2023 New Mexico Statutes › Chapter 61 - Professional and Occupational Licenses › Article 29 - Real Estate Brokers and Salesmen › Section 61-29-2 - Definitions and exceptions.

A. As used in Chapter 61, Article 29 NMSA 1978:
(1) "agency relationship" means the fiduciary relationship created solely by an express written agency agreement between a person and a brokerage, authorizing the brokerage to act as an agent for the person according to the scope of authority granted in that express written agreement for real estate services subject to the jurisdiction of the commission;
(2) "agent" means the brokerage authorized, solely by means of an express written agreement, to act as a fiduciary for a person and to provide real estate services that are subject to the jurisdiction of the commission; in the case of an associate broker, "agent" means the person who has been authorized to act by that associate broker's qualifying broker;
(3) "associate broker" means a person who, for compensation or other valuable consideration, is associated with or engaged under contract by a qualifying broker to carry on the qualifying broker's business as a whole or partial vocation, and:
(a) lists, sells or offers to sell real estate; buys or offers to buy real estate; or negotiates the purchase, sale or exchange of real estate or options on real estate;
(b) is engaged in managing property for others;
(c) leases, rents or auctions or offers to lease, rent or auction real estate;
(d) advertises or makes any representation as being engaged in the business of buying, selling, exchanging, renting, leasing, auctioning or dealing with options on real estate for others as a whole or partial vocation; or
(e) engages in the business of charging an advance fee or contracting for collection of a fee in connection with a contract under which the qualifying broker undertakes primarily to promote the sale of real estate through its listing in a publication issued primarily for that purpose or for the purpose of referral of information concerning real estate to other qualifying brokers or associate brokers;
(4) "auctioneer" means a person who auctions or offers to auction real property;
(5) "brokerage" means a licensed qualifying broker and the licensed real estate business represented by the qualifying broker and its affiliated licensees;
(6) "brokerage relationship" means the legal or contractual relationship between a person and a brokerage in a real estate transaction subject to the jurisdiction of the commission;
(7) "client" means a person who has entered into an express written agreement with a brokerage for real estate services subject to the jurisdiction of the commission;
(8) "commercial real estate" means real estate that is zoned:
(a) for business or commercial use by a city or county; or
(b) by a city or county to allow five or more multifamily units; provided that all units are located on a single parcel of land with a single legal description;
(9) "commission" means the New Mexico real estate commission;
(10) "customer" means a person who uses real estate services without entering into an express written agreement with a brokerage subject to the jurisdiction of the commission;
(11) "foreign broker" means a real estate broker who does not hold a real estate license issued by the commission, but who holds a current and valid real estate broker's license issued by another state in the United States, a province of Canada or any other sovereign nation;
(12) "license" means a qualifying broker's license or an associate broker's license issued by the commission;
(13) "licensee" means a person holding a valid qualifying broker's license or an associate broker's license subject to the jurisdiction of the commission;
(14) "nonresident licensee" means an associate or qualifying broker holding a real estate license issued by the commission and whose license application address is not within the state of New Mexico;
(15) "property management" means real estate services as specified by a management agreement that include marketing, showing, renting and leasing of real property; collection and disbursement of funds on behalf of the owner; supervision of employees and vendors; coordination of maintenance and repairs; management of tenant relations; and preparation of leases or rental agreements, financial reports and other documents. "Property management" does not mean inspections of property, repairs and maintenance incidental to the sale and marketing of property as authorized by the owner or the management of a condominium or homeowner association or advertising or taking reservations for vacation rental properties;
(16) "qualifying broker" means a licensed real estate broker who has qualified a proprietorship, corporation, partnership or association to do business as a real estate brokerage in the state of New Mexico, who discharges the responsibilities specific to a qualifying broker as defined by the commission and who for compensation or other consideration from another:
(a) lists, sells or offers to sell real estate; buys or offers to buy real estate; or negotiates the purchase, sale or exchange of real estate or options on real estate;
(b) is engaged in managing property for others;
(c) leases, rents or auctions or offers to lease, rent or auction real estate;
(d) advertises or makes any representation as being engaged in the business of buying, selling, exchanging, renting, leasing, auctioning or dealing with options on real estate for others as a whole or partial vocation; or
(e) engages in the business of charging an advance fee or contracting for collection of a fee in connection with a contract under which the qualifying broker undertakes primarily to promote the sale of real estate through its listing in a publication issued primarily for that purpose or for the purpose of referral of information concerning real estate to other qualifying brokers or associate brokers;
(17) "real estate" means land, improvements, leaseholds and other interests in real property that are less than a fee simple ownership interest, whether tangible or intangible; and
(18) "transaction broker" means a qualifying broker, associate broker or brokerage that provides real estate services without entering into an agency relationship.
B. A single act of a person in performing or attempting to perform an activity described in Paragraph (16) of Subsection A of this section makes the person a qualifying broker. A single act of a person in performing or attempting to perform an activity described in Paragraph (3) of Subsection A of this section makes the person an associate broker.
C. The provisions of Chapter 61, Article 29 NMSA 1978 do not apply to:
(1) a person who as owner performs any of the activities included in this section with reference to property owned by the person, except when the sale or offering for sale of the property constitutes a subdivision containing one hundred or more parcels;
(2) the employees of the owner or the employees of a qualifying broker acting on behalf of the owner, with respect to the property owned, if the acts are performed in the regular course of or incident to the management of the property and the investments;
(3) isolated or sporadic transactions not exceeding two transactions annually in which a person acts as attorney-in-fact under a duly executed power of attorney delivered by an owner authorizing the person to finally consummate and to perform under any contract the sale, leasing or exchange of real estate on behalf of the owner; and the owner or attorney-in-fact has not used a power of attorney for the purpose of evading the provisions of Chapter 61, Article 29 NMSA 1978;
(4) transactions in which a person acts as attorney-in-fact under a duly executed power of attorney delivered by an owner related to the attorney-in-fact within the fourth degree of consanguinity or closer, authorizing the person to finally consummate and to perform under any contract for the sale, leasing or exchange of real estate on behalf of the owner;
(5) the services rendered by an attorney at law in the performance of the attorney's duties as an attorney at law;
(6) a person acting in the capacity of a receiver, trustee in bankruptcy, administrator or executor, a person selling real estate pursuant to an order of any court or a trustee acting under a trust agreement, deed of trust or will or the regular salaried employee of a trustee;
(7) the activities of a salaried employee of a governmental agency acting within the scope of employment;
(8) persons who deal exclusively in mineral leases or the sale or purchase of mineral rights or royalties in any case in which the fee to the land or the surface rights are in no way involved in the transaction; or
(9) an auctioneer; provided that payments to an auctioneer for services rendered in connection with an auction shall be made to the auctioneer by a qualifying broker, and prior to performing an auction of real estate, the auctioneer shall enter into a transaction-specific written agreement with a qualifying broker that includes:
(a) a description of the parties, the real estate and any additional information necessary to identify the specific transaction governed by the agreement;
(b) the terms of compensation between the auctioneer and the qualifying broker;
(c) the effective date and definitive termination date of the agreement; and
(d) a statement that the auctioneer agrees to: 1) cooperate fully with the qualifying broker and all associate brokers designated by the qualifying broker; 2) conduct all contact with parties, including the general public and other brokers, in association with the qualifying broker or associate brokers designated by the qualifying broker; and 3) conduct all marketing and solicitations for business in the name of the qualifying broker.
History:
1978 Comp., § 61-29-2, enacted by Laws 1999, ch. 127, § 1; 2003, ch. 36, § 1; 2005, ch. 35, § 2; 2011, ch. 85, § 1; 2013, ch. 167, § 2; 2014, ch. 27, § 1; 2019, ch. 90, § 1; 2021, ch. 106, § 1.
ANNOTATIONS
The 2021 amendment,
effective July 1, 2021, defined "property management" as used in Chapter 61, Article 29 NMSA 1978; and in Subsection A, added new Paragraph A(15) and redesignated the succeeding paragraphs accordingly.
The 2019 amendment,
effective June 14, 2019, defined "auctioneer" as used in Chapter 61, Article 29 NMSA 1978, and exempted an auctioneer working under the control of a qualifying broker from the licensure requirements, and provided requirements for the agreement between the auctioneer and the qualifying broker; in Subsection A, added a new Paragraph A(4) and redesignated former Paragraphs A(4) through A(16) as Paragraphs A(5) through A(17), respectively; in Subsection B, after the first occurrence of "Paragraph", deleted "(14)" and added "(15)"; and in Subsection C, added Paragraph C(9).
The 2014 amendment,
effective May 21, 2014, added definitions of "commercial real estate", "foreign broker", and "nonresident licensee" to provide for foreign brokers acting as qualifying or associate brokers with respect to commercial real estate; and in Subsection A, added Paragraphs (7), (10) and (13).
The 2013 amendment,
effective June 14, 2013, changed the definition of "associate broker" and added the definition of "qualifying broker"; in Paragraph (3) of Subsection A, in the introductory sentence, after "qualifying broker", deleted "to participate in an activity described in Paragraph (4) of this subsection or"; added Subparagraphs (a) through (e) of Paragraph (3) of Subsection A; deleted former Paragraph (4) of Subsection A, which defined "broker" and "qualifying broker"; in Paragraph (6) of Subsection A, after "means a", deleted "buyer, seller, landlord or tenant" and added "person"; in Paragraph (8) of Subsection A, after "means a", deleted "buyer, seller, landlord or tenant" and added "person"; added Paragraph (11) of Subsection A; deleted former Paragraph (13) of Subsection A, which defined "real estate salesperson"; and in Paragraph (2) of Subsection C, after "property and the investments", deleted "except when the sale or offering for sale of the property constitutes a subdivision containing one hundred or more parcels".
The 2011 amendment,
effective July 1 2011, in Subsection A, included property managers in the definition of "broker"; and in Subsection C, provided that Chapter 61, Article 29 NMSA 1978 applies when a sale constitutes a subdivision of property containing one hundred or more parcels.
The 2005 amendment,
effective January 1, 2006, redefines "agency relationship" to mean the fiduciary relationship created solely by a written agreement between a person and a brokerage; defines "agent" to mean the brokerage authorized solely by a written agreement; defines "associate broker" to mean a person who is associated with or engaged under contract by a qualifying broker; defines "brokerage relationship" as the legal or contractual relationship between a person and a brokerage in a real estate transaction; redefines "licensee" to mean a person holding a qualifying broker's or associate broker's license; and defines "transaction broker" to mean a qualifying broker, associate broker or brokerage that provides real estate services without entering into an agency relationship.
The 2003 amendment,
effective January 1, 2004, substituted "contractual" for "contractural" following "means the legal or" near the middle of Paragraph A(1); deleted "created pursuant to Section 61-29-4 NMSA 1978" at the end of Paragraph A(5); inserted "or a real estate salesperson's license" following "real estate broker's license" in the middle of Paragraph A(7); substituted "a person" for "anyone" following "licensee means" near the beginning of Paragraph A(8); deleted Paragraph A(9) and redesignated the subsequent paragraphs accordingly; and substituted "(10)" for "(11)" following "Paragraph" near the end of Subsection B.
Texas broker was acting as a broker in New Mexico.
— Where plaintiff, who was a licensed real estate broker in Texas, agreed to buy a ranch in New Mexico and the owners agreed to pay plaintiff a six percent commission; defendants, who were licensed brokers in New Mexico, assisted plaintiff conduct due diligence in connection with the purchase of the ranch; plaintiff and defendants subsequently agreed that if defendants found a third-party purchaser of the ranch, that plaintiff would not buy the ranch and plaintiff and defendants would share the sales commission; defendants told plaintiff about a possible buyer of the ranch and plaintiff directed defendants to contact the owner of the ranch about the prospective buyer; the ranch was not listed for sale; and the only way defendants knew the ranch was for sale was through their contact with plaintiff, plaintiff was a broker within the meaning of Section 61-29-2 NMSA 1978 because plaintiff was a finder or middleman who brought the ranch owner and the buyer together with the assistance of defendants.
PC Carter Co. v. Miller
, 2011-NMCA-052, 149 N.M. 660, 253 P.3d 950.
Broker buying or selling property for himself.
— The commission lacks jurisdiction over a real estate broker who is buying or selling property for himself, unless he holds himself out as a broker.
Vihstadt v. Real Estate Comm'n
, 1988-NMSC-003, 106 N.M. 641, 748 P.2d 14.
Burden on broker when acting for himself.
— A licensed broker has the burden of showing that there is no possibility of misunderstanding or confusion as to his status when he purports to act for himself.
Poorbaugh v. N.M. Real Estate Comm'n
, 1978-NMSC-033, 91 N.M. 622, 578 P.2d 323.
Hiring of note broker for sale of real estate contract.
— Because the seller of a real estate contract, who hired a note broker to handle the sale, was not acting as a real estate broker during the sale, the commission lacked jurisdiction to revoke the seller's license for misrepresentation.
Vihstadt v. Real Estate Comm'n
, 1988-NMSC-003, 106 N.M. 641, 748 P.2d 14.
Whether landowner made representation as to being real estate broker is factual determination
to be made by the trier of fact.
Poorbaugh v. N.M. Real Estate Comm'n
, 1978-NMSC-033, 91 N.M. 622, 578 P.2d 323.
Fiduciary duties of salesperson extended to broker.
— Because a real estate salesperson must work under a broker, when a principal buyer or seller engages a real estate salesperson as an agent, the principal also engages the salesperson's qualifying broker as an agent, thus extending the fiduciary duty owed to the principal buyer or seller up the salesperson's chain of command to the broker. Although agency fiduciary obligations and liabilities may extend from a salesperson to the qualifying broker, the fiduciary duties of one real estate salesperson are not attributable to another salesperson operating under the same qualifying broker unless one salesperson is at fault in appointing, supervising or cooperating with the other.
Moser v. Bertram
, 1993-NMSC-040, 115 N.M. 766, 858 P.2d 854.
Broker status not changed by power of attorney.
— Where a real estate broker entered into a real estate transaction as a broker, he was not exempt from the jurisdiction of the commission under the "attorney in fact" exception in Subsection D (now C(4)), even though he was given the power of attorney to enable him to complete the transaction without the owners being present.
Elliott v. N.M. Real Estate Comm'n
, 1985-NMSC-078, 103 N.M. 273, 705 P.2d 679.
Activities not excepted.
— Activities did not fall within exception provided for in Subsection D (now C).
Bosque Farms Home Ctr., Inc. v. Tabet Lumber Co.
, 1988-NMSC-027, 107 N.M. 115, 753 P.2d 894.
No license required for arranging investments.
— Arranging investments in real estate contracts is not a transaction for which a real estate broker's or salesperson's license is required.
Garcia v. N.M. Real Estate Comm'n
, 1989-NMCA-034, 108 N.M. 591, 775 P.2d 1308, cert. denied, 108 N.M. 624, 776 P.2d 846.
A person who auctions the real estate of another person for compensation is acting as an associate or qualifying broker.
— The Real Estate Brokers and Salesmen Act (act), 61-29-1 to 61-29-29 NMSA 1978, specifically lists auctioning or the offer to auction real estate, when performed for another and for compensation, as conduct that brings one within in the definition of associate broker and qualifying broker, and therefore a person who auctions or offers for auction the real estate of another person for compensation is acting as an associate or qualifying broker under the act and must possess a broker's license issued by the New Mexico real estate commission, regardless of whether the auctioneer is hired by the seller or by a licensed broker.
Necessity of a Real Estate Broker's License to Auction Real Estate
(5/24/16), Att'y Gen. Adv. Ltr. 2016-05.
Rule governing advertisements applies to advertisements of real estate auctions.
— The New Mexico real estate commission has adopted a rule governing real estate advertising that requires all real estate advertising be a true and factual representation of the property and real estate services being advertised, and because auctioning or offering for auction the real estate of another for compensation is a real estate service that requires a broker's license, it follows that advertisements regarding the sale of real estate by auction comes under this rule.
Necessity of a Real Estate Broker's License to Auction Real Estate
(5/24/16), Att'y Gen. Adv. Ltr. 2016-05.
Broker to supervise salespeople.
— This section and Section 61-29-11 NMSA 1978 express a clear legislative mandate that brokers, as the persons principally responsible to the public, actually be in a position to supervise the actions of their salespeople. At the same time, the statutes do not require the broker himself to engage in business full-time. 1980 Op. Att'y Gen. No. 80-22.
The exemption contained in Subsection D (now C(4)) applies only
to those persons holding the power of attorney and who are not engaged in business as real estate brokers. 1965 Op. Att'y Gen. No. 65-122.
Law reviews.
— For article, "Attachment in New Mexico - Part I," see 1 Nat. Res. J. 303 (1961).
For 1984-88 survey of New Mexico administrative law, 19 N.M.L. Rev. 575 (1990).
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 12 Am. Jur. 2d Brokers § 1.
Who is real estate broker within meaning of statute, 167 A.L.R. 774.
Effect of statement of real estate broker to prospective purchaser that property may be bought for less than list price as breach of duty to vendor, 17 A.L.R.2d 904.
Duty of real estate broker to disclose that prospective purchaser is a relative, 26 A.L.R.2d 1307.
Payment to broker authorized to sell real property as payment to principal, 30 A.L.R.2d 805.
Power of real estate broker to execute contract of sale in behalf of principal, 43 A.L.R.2d 1014.
Liability of vendor's real-estate broker or agent to purchaser or prospect for misrepresenting or concealing offer or acceptance, 55 A.L.R.2d 342.
Power of real estate broker to bind principal by representations as to character, condition, location, quantity or title of property, 58 A.L.R.2d 10.
Liability of real estate broker for accepting note, check or property, rather than cash, as earnest money, 59 A.L.R.2d 1455.
Misrepresentation as basis of real estate broker's liability for damages or losses sustained by vendor responsible to vendee on account thereof, 61 A.L.R.2d 1237.
Modern view as to right of real estate broker to recover commission from seller-principal where buyer defaults under valid contract of sale, 12 A.L.R.4th 1083.
Right of attorney, as such, to act or become licensed to act as real estate broker, 23 A.L.R.4th 230.
Real-estate broker's liability to purchaser for misrepresentation or nondisclosure of physical defects in property sold, 46 A.L.R.4th 546.
12 C.J.S. Brokers § 2.