879 (1984).
Statute declared to be unambiguous and requiring a salesperson to turn over to his broker any funds entrusted to that salesperson. Weiner v. State ex rel. Real Estate Comm., 214 Neb. 404, 333 N.W.2d 915 (1983).
Double jeopardy was not applicable to a real estate broker's discipline under this section. Clark v. Tyrrell, 16 Neb. App. 692, 750 N.W.2d 364 (2008).