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Public Act 91-0245
HB0902 Enrolled LRB9104235LDmbA
AN ACT concerning real estate, amending named Acts.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
ARTICLE 1. GENERAL PROVISIONS
Section 1-1. Short title; Act supersedes Real Estate
License Act of 1983. This Act shall be known and may be cited
as the Real Estate License Act of 2000, and it shall
supersede the Real Estate License Act of 1983 repealed by
this Act.
Section 1-5. Legislative intent. The intent of the
General Assembly in enacting this statute is to evaluate the
competency of persons engaged in the real estate business and
to regulate this business for the protection of the public.
Section 1-10. Definitions. In this Act, unless the
context otherwise requires:
"Act" means the Real Estate License Act of 2000.
"Advisory Council" means the Real Estate Education
Advisory Council created under Section 30-10 of this Act.
"Agency" means a relationship in which a real estate
broker or licensee, whether directly or through an affiliated
licensee, represents a consumer by the consumer's consent,
whether express or implied, in a real property transaction.
"Applicant" means any person, as defined in this Section,
who applies to OBRE for a valid license as a real estate
broker, real estate salesperson, or leasing agent.
"Blind advertisement" means any real estate advertisement
that does not include the sponsoring broker's business name
and that is used by any licensee regarding the sale or lease
of real estate, including his or her own, licensed
activities, or the hiring of any licensee under this Act.
The broker's business name in the case of a franchise shall
include the franchise affiliation as well as the name of the
individual firm.
"Board" means the Real Estate Administration and
Disciplinary Board of OBRE.
"Branch office" means a sponsoring broker's office other
than the sponsoring broker's principal office.
"Broker" means an individual, partnership, limited
liability company, corporation, or registered limited
liability partnership other than a real estate salesperson or
leasing agent who for another and for compensation either
directly or indirectly:
(1) Sells, exchanges, purchases, rents, or leases
real estate.
(2) Offers to sell, exchange, purchase, rent, or
lease real estate.
(3) Negotiates, offers, attempts, or agrees to
negotiate the sale, exchange, purchase, rental, or
leasing of real estate.
(4) Lists, offers, attempts, or agrees to list real
estate for sale, lease, or exchange.
(5) Buys, sells, offers to buy or sell, or
otherwise deals in options on real estate or improvements
thereon.
(6) Supervises the collection, offer, attempt, or
agreement to collect rent for the use of real estate.
(7) Advertises or represents himself or herself as
being engaged in the business of buying, selling,
exchanging, renting, or leasing real estate.
(8) Assists or directs in procuring or referring of
prospects, intended to result in the sale, exchange,
lease, or rental of real estate.
(9) Assists or directs in the negotiation of any
transaction intended to result in the sale, exchange,
lease, or rental of real estate.
(10) Opens real estate to the public for marketing
purposes.
"Brokerage agreement" means a written or oral agreement
between a sponsoring broker and a consumer for licensed
activities to be provided to a consumer in return for
compensation or the right to receive compensation from
another. Brokerage agreements may constitute either a
bilateral or a unilateral agreement between the broker and
the broker's client depending upon the content of the
brokerage agreement. All exclusive brokerage agreements shall
be in writing.
"Client" means a person who is being represented by a
licensee.
"Commissioner" means the Commissioner of Banks and Real
Estate or a person authorized by the Commissioner, the Office
of Banks and Real Estate Act, or this Act to act in the
Commissioner's stead.
"Compensation" means the valuable consideration given by
one person or entity to another person or entity in exchange
for the performance of some activity or service.
Compensation shall include the transfer of valuable
consideration, including without limitation the following:
(1) commissions;
(2) referral fees;
(3) bonuses;
(4) prizes;
(5) merchandise;
(6) finder fees;
(7) performance of services;
(8) coupons or gift certificates;
(9) discounts;
(10) rebates;
(11) a chance to win a raffle, drawing, lottery, or
similar game of chance not prohibited by any other law or
statute;
(12) retainer fee; or
(13) salary.
"Confidential information" means information obtained by
a licensee from a client during the term of a brokerage
agreement that (i) was made confidential by the written
request or written instruction of the client, (ii) deals with
the negotiating position of the client, or (iii) is
information the disclosure of which could materially harm the
negotiating position of the client, unless at any time:
(1) the client permits the disclosure of
information given by that client by word or conduct;
(2) the disclosure is required by law; or
(3) the information becomes public from a source
other than the licensee.
"Confidential information" shall not be considered to
include material information about the physical condition of
the property.
"Consumer" means a person or entity seeking or receiving
licensed activities.
"Continuing education school" means any person licensed
by OBRE as a school for continuing education in accordance
with Section 30-15 of this Act.
"Credit hour" means 50 minutes of classroom instruction
in course work that meets the requirements set forth in rules
adopted by OBRE.
"Customer" means a consumer who is not being represented
by the licensee but for whom the licensee is performing
ministerial acts.
"Designated agency" means a contractual relationship
between a sponsoring broker and a client under Section 15-50
of this Act in which one or more licensees associated with or
employed by the broker are designated as agent of the client.
"Designated agent" means a sponsored licensee named by a
sponsoring broker as the legal agent of a client, as provided
for in Section 15-50 of this Act.
"Director" means the Director of the Real Estate
Division, OBRE.
"Dual agency" means an agency relationship in which a
licensee is representing both buyer and seller or both
landlord and tenant in the same transaction. When the agency
relationship is a designated agency, the question of whether
there is a dual agency shall be determined by the agency
relationships of the designated agent of the parties and not
of the sponsoring broker.
"Employee" or other derivative of the word "employee",
when used to refer to, describe, or delineate the
relationship between a real estate broker and a real estate
salesperson, another real estate broker, or a leasing agent,
shall be construed to include an independent contractor
relationship, provided that a written agreement exists that
clearly establishes and states the relationship. All
responsibilities of a broker shall remain.
"Escrow moneys" means all moneys, promissory notes or any
other type or manner of legal tender or financial
consideration deposited with any person for the benefit of
the parties to the transaction. A transaction exists once an
agreement has been reached and an accepted real estate
contract signed or lease agreed to by the parties. Escrow
moneys includes without limitation earnest moneys and
security deposits, except those security deposits in which
the person holding the security deposit is also the sole
owner of the property being leased and for which the security
deposit is being held.
"Inoperative" means a status of licensure where the
licensee holds a current license under this Act, but the
licensee is prohibited from engaging in licensed activities
because the licensee is unsponsored or the license of the
sponsoring broker with whom the licensee is associated or by
whom he or she is employed is currently expired, revoked,
suspended, or otherwise rendered invalid under this Act.
"Leasing Agent" means a person who is employed by a real
estate broker to engage in licensed activities limited to
leasing residential real estate who has obtained a license as
provided for in Section 5-5 of this Act.
"License" means the document issued by OBRE certifying
that the person named thereon has fulfilled all requirements
prerequisite to licensure under this Act.
"Licensed activities" means those activities listed in
the definition of "broker" under this Section.
"Licensee" means any person, as defined in this Section,
who holds a valid unexpired license as a real estate broker,
real estate salesperson, or leasing agent.
"Listing presentation" means a communication between a
real estate broker or salesperson and a consumer in which the
licensee is attempting to secure a brokerage agreement with
the consumer to market the consumer's real estate for sale or
lease.
"Managing broker" means a broker who has supervisory
responsibilities for licensees in one or, in the case of a
multi-office company, more than one office and who has been
appointed as such by the sponsoring broker of the real estate
firm.
"Medium of advertising" means any method of communication
intended to influence the general public to use or purchase a
particular good or service or real estate.
"Ministerial acts" means those acts that a licensee may
perform for a consumer that are informative or clerical in
nature and do not rise to the level of active representation
on behalf of a consumer. Examples of these acts include
without limitation (i) responding to phone inquiries by
consumers as to the availability and pricing of brokerage
services, (ii) responding to phone inquiries from a consumer
concerning the price or location of property, (iii) attending
an open house and responding to questions about the property
from a consumer, (iv) setting an appointment to view
property, (v) responding to questions of consumers walking
into a licensee's office concerning brokerage services
offered or particular properties, (vi) accompanying an
appraiser, inspector, contractor, or similar third party on a
visit to a property, (vii) describing a property or the
property's condition in response to a consumer's inquiry,
(viii) completing business or factual information for a
consumer on an offer or contract to purchase on behalf of a
client, (ix) showing a client through a property being sold
by an owner on his or her own behalf, or (x) referral to
another broker or service provider.
"OBRE" means the Office of Banks and Real Estate.
"Office" means a real estate broker's place of business
where the general public is invited to transact business and
where records may be maintained and licenses displayed,
whether or not it is the broker's principal place of
business.
"Person" means and includes individuals, entities,
corporations, limited liability companies, registered limited
liability partnerships, and partnerships, foreign or
domestic, except that when the context otherwise requires,
the term may refer to a single individual or other described
entity.
"Personal assistant" means a licensed or unlicensed
person who has been hired for the purpose of aiding or
assisting a sponsored licensee in the performance of the
sponsored licensee's job.
"Pocket card" means the card issued by OBRE to signify
that the person named on the card is currently licensed under
this Act.
"Pre-license school" means a school licensed by OBRE
offering courses in subjects related to real estate
transactions, including the subjects upon which an applicant
is examined in determining fitness to receive a license.
"Pre-renewal period" means the period between the date of
issue of a currently valid license and the license's
expiration date.
"Real estate" means and includes leaseholds as well as
any other interest or estate in land, whether corporeal,
incorporeal, freehold, or non-freehold and whether the real
estate is situated in this State or elsewhere.
"Real Estate Administration and Disciplinary Board" or
"Board" means the Real Estate Administration and Disciplinary
Board created by Section 25-10 of this Act.
"Salesperson" means any individual, other than a real
estate broker or leasing agent, who is employed by a real
estate broker or is associated by written agreement with a
real estate broker as an independent contractor and
participates in any activity described in the definition of
"broker" under this Section.
"Sponsoring broker" means the broker who has issued a
sponsor card to a licensed salesperson, another licensed
broker, or a leasing agent.
"Sponsor card" means the temporary permit issued by the
sponsoring real estate broker certifying that the real estate
broker, real estate salesperson, or leasing agent named
thereon is employed by or associated by written agreement
with the sponsoring real estate broker, as provided for in
Section 5-40 of this Act.
ARTICLE 5. LICENSING AND EDUCATION
Section 5-5. Leasing agent license.
(a) The purpose of this Section is to provide for a
limited scope license to enable persons who wish to engage in
activities limited to the leasing of residential real
property for which a license is required under this Act, and
only those activities, to do so by obtaining the license
provided for under this Section.
(b) Notwithstanding the other provisions of this Act,
there is hereby created a leasing agent license that shall
enable the licensee to engage only in residential leasing
activities for which a license is required under this Act.
Such activities include without limitation leasing or renting
residential real property, or attempting, offering, or
negotiating to lease or rent residential real property, or
supervising the collection, offer, attempt, or agreement to
collect rent for the use of residential real property.
Nothing in this Section shall be construed to require a
licensed real estate broker or salesperson to obtain a
leasing agent license in order to perform leasing activities
for which a license is required under this Act. Licensed
leasing agents must be sponsored and employed by a sponsoring
broker.
(c) OBRE, by rule, with the advice of the Board, shall
provide for the licensing of leasing agents, including the
issuance, renewal, and administration of licenses.
(d) Notwithstanding any other provisions of this Act to
the contrary, a person may engage in residential leasing
activities for which a license is required under this Act,
for a period of 120 consecutive days without being licensed,
so long as the person is acting under the supervision of a
licensed real estate broker and the broker has notified OBRE
that the person is pursuing licensure under this Section.
During the 120 day period all requirements of Sections 5-10
and 5-65 of this Act with respect to education, successful
completion of an examination, and the payment of all required
fees must be satisfied. OBRE may adopt rules to ensure that
the provisions of this subsection are not used in a manner
that enables an unlicensed person to repeatedly or
continually engage in activities for which a license is
required under this Act.
Section 5-10. Application for leasing agent license.
Every person who desires to obtain a leasing agent license
shall apply to OBRE in writing on forms provided by OBRE. In
addition to any other information required to be contained in
the application, every application for an original or renewed
leasing agent license shall include the applicant's Social
Security number. All application or license fees must
accompany the application. Each applicant must be at least
18 years of age, must be of good moral character, shall have
successfully completed a 4-year course of study in a high
school or secondary school or an equivalent course of study
approved by the Illinois State Board of Education, and shall
successfully complete a written examination authorized by
OBRE sufficient to demonstrate the applicant's knowledge of
the provisions of this Act relating to leasing agents and the
applicant's competence to engage in the activities of a
licensed leasing agent. Applicants must successfully
complete 15 hours of instruction in an approved course of
study relating to the leasing of residential real property.
The course of study shall, among other topics, cover the
provisions of this Act applicable to leasing agents; fair
housing issues relating to residential leasing; advertising
and marketing issues; leases, applications, and credit
reports; owner-tenant relationships and owner-tenant laws;
the handling of funds; and environmental issues relating to
residential real property. Successfully completed course
work, completed pursuant to the requirements of this Section,
may be applied to the course work requirements to obtain a
real estate broker's or salesperson's license as provided by
rule. The Advisory Council shall recommend through the Board
to OBRE and OBRE shall adopt requirements for approved
courses, course content, and the approval of courses,
instructors, and schools, as well as school and instructor
fees. OBRE may establish continuing education requirements
for licensed leasing agents, by rule, with the advice of the
Advisory Council and Board.
Section 5-15. Necessity of broker, salesperson, or
leasing agent license or sponsor card; ownership
restrictions.
(a) It is unlawful for any person, corporation, limited
liability company, registered limited liability partnership,
or partnership to act as a real estate broker, real estate
salesperson, or leasing agent or to advertise or assume to
act as such broker, salesperson, or leasing agent without a
properly issued sponsor card or a license issued under this
Act by OBRE, either directly or through its authorized
designee.
(b) No corporation shall be granted a license or engage
in the business or capacity, either directly or indirectly,
of a real estate broker, unless every officer of the
corporation who actively participates in the real estate
activities of the corporation holds a license as a real
estate broker and unless every employee who acts as a
salesperson, or leasing agent for the corporation holds a
license as a real estate broker, salesperson, or leasing
agent.
(c) No partnership shall be granted a license or engage
in the business or serve in the capacity, either directly or
indirectly, of a real estate broker, unless every general
partner in the partnership holds a license as a real estate
broker and unless every employee who acts as a salesperson or
leasing agent for the partnership holds a license as a real
estate broker, salesperson, or leasing agent. In the case of
a registered limited liability partnership (LLP), every
partner in the LLP must hold a license as a real estate
broker and every employee who acts as a salesperson or
leasing agent must hold a license as a real estate broker,
salesperson, or leasing agent.
(d) No limited liability company shall be granted a
license or engage in the business or serve in the capacity,
either directly or indirectly, of a real estate broker unless
every manager in the limited liability company holds a
license as a real estate broker and unless every member and
employee who acts as a salesperson or leasing agent for the
limited liability company holds a license as a real estate
broker, salesperson, or leasing agent.
(e) No partnership, limited liability company, or
corporation shall be licensed to conduct a brokerage business
where an individual salesperson or leasing agent, or group of
salespersons or leasing agents, owns or directly or
indirectly controls more than 49% of the shares of stock or
other ownership in the partnership, limited liability
company, or corporation.
Section 5-20. Exemptions from broker, salesperson, or
leasing agent license requirement. The requirement for
holding a license under this Article 5 shall not apply to:
(1) Any person, partnership, or corporation that as
owner or lessor performs any of the acts described in the
definition of "broker" under Section 1-10 of this Act with
reference to property owned or leased by it, or to the
regular employees thereof with respect to the property so
owned or leased, where such acts are performed in the regular
course of or as an incident to the management, sale, or other
disposition of such property and the investment therein,
provided that such regular employees do not perform any of
the acts described in the definition of "broker" under
Section 1-10 of this Act in connection with a vocation of
selling or leasing any real estate or the improvements
thereon not so owned or leased.
(2) An attorney in fact acting under a duly executed and
recorded power of attorney to convey real estate from the
owner or lessor or the services rendered by an attorney at
law in the performance of the attorney's duty as an attorney
at law.
(3) Any person acting as receiver, trustee in
bankruptcy, administrator, executor, or guardian or while
acting under a court order or under the authority of a will
or testamentary trust.
(4) Any person acting as a resident manager for the
owner or any employee acting as the resident manager for a
broker managing an apartment building, duplex, or apartment
complex, when the resident manager resides on the premises,
the premises is his or her primary residence, and the
resident manager is engaged in the leasing of the property of
which he or she is the resident manager.
(5) Any officer or employee of a federal agency in the
conduct of official duties.
(6) Any officer or employee of the State government or
any political subdivision thereof performing official duties.
(7) Any multiple listing service or other information
exchange that is engaged in the collection and dissemination
of information concerning real estate available for sale,
purchase, lease, or exchange along with which no other
licensed activities are provided.
(8) Railroads and other public utilities regulated by
the State of Illinois, or the officers or full time employees
thereof, unless the performance of any licensed activities is
in connection with the sale, purchase, lease, or other
disposition of real estate or investment therein not needing
the approval of the appropriate State regulatory authority.
(9) Any medium of advertising in the routine course of
selling or publishing advertising along with which no other
licensed activities are provided.
(10) Any resident lessee of a residential dwelling unit
who refers for compensation to the owner of the dwelling
unit, or to the owner's agent, prospective lessees of
dwelling units in the same building or complex as the
resident lessee's unit, but only if the resident lessee (i)
refers no more than 3 prospective lessees in any 12-month
period, (ii) receives compensation of no more than $1,000 or
the equivalent of one month's rent, whichever is less, in any
12-month period, and (iii) limits his or her activities to
referring prospective lessees to the owner, or the owner's
agent, and does not show a residential dwelling unit to a
prospective lessee, discuss terms or conditions of leasing a
dwelling unit with a prospective lessee, or otherwise
participate in the negotiation of the leasing of a dwelling
unit.
Section 5-25. Application for and issuance of broker or
salesperson license.
(a) Every person who desires to obtain a license shall
make application to OBRE in writing upon forms prepared and
furnished by OBRE. In addition to any other information
required to be contained in the application, every
application for an original or renewed license shall include
the applicant's Social Security number. Each applicant shall
be at least 21 years of age, be of good moral character, and
have successfully completed a 4-year course of study in a
high school or secondary school approved by the Illinois
State Board of Education or an equivalent course of study as
determined by an examination conducted by the Illinois State
Board of Education and shall be verified under oath by the
applicant. The minimum age of 21 years shall be waived for
any person seeking a license as a real estate salesperson who
has attained the age of 18 and can provide evidence of the
successful completion of at least 4 semesters of
post-secondary school study as a full-time student or the
equivalent, with major emphasis on real estate courses, in a
school approved by OBRE.
(b) When an applicant has had his or her license revoked
on a prior occasion or when an applicant is found to have
committed any of the practices enumerated in Section 20-20 of
this Act or when an applicant has been convicted of forgery,
embezzlement, obtaining money under false pretenses, larceny,
extortion, conspiracy to defraud, or any other similar
offense or offenses or has been convicted of a felony
involving moral turpitude in any court of competent
jurisdiction in this or any other state, district, or
territory of the United States or of a foreign country, the
Board may consider the prior revocation, conduct, or
conviction in its determination of the applicant's moral
character and whether to grant the applicant a license. In
its consideration of the prior revocation, conduct, or
conviction, the Board shall take into account the nature of
the conduct, any aggravating or extenuating circumstances,
the time elapsed since the revocation, conduct, or
conviction, the rehabilitation or restitution performed by
the applicant, and any other factors that the Board deems
relevant. When an applicant has made a false statement of
material fact on his or her application, the false statement
may in itself be sufficient grounds to revoke or refuse to
issue a license.
(c) Every valid application for issuance of an initial
license shall be accompanied by a sponsor card and the fees
specified by rule.
(d) No applicant shall engage in any of the activities
covered by this Act until a valid sponsor card has been
issued to such applicant. The sponsor card shall be valid
for a maximum period of 45 days from the date of issuance
unless extended for good cause as provided by rule.
(e) OBRE shall issue to each applicant entitled thereto
a license in such form and size as shall be prescribed by
OBRE. The procedure for terminating a license shall be
printed on the reverse side of the license. Each license
shall bear the name of the person so qualified, shall specify
whether the person is qualified to act in a broker or
salesperson capacity, and shall contain such other
information as shall be recommended by the Board and approved
by OBRE. Each person licensed under this Act shall display
his or her license conspicuously in his or her place of
business.
Section 5-30. Education requirements to obtain an
original broker or salesperson license.
(a) All applicants for a broker's license, except
applicants who meet the criteria set forth in subsection (c)
of this Section shall (i) give satisfactory evidence of
having completed at least 120 classroom hours, 45 of which
shall be those hours required to obtain a salesperson's
license plus 15 hours in brokerage administration courses, in
real estate courses approved by the Advisory Council or (ii)
for applicants who currently hold a valid real estate
salesperson's license, give satisfactory evidence of having
completed at least 75 hours in real estate courses, not
including the courses that are required to obtain a
salesperson's license, approved by the Advisory Council.
(b) All applicants for a salesperson's license, except
applicants who meet the criteria set forth in subsection (c)
of this Section shall give satisfactory evidence that they
have completed at least 45 hours of instruction in real
estate courses approved by the Advisory Council.
(c) The requirements specified in subsections (a) and
(b) of this Section do not apply to applicants who:
(1) are currently admitted to practice law by the
Supreme Court of Illinois and are currently in active
standing; or
(2) show evidence of receiving a baccalaureate
degree including courses involving real estate or related
material from a college or university approved by the
Advisory Council.
(d) A minimum of 15 of the required hours of pre-license
education shall be in the areas of Article 15 of this Act,
disclosure and environmental issues, or any other currently
topical areas that are determined by the Advisory Council.
Section 5-35. Examination; broker or salesperson.
(a) Every person who makes application for an original
license as a broker or salesperson shall personally take and
pass a written examination authorized by OBRE and answer any
questions that may be required to determine the good moral
character of the applicant and the applicant's competency to
transact the business of broker or salesperson, as the case
may be, in such a manner as to safeguard the interests of the
public. In determining this competency, OBRE shall require
proof that the applicant has a good understanding and the
knowledge to conduct real estate brokerage and of the
provisions of this Act. The examination shall be prepared by
an independent testing service designated by OBRE, subject to
the approval of the examinations by the Board. The
designated independent testing service shall conduct the
examinations at such times and places as OBRE shall approve.
In addition, every person who desires to take the written
examination shall make application to do so to OBRE or to the
designated independent testing service in writing upon forms
approved by OBRE. An applicant shall be eligible to take the
examination only after successfully completing the education
requirements, set forth in Section 5-30 of this Act, and
attaining the minimum age specified in this Act. Each
applicant shall be required to establish compliance with the
eligibility requirements in the manner provided by the rules
promulgated for the administration of this Act.
(b) If a person who has received a passing score on the
written examination described in this Section fails to file
an application and meet all requirements for a license under
this Act within one year after receiving a passing score on
the examination, credit for the examination shall terminate.
The person thereafter may make a new application for
examination.
(c) If an applicant has failed an examination 3 times,
the applicant must repeat the pre-license education required
to sit for the examination. For the purposes of this
Section, the fourth attempt shall be the same as the first.
Approved education, as prescribed by this Act for licensure
as a salesperson or broker, shall be valid for 3 years after
the date of satisfactory completion of the education.
Section 5-40. Sponsor card; termination indicated by
license endorsement; association with new broker.
(a) The sponsoring broker shall prepare upon forms
provided by OBRE and deliver to each licensee employed by or
associated with the sponsoring broker a sponsor card
certifying that the person whose name appears thereon is in
fact employed by or associated with the sponsoring broker.
The sponsoring broker shall send, by certified mail, return
receipt requested, or other delivery service requiring a
signature upon delivery, a duplicate of each sponsor card,
along with a valid license or other authorization as provided
by rule and the appropriate fee, to OBRE within 24 hours of
issuance of the sponsor card. It is a violation of this Act
for any broker to issue a sponsor card to any licensee or
applicant unless the licensee or applicant presents in hand a
valid license or other authorization as provided by rule.
(b) When a licensee terminates his or her employment or
association with a sponsoring broker or the employment is
terminated by the sponsoring broker, the licensee shall
obtain from the sponsoring broker his or her license endorsed
by the sponsoring broker indicating the termination. The
sponsoring broker shall surrender to OBRE a copy of the
license of the licensee within 2 days of the termination or
shall notify OBRE in writing of the termination and explain
why a copy of the license is not surrendered. Failure of the
sponsoring broker to surrender the license shall subject the
sponsoring broker to discipline under Section 20-20 of this
Act. The license of any licensee whose association with a
sponsoring broker is terminated shall automatically become
inoperative immediately upon the termination unless the
licensee accepts employment or becomes associated with a new
sponsoring broker pursuant to subsection (c) of this Section.
(c) When a licensee accepts employment or association
with a new sponsoring broker, the new sponsoring broker shall
send, by certified mail, return receipt requested, or other
delivery service requiring a signature upon delivery, to OBRE
a duplicate sponsor card, along with the licensee's endorsed
license or an affidavit of the licensee of why the endorsed
license is not surrendered, and shall pay the appropriate fee
prescribed by rule to cover administrative expenses attendant
to the changes in the registration of the licensee.
Section 5-45. Offices.
(a) If a sponsoring broker maintains more than one
office within the State, the sponsoring broker shall apply
for a branch office license for each office other than the
sponsoring broker's principal place of business. The branch
office license shall be displayed conspicuously in each
branch office. The name of each branch office shall be the
same as that of the sponsoring broker's principal office or
shall clearly delineate the branch office's relationship with
the principal office.
(b) The sponsoring broker shall name a managing broker
for each branch office and the sponsoring broker shall be
responsible for supervising all managing brokers. The
sponsoring broker shall notify OBRE in writing of the name of
all managing brokers of the sponsoring broker. Any changes
in managing brokers shall be reported to OBRE in writing
within 15 days of the change. Failure to do so shall subject
the sponsoring broker to discipline under Section 20-20 of
this Act.
(c) The sponsoring broker shall immediately notify OBRE
in writing of any opening, closing, or change in location of
any principal or branch office.
(d) Except as provided in this Section, each sponsoring
broker shall maintain a definite office, or place of business
within this State for the transaction of real estate
business, shall conspicuously display an identification sign
on the outside of his or her office of adequate size and
visibility, and shall conspicuously display his or her
license in his or her office or place of business and also
the licenses of all persons associated with or employed by
the sponsoring broker who primarily work at that location.
The office or place of business shall not be located in any
retail or financial business establishment unless it is
separated from the other business by a separate and distinct
area within the establishment. A broker who is licensed in
this State by examination or pursuant to the provisions of
Section 5-60 of this Act shall not be required to maintain a
definite office or place of business in this State provided
all of the following conditions are met:
(1) the broker maintains an active broker's license
in the broker's state of domicile;
(2) the broker maintains an office in the broker's
state of domicile; and
(3) the broker has filed with OBRE written
statements appointing the Commissioner to act as the
broker's agent upon whom all judicial and other process
or legal notices directed to the licensee may be served
and agreeing to abide by all of the provisions of this
Act with respect to his or her real estate activities
within the State of Illinois and submitting to the
jurisdiction of OBRE.
The statements under subdivision (3) of this Section
shall be in form and substance the same as those statements
required under Section 5-60 of this Act and shall operate to
the same extent.
(e) Upon the loss of a managing broker who is not
replaced by the sponsoring broker or in the event of the
death or adjudicated disability of the sole proprietor of an
office, a written request for authorization allowing the
continued operation of the office may be submitted to OBRE
within 15 days of the loss. OBRE may issue a written
authorization allowing the continued operation, provided that
a licensed broker, or in the case of the death or adjudicated
disability of a sole proprietor, the representative of the
estate, assumes responsibility, in writing, for the operation
of the office and agrees to personally supervise the
operation of the office. No such written authorization shall
be valid for more than 60 days unless extended by OBRE for
good cause shown and upon written request by the broker or
representative.
Section 5-50. Expiration date and renewal period of
broker, salesperson, or leasing agent license; sponsoring
broker; register of licensees; pocket card.
(a) The expiration date and renewal period for each
license issued under this Act shall be set by rule. Except
as otherwise provided in Section 5-55 of this Act, the holder
of a license may renew the license within 90 days preceding
the expiration date thereof by paying the fees specified by
rule. Upon written request from the sponsoring broker, OBRE
shall prepare and mail to the sponsoring broker a listing of
licensees under this Act who, according to the records of
OBRE, are sponsored by that broker. Every licensee
associated with or employed by a broker whose license is
revoked, suspended, terminated, or expired shall be
considered as inoperative until such time as the sponsoring
broker's license is reinstated or renewed, or the licensee
changes employment as set forth in subsection (c) of Section
5-40 of this Act.
(b) OBRE shall establish and maintain a register of all
persons currently licensed by the State and shall issue and
prescribe a form of pocket card. Upon payment by a licensee
of the appropriate fee as prescribed by rule for engagement
in the activity for which the licensee is qualified and holds
a license for the current period, OBRE shall issue a pocket
card to the licensee. The pocket card shall be verification
that the required fee for the current period has been paid
and shall indicate that the person named thereon is licensed
for the current renewal period as a broker, salesperson, or
leasing agent as the case may be. The pocket card shall
further indicate that the person named thereon is authorized
by OBRE to engage in the licensed activity appropriate for
his or her status (broker, salesperson, or leasing agent).
Each licensee shall carry on his or her person his or her
pocket card or, if such pocket card has not yet been issued,
a properly issued sponsor card when engaging in any licensed
activity and shall display the same on demand.
Section 5-55. Expiration and renewal of broker or
salesperson license.
(a) Any broker or salesperson whose license under this
Act has expired shall be eligible to renew the license for a
period of 2 years following the expiration date, provided the
broker or salesperson pays the fees as prescribed by rule. A
broker or salesperson whose license has been expired for more
than 2 years shall be required to meet the requirements for a
new license.
(b) Notwithstanding any other provisions of this Act to
the contrary, any broker or salesperson whose license under
this Act has expired is eligible to renew the license without
paying any lapsed renewal fees or reinstatement fee, provided
that the license expired while the broker or salesperson was:
(1) on active duty with the United States Army,
United States Navy, United States Marine Corps, United
States Air Force, United States Coast Guard, or the State
Militia called into the service or training of the United
States;
(2) engaged in training or education under the
supervision of the United States prior to induction into
military service; or
(3) serving as the Director of Real Estate in the
State of Illinois or as an employee of OBRE.
A broker or salesperson shall be eligible to renew a
license under the provisions of this Section for a period of
2 years following the termination of the service, education,
or training, provided that the termination was by other than
dishonorable discharge and provided that the licensee
furnishes OBRE an affidavit specifying that the broker or
salesperson has been so engaged and that the service,
education, or training has been so terminated.
Section 5-60. Broker licensed in another state;
nonresident salesperson; reciprocal agreements; agent for
service of process.
(a) A broker's license may be issued by OBRE to a broker
licensed under the laws of another state of the United
States, under the following conditions:
(1) the broker holds a broker's license in his or
her state of domicile;
(2) the standards for that state for licensing as a
broker are substantially equivalent to or greater than
the minimum standards in the State of Illinois;
(3) the broker has been actively practicing as a
broker in the broker's state of domicile for a period of
not less than 2 years, immediately prior to the date of
application;
(4) the broker furnishes OBRE with a statement
under seal of the proper licensing authority of the state
in which the broker is licensed showing that the broker
has an active broker's license, that the broker is in
good standing, and that no complaints are pending against
the broker in that state; and
(5) the broker completes a course of education and
passes a test on Illinois specific real estate brokerage
laws.
(b) A nonresident salesperson employed by or associated
with a nonresident broker holding a broker's license in this
State pursuant to this Section may, in the discretion of
OBRE, be issued a nonresident salesperson's license under the
nonresident broker provided all of the following conditions
are met:
(1) the salesperson maintains an active license in
the state in which he or she is domiciled;
(2) the salesperson is domiciled in the same state
as the broker with whom he or she is associated; and
(3) the salesperson completes a course of education
and passes a test on Illinois specific real estate
brokerage laws.
The nonresident broker with whom the salesperson is
associated shall comply with the provisions of this Act and
issue the salesperson a sponsor card upon the form provided
by OBRE.
(c) As a condition precedent to the issuance of a
license to a nonresident broker or salesperson, the broker or
salesperson shall agree in writing to abide by all the
provisions of this Act with respect to his or her real estate
activities within the State of Illinois and submit to the
jurisdiction of OBRE as provided in this Act. The agreement
shall be filed with OBRE and shall remain in force for so
long as the nonresident broker or salesperson is licensed by
this State and thereafter with respect to acts or omissions
committed while licensed as a broker or salesperson in this
State.
(d) Prior to the issuance of any license to any
nonresident, verification of active licensure issued for the
conduct of such business in any other state must be filed
with OBRE by the nonresident, and the same fees must be paid
as provided in this Act for the obtaining of a broker's or
salesperson's license in this State.
(e) Licenses previously granted under reciprocal
agreements shall remain in force, unless suspended, revoked,
or terminated by OBRE for any reason provided for suspension,
revocation, or termination of a resident licensee's license.
Licenses granted under reciprocal agreements may be renewed
in the same manner as a resident's license.
(f) Prior to the issuance of a license to a nonresident
broker or salesperson, the broker or salesperson shall file
with OBRE a designation in writing that appoints the
Commissioner to act as his or her agent upon whom all
judicial and other process or legal notices directed to the
broker or salesperson may be served. Service upon the agent
so designated shall be equivalent to personal service upon
the licensee. Copies of the appointment, certified by the
Commissioner, shall be deemed sufficient evidence thereof and
shall be admitted in evidence with the same force and effect
as the original thereof might be admitted. In the written
designation, the broker or salesperson shall agree that any
lawful process against the licensee that is served upon the
agent shall be of the same legal force and validity as if
served upon the licensee and that the authority shall
continue in force so long as any liability remains
outstanding in this State. Upon the receipt of any process
or notice, the Commissioner shall forthwith mail a copy of
the same by certified mail to the last known business address
of the licensee.
(g) Any person holding a valid license under this
Section shall be eligible to obtain a resident broker's or
salesperson's license without examination should that person
change their state of domicile to Illinois and that person
otherwise meets the qualifications or licensure under this
Act.
Section 5-65. Fees. OBRE shall provide by rule for fees
to be paid by applicants and licensees to cover the
reasonable costs of OBRE in administering and enforcing the
provisions of this Act. OBRE may also provide by rule for
general fees to cover the reasonable expenses of carrying out
other functions and responsibilities under this Act.
Section 5-70. Continuing education requirement; broker
or salesperson.
(a) The requirements of this Section apply to all
licensees who have had a license for less than 15 years as of
January 1, 1992.
(b) Except as otherwise provided in this Section, each
person who applies for renewal of his or her license as a
real estate broker or real estate salesperson must
successfully complete real estate continuing education
courses approved by the Advisory Council at the rate of 6
hours per year or its equivalent. No license may be renewed
except upon the successful completion of the required courses
or their equivalent or upon a waiver of those requirements
for good cause shown as determined by the Commissioner with
the recommendation of the Advisory Council. The requirements
of this Article are applicable to all brokers and
salespersons except those brokers and salespersons who,
during the pre-renewal period:
(1) serve in the armed services of the United
States;
(2) serve as an elected State or federal official;
(3) serve as a full-time employee of OBRE; or
(4) are admitted to practice law pursuant to
Illinois Supreme Court rule.
(c) A person who is issued an initial license as a real
estate salesperson less than one year prior to the expiration
date of that license shall not be required to complete
continuing education as a condition of license renewal. A
person who is issued an initial license as a real estate
broker less than one year prior to the expiration date of
that license and who has not been licensed as a real estate
salesperson during the pre-renewal period shall not be
required to complete continuing education as a condition of
license renewal.
(d) The continuing education requirement for
salespersons and brokers shall consist of a core curriculum
and an elective curriculum, to be established by the Advisory
Council. In meeting the continuing education requirements of
this Act, at least 3 hours per year or their equivalent shall
be required to be completed in the core curriculum. In
establishing the core curriculum, the Advisory Council shall
consider subjects that will educate licensees on recent
changes in applicable laws and new laws and refresh the
licensee on areas of the license law and OBRE policy that the
Advisory Council deems appropriate, and any other areas that
the Advisory Council deems timely and applicable in order to
prevent violations of this Act and to protect the public. In
establishing the elective curriculum, the Advisory Council
shall consider subjects that cover the various aspects of the
practice of real estate that are covered under the scope of
this Act. However, the elective curriculum shall not include
any offerings referred to in Section 5-85 of this Act.
(e) The subject areas of continuing education courses
approved by the Advisory Council may include without
limitation the following:
(1) license law and escrow;
(2) antitrust;
(3) fair housing;
(4) agency;
(5) appraisal;
(6) property management;
(7) residential brokerage;
(8) farm property management;
(9) rights and duties of sellers, buyers, and
brokers;
(10) commercial brokerage and leasing; and
(11) real estate financing.
(f) In lieu of credit for those courses listed in
subsection (e) of this Section, credit may be earned for
serving as a licensed instructor in an approved course of
continuing education. The amount of credit earned for
teaching a course shall be the amount of continuing education
credit for which the course is approved for licensees taking
the course.
(g) Credit hours may be earned for self-study programs
approved by the Advisory Council.
(h) A broker or salesperson may earn credit for a
specific continuing education course only once during the
prerenewal period.
(i) No more than 6 hours of continuing education credit
may be earned in one calendar day.
Section 5-75. Out-of-state continuing education credit.
If a renewal applicant has earned continuing education hours
in another state or territory for which he or she is claiming
credit toward full compliance in Illinois, the Advisory
Council shall review, approve, or disapprove those hours
based upon whether the course is one that would be approved
under Section 5-70 of this Act, whether the course meets the
basic requirements for continuing education under this Act,
and any other criteria that is provided by statute or rule.
Section 5-80. Evidence of compliance with continuing
education requirements.
(a) Each renewal applicant shall certify, on his or her
renewal application, full compliance with continuing
education requirements set forth in Section 5-70. The
continuing education school shall retain and submit to OBRE
after the completion of each course evidence of those
successfully completing the course as provided by rule.
(b) OBRE may require additional evidence demonstrating
compliance with the continuing education requirements. The
renewal applicant shall retain and produce the evidence of
compliance upon request of OBRE.
Section 5-85. Offerings not meeting continuing education
requirements. The following offerings do not meet the
continuing education requirements:
(1) Examination preparation offerings, except as
provided in Section 5-70 of this Act.
(2) Offerings in mechanical office and business
skills such as typing, speed reading, memory improvement,
advertising, or psychology of sales.
(3) Sales promotion or other meetings held in
conjunction with the general business of the attendee or
his or her employer.
(4) Meetings that are a normal part of in-house
staff or employee training.
The offerings listed in this Section do not limit the
Advisory Council's authority to disapprove any course that
fails to meet the standards of this Article 5 or rules
adopted by OBRE.
ARTICLE 10. COMPENSATION AND BUSINESS PRACTICES
Section 10-5. Payment of compensation.
(a) No licensee shall pay compensation directly to a
licensee sponsored by another broker for the performance of
licensed activities. No licensee sponsored by a broker may
pay compensation to any licensee other than his or her
sponsoring broker for the performance of licensed activities
unless the licensee paying the compensation is a principal to
the transaction. However, a non-sponsoring broker may pay
compensation directly to a licensee sponsored by another or a
person who is not sponsored by a broker if the payments are
made pursuant to terms of an employment agreement that was
previously in place between a licensee and the non-sponsoring
broker, and the payments are for licensed activity performed
by that person while previously sponsored by the now
non-sponsoring broker.
(b) No licensee sponsored by a broker shall accept
compensation for the performance of activities under this Act
except from the broker by whom the licensee is sponsored,
except as provided in this Section.
(c) Any person that is a licensed personal assistant for
another licensee may only be compensated in his or her
capacity as a personal assistant by the sponsoring broker for
that licensed personal assistant.
(d) One sponsoring broker may pay compensation directly
to another sponsoring broker for the performance of licensed
activities.
Section 10-10. Disclosure of compensation.
(a) A licensee must disclose to a client the sponsoring
broker's compensation and policy with regard to cooperating
with brokers who represent other parties in a transaction.
(b) A licensee must disclose to a client all sources of
compensation related to the transaction received by the
licensee from a third party.
(c) If a licensee refers a client to a third party in
which the licensee has greater than a 1% ownership interest
or from which the licensee receives or may receive dividends
or other profit sharing distributions, other than a publicly
held or traded company, for the purpose of the client
obtaining services related to the transaction, then the
licensee shall disclose that fact to the client at the time
of making the referral.
(d) If in any one transaction a sponsoring broker
receives compensation from both the buyer and seller or
lessee and lessor of real estate, the sponsoring broker shall
disclose in writing to a client the fact that the
compensation is being paid by both buyer and seller or lessee
and lessor.
(e) Nothing in the Act shall prohibit the cooperation
with or a payment of compensation to a person not domiciled
in this State who is licensed as a real estate broker in his
or her state of domicile.
Section 10-15. No compensation to persons in violation
of Act; compensation to unlicensed persons; consumer.
(a) No compensation may be paid to any unlicensed person
in exchange for the person performing licensed activities in
violation of this Act.
(b) No action or suit shall be instituted, nor recovery
therein be had, in any court of this State by any person,
partnership, registered limited liability partnership,
limited liability company, or corporation for compensation
for any act done or service performed, the doing or
performing of which is prohibited by this Act to other than
licensed brokers, salespersons, or leasing agents unless the
person, partnership, registered limited liability
partnership, limited liability company, or corporation was
duly licensed hereunder as a broker, salesperson, or leasing
agent under this Act at the time that any such act was done
or service performed that would give rise to a cause of
action for compensation.
(c) A licensee may offer compensation, including prizes,
merchandise, services, rebates, discounts, or other
consideration to an unlicensed person who is a party to a
contract to buy or sell real estate or is a party to a
contract for the lease of real estate, so long as the offer
complies with the provisions of subdivision (26) of
subsection (h) of Section 20-20 of this Act.
(d) A licensee may offer cash, gifts, prizes, awards,
coupons, merchandise, rebates or chances to win a game of
chance, if not prohibited by any other law or statute, to a
consumer as an inducement to that consumer to use the
services of the licensee even if the licensee and consumer do
not ultimately enter into a broker-client relationship so
long as the offer complies with the provisions of subdivision
(26) of subsection (h) of Section 20-20 of this Act.
Section 10-20. Sponsoring broker; employment agreement.
(a) A licensee may perform activities as a licensee only
for his or her sponsoring broker. A licensee must have only
one sponsoring broker at any one time.
(b) Every broker who employs licensees or has an
independent contractor relationship with a licensee shall
have a written employment agreement with each such licensee.
The broker having this written employment agreement with the
licensee must be that licensee's sponsoring broker.
(c) Every sponsoring broker must have a written
employment agreement with each licensee the broker sponsors.
The agreement shall address the employment or independent
contractor relationship terms, including without limitation
supervision, duties, compensation, and termination.
(d) Every sponsoring broker must have a written
employment agreement with each licensed personal assistant
who assists a licensee sponsored by the sponsoring broker.
This requirement applies to all licensed personal assistants
whether or not they perform licensed activities in their
capacity as a personal assistant. The agreement shall address
the employment or independent contractor relationship terms,
including without limitation supervision, duties,
compensation, and termination.
(e) Notwithstanding the fact that a sponsoring broker
has an employment agreement with a licensee, a sponsoring
broker may pay compensation directly to a corporation solely
owned by that licensee that has been formed for the purpose
of receiving compensation earned by the licensee. A
corporation formed for the purpose herein stated in this
subsection (e) shall not be required to be licensed under
this Act so long as the person who is the sole shareholder of
the corporation is licensed.
Section 10-25. Expiration of brokerage agreement. No
licensee shall obtain any written brokerage agreement that
does not provide for automatic expiration within a definite
period of time. No notice of termination at the final
expiration thereof shall be required. Any written brokerage
agreement not containing a provision for automatic expiration
shall be void. When the license of any sponsoring broker is
suspended or revoked, any brokerage agreement with the
sponsoring broker shall be deemed to expire upon the
effective date of the suspension or revocation.
Section 10-27. Disclosure of licensee status. Each
licensee shall disclose, in writing, his or her status as a
licensee to all parties in a transaction when the licensee is
selling, leasing, or purchasing any interest, direct or
indirect, in the real estate that is the subject of the
transaction.
Section 10-30. Advertising.
(a) No advertising shall be fraudulent, deceptive,
inherently misleading, or proven to be misleading in
practice. It shall be considered misleading or untruthful
if, when taken as a whole, there is a distinct and reasonable
possibility that it will be misunderstood or will deceive the
ordinary purchaser, seller, lessee, lessor, or owner.
Advertising shall contain all information necessary to
communicate the information contained therein to the public
in a direct and readily comprehensible manner.
(b) No blind advertisements may be used by any licensee
except as provided for in this Section.
(c) A licensee shall disclose, in writing, to all
parties in a transaction his or her status as a licensee and
any and all interest the licensee has or may have in the real
estate constituting the subject matter thereof, directly or
indirectly, according to the following guidelines:
(1) On broker yard signs or in broker
advertisements, no disclosure of ownership is necessary.
However, the ownership shall be indicated on any property
data form and disclosed to persons responding to any
advertisement or any sign. The term "broker owned" or
"agent owned" is sufficient disclosure.
(2) A sponsored or inoperative licensee selling or
leasing property, owned solely by the sponsored or
inoperative licensee, without utilizing brokerage
services of their sponsoring broker or any other
licensee, may advertise "By Owner". For purposes of this
Section, property is "solely owned" by a sponsored or
inoperative licensee if he or she (i) has a 100%
ownership interest alone, (ii) has ownership as a joint
tenant or tenant by the entirety, or (iii) holds a 100%
beneficial interest in a land trust. Sponsored or
inoperative licensees selling or leasing "By Owner" shall
comply with the following if advertising by owner:
(A) On "By Owner" yard signs, the sponsored or
inoperative licensee shall indicate "broker owned"
or "agent owned." "By Owner" advertisements used in
any medium of advertising shall include the term
"broker owned" or "agent owned."
(B) If a sponsored or inoperative licensee
runs advertisements, for the purpose of purchasing
or leasing real estate, he or she shall disclose in
the advertisements his or her status as a licensee.
(C) A sponsored or inoperative licensee shall
not use the sponsoring broker's name or the
sponsoring broker's company name in connection with
the sale, lease, or advertisement of the property
nor utilize the sponsoring broker's or company's
name in connection with the sale, lease, or
advertising of the property in a manner likely to
create confusion among the public as to whether or
not the services of a real estate company are being
utilized or whether or not a real estate company has
an ownership interest in the property.
(d) A sponsored licensee may not advertise under his or
her own name. Advertising shall be under the direct
supervision of the sponsoring or managing broker and in the
sponsoring broker's business name, which in the case of a
franchise shall include the franchise affiliation as well as
the name of the individual firm. This provision does not
apply under the following circumstances:
(1) When a licensee enters into a brokerage
agreement relating to his or her own real estate, or real
estate in which he or she has an ownership interest, with
another licensed broker; or
(2) When a licensee is selling or leasing his or
her own real estate or buying or leasing real estate for
himself or herself, after providing the appropriate
written disclosure of his or her ownership interest as
required in paragraph (2) of subsection (c) of this
Section.
(e) No licensee shall list his or her name under the
heading or title "Real Estate" in the telephone directory or
otherwise advertise in his or her own name to the general
public through any medium of advertising as being in the real
estate business without listing his or her sponsoring
broker's business name.
(f) The sponsoring broker's business name and the name
of the licensee must appear in all advertisements, including
business cards. Nothing in this Act shall be construed to
require specific print size as between the broker's business
name and the name of the licensee.
ARTICLE 15. AGENCY RELATIONSHIPS
Section 15-5. Legislative intent.
(a) The General Assembly finds that application of the
common law of agency to the relationships among real estate
brokers and salespersons and consumers of real estate
brokerage services has resulted in misunderstandings and
consequences that have been contrary to the best interests of
the public. The General Assembly further finds that the real
estate brokerage industry has a significant impact upon the
economy of the State of Illinois and that it is in the best
interest of the public to provide codification of the
relationships between real estate brokers and salespersons
and consumers of real estate brokerage services in order to
prevent detrimental misunderstandings and misinterpretations
of the relationships by consumers, real estate brokers, and
salespersons and thus promote and provide stability in the
real estate market. This Article 15 is enacted to govern the
relationships between consumers of real estate brokerage
services and real estate brokers and salespersons to the
extent not governed by an individual written agreement
between a sponsoring broker and a consumer, providing that
there is a relationship other than designated agency. This
Article 15 applies to the exclusion of the common law
concepts of principal and agent and to the fiduciary duties,
which have been applied to real estate brokers, salespersons,
and real estate brokerage services.
(b) The General Assembly further finds that this Article
15 is not intended to prescribe or affect contractual
relationships between real estate brokers and the broker's
affiliated licensees.
(c) This Article 15 may serve as a basis for private
rights of action and defenses by sellers, buyers, landlords,
tenants, real estate brokers, and real estate salespersons.
The private rights of action, however, do not extend to the
provisions of any other Articles of this Act.
Section 15-10. Relationships between licensees and
consumers. Licensees shall be considered to be representing
the consumer they are working with as a designated agent for
the consumer unless:
(1) there is a written agreement between the
sponsoring broker and the consumer providing that there
is a different relationship; or
(2) the licensee is performing only ministerial
acts on behalf of the consumer.
Section 15-15. Duties of licensees representing clients.
(a) A licensee representing a client shall:
(1) Perform the terms of the brokerage agreement
between a broker and the client.
(2) Promote the best interest of the client by:
(A) Seeking a transaction at the price and
terms stated in the brokerage agreement or at a
price and terms otherwise acceptable to the client.
(B) Timely presenting all offers to and from
the client, unless the client has waived this duty.
(C) Disclosing to the client material facts
concerning the transaction of which the licensee has
actual knowledge, unless that information is
confidential information. Material facts do not
include the following when located on or related to
real estate that is not the subject of the
transaction: (i) physical conditions that do not
have a substantial adverse effect on the value of
the real estate, (ii) fact situations, or (iii)
occurrences.
(D) Timely accounting for all money and
property received in which the client has, may have,
or should have had an interest.
(E) Obeying specific directions of the client
that are not otherwise contrary to applicable
statutes, ordinances, or rules.
(F) Acting in a manner consistent with
promoting the client's best interests as opposed to
a licensee's or any other person's self-interest.
(3) Exercise reasonable skill and care in the
performance of brokerage services.
(4) Keep confidential all confidential information
received from the client.
(5) Comply with all requirements of this Act and
all applicable statutes and regulations, including
without limitation fair housing and civil rights
statutes.
(b) A licensee representing a client does not breach a
duty or obligation to the client by showing alternative
properties to prospective buyers or tenants or by showing
properties in which the client is interested to other
prospective buyers or tenants.
(c) A licensee representing a buyer or tenant client
will not be presumed to have breached a duty or obligation to
that client by working on the basis that the licensee will
receive a higher fee or compensation based on higher selling
price or lease cost.
(d) A licensee shall not be liable to a client for
providing false information to the client if the false
information was provided to the licensee by a customer unless
the licensee knew or should have known the information was
false.
(e) Nothing in the Section shall be construed as
changing a licensee's duty under common law as to negligent
or fraudulent misrepresentation of material information.
Section 15-20. Failure to disclose information not
affecting physical condition. No cause of action shall arise
against a licensee for the failure to disclose: (i) that an
occupant of the property was afflicted with Human
Immunodeficiency Virus (HIV) or any other medical condition
(ii) that the property was the site of an act or occurrence
that had no effect on the physical condition of the property
or its environment or the structures located thereon; (iii)
fact situations on property that is not the subject of the
transaction; or (iv) physical conditions located on property
that is not the subject of the transaction that do not have a
substantial adverse effect on the value of the real estate
that is the subject of the transaction.
Section 15-25. Licensee's relationship with customers.
(a) Licensees shall treat all customers honestly and
shall not negligently or knowingly give them false
information. A licensee engaged by a seller client shall
timely disclose to customers who are prospective buyers all
latent material adverse facts pertaining to the physical
condition of the property that are actually known by the
licensee and that could not be discovered by a reasonably
diligent inspection of the property by the customer. A
licensee shall not be liable to a customer for providing
false information to the customer if the false information
was provided to the licensee by the licensee's client and the
licensee did not have actual knowledge that the information
was false. No cause of action shall arise on behalf of any
person against a licensee for revealing information in
compliance with this Section.
(b) A licensee representing a client in a real estate
transaction may provide assistance to a customer by
performing ministerial acts. Performing those ministerial
acts shall not be construed in a manner that would violate
the brokerage agreement with the client, and performing those
ministerial acts for the customer shall not be construed in a
manner as to form a brokerage agreement with the customer.
Section 15-30. Duties after termination of brokerage
agreement. Except as may be provided in a written agreement
between the broker and the client, neither a sponsoring
broker nor any licensee affiliated with the sponsoring broker
owes any further duties to the client after termination,
expiration, or completion of performance of the brokerage
agreement, except:
(1) to account for all moneys and property relating
to the transaction; and
(2) to keep confidential all confidential
information received during the course of the brokerage
agreement.
Section 15-35. Agency relationship disclosure.
(a) A consumer shall be advised of the following no
later than entering into a brokerage agreement with the
sponsoring broker:
(1) That a designated agency relationship exists,
unless there is written agreement between the sponsoring
broker and the consumer providing for a different
brokerage relationship.
(2) The name or names of his or her designated
agent or agents in writing.
(3) The sponsoring broker's compensation and policy
with regard to cooperating with brokers who represent
other parties in a transaction.
(b) A licensee shall disclose in writing to a customer
that the licensee is not acting as the agent of the customer
at a time intended to prevent disclosure of confidential
information from a customer to a licensee, but in no event
later than the preparation of an offer to purchase or lease
real property. This subsection (b) does not apply to
residential lease or rental transactions unless the lease or
rental agreement includes an option to purchase real estate.
Section 15-40. Compensation does not determine agency.
Compensation does not determine agency relationship. The
payment or promise of payment of compensation to a licensee
is not determinative of whether an agency relationship has
been created between any licensee and a consumer.
Section 15-45. Dual agency.
(a) A licensee may act as a dual agent only with the
informed written consent of all clients. Informed written
consent shall be presumed to have been given by any client
who signs a document that includes the following:
"The undersigned (insert name(s)), ("Licensee"), may
undertake a dual representation (represent both the
seller or landlord and the buyer or tenant) for the sale
or lease of property. The undersigned acknowledge they
were informed of the possibility of this type of
representation. Before signing this document please read
the following: Representing more than one party to a
transaction presents a conflict of interest since both
clients may rely upon Licensee's advice and the client's
respective interests may be adverse to each other.
Licensee will undertake this representation only with the
written consent of ALL clients in the transaction. Any
agreement between the clients as to a final contract
price and other terms is a result of negotiations between
the clients acting in their own best interests and on
their own behalf. You acknowledge that Licensee has
explained the implications of dual representation,
including the risks involved, and understand that you
have been advised to seek independent advice from your
advisors or attorneys before signing any documents in
this transaction.
WHAT A LICENSEE CAN DO FOR CLIENTS
WHEN ACTING AS A DUAL AGENT
1. Treat all clients honestly.
2. Provide information about the property to the buyer
or tenant.
3. Disclose all latent material defects in the property
that are known to the Licensee.
4. Disclose financial qualification of the buyer or
tenant to the seller or landlord.
5. Explain real estate terms.
6. Help the buyer or tenant to arrange for property
inspections.
7. Explain closing costs and procedures.
8. Help the buyer compare financing alternatives.
9. Provide information about comparable properties that
have sold so both clients may make educated decisions on
what price to accept or offer.
WHAT LICENSEE CANNOT DISCLOSE TO CLIENTS WHEN
ACTING AS A DUAL AGENT
1. Confidential information that Licensee may know about
a client, without that client's permission.
2. The price the seller or landlord will take other than
the listing price without permission of the seller or
landlord.
3. The price the buyer or tenant is willing to pay
without permission of the buyer or tenant.
4. A recommended or suggested price the buyer or tenant
should offer.
5. A recommended or suggested price the seller or
landlord should counter with or accept.
If either client is uncomfortable with this
disclosure and dual representation, please let Licensee
know. You are not required to sign this document unless
you want to allow Licensee to proceed as a Dual Agent in
this transaction. By signing below, you acknowledge that
you have read and understand this form and voluntarily
consent to Licensee acting as a Dual Agent (that is, to
represent BOTH the seller or landlord and the buyer or
tenant) should that become necessary."
(b) The dual agency disclosure form provided for in
subsection (a) of this Section must be presented by a
licensee, who offers dual representation, to the client at
the time the brokerage agreement is entered into and may be
signed by the client at that time or at any time before the
licensee acts as a dual agent as to the client.
(c) A licensee acting in a dual agency capacity in a
transaction must obtain a written confirmation from the
licensee's clients of their prior consent for the licensee to
act as a dual agent in the transaction. This confirmation
should be obtained at the time the clients are executing any
offer or contract to purchase or lease in a transaction in
which the licensee is acting as a dual agent. This
confirmation may be included in another document, such as a
contract to purchase, in which case the client must not only
sign the document but also initial the confirmation of dual
agency provision. That confirmation must state, at a
minimum, the following:
"The undersigned confirm that they have previously
consented to (insert name(s)), ("Licensee"), acting as a
Dual Agent in providing brokerage services on their
behalf and specifically consent to Licensee acting as a
Dual Agent in regard to the transaction referred to in
this document."
(d) No cause of action shall arise on behalf of any
person against a dual agent for making disclosures allowed or
required by this Article, and the dual agent does not
terminate any agency relationship by making the allowed or
required disclosures.
(e) In the case of dual agency, each client and the
licensee possess only actual knowledge and information.
There shall be no imputation of knowledge or information
among or between clients, brokers, or their affiliated
licensees.
(f) In any transaction, a licensee may without liability
withdraw from representing a client who has not consented to
a disclosed dual agency. The withdrawal shall not prejudice
the ability of the licensee to continue to represent the
other client in the transaction or limit the licensee from
representing the client in other transactions. When a
withdrawal as contemplated in this subsection (f) occurs, the
licensee shall not receive a referral fee for referring a
client to another licensee unless written disclosure is made
to both the withdrawing client and the client that continues
to be represented by the licensee.
Section 15-50. Designated agency.
(a) A sponsoring broker entering into an agreement with
any person for the listing of property or for the purpose of
representing any person in the buying, selling, exchanging,
renting, or leasing of real estate may specifically designate
those licensees employed by or affiliated with the sponsoring
broker who will be acting as legal agents of that person to
the exclusion of all other licensees employed by or
affiliated with the sponsoring broker. A sponsoring broker
entering into an agreement under the provisions of this
Section shall not be considered to be acting for more than
one party in a transaction if the licensees specifically
designated as legal agents of a person are not representing
more than one party in a transaction.
(b) A sponsoring broker designating affiliated licensees
to act as agents of clients shall take ordinary and necessary
care to protect confidential information disclosed by a
client to his or her designated agent.
(c) A designated agent may disclose to his or her
sponsoring broker or persons specified by the sponsoring
broker confidential information of a client for the purpose
of seeking advice or assistance for the benefit of the client
in regard to a possible transaction. Confidential
information shall not be disclosed by the sponsoring broker
or other specified representative of the sponsoring broker
unless otherwise required by this Act or requested or
permitted by the client who originally disclosed the
confidential information.
Section 15-55. No subagency. A broker is not considered
to be a subagent of a client of another broker solely by
reason of membership or other affiliation by the brokers in a
multiple listing service or other similar information source,
and an offer of subagency may not be made through a multiple
listing service or other similar information source.
Section 15-60. Vicarious liability. A consumer shall not
be vicariously liable for the acts or omissions of a licensee
in providing licensed activities for or on behalf of the
consumer.
Section 15-65. Regulatory enforcement. Nothing contained
in this Article limits OBRE in its regulation of licensees
under other Articles of this Act and the substantive rules
adopted by OBRE. OBRE, with the advice of the Board, is
authorized to promulgate any rules that may be necessary for
the implementation and enforcement of this Article 15.
Section 15-70. Actions for damages.
(a) In any action brought under this Article 15, the
court may, in its discretion, award only actual damages and
court costs or grant injunctive relief, when appropriate.
(b) Any action under this Article 15 shall be forever
barred unless commenced within 2 years after the person
bringing the action knew or should reasonably have known of
such act or omission. In no event shall the action be
brought more than 5 years after the date on which the act or
omission occurred. If the person entitled to bring the
action is under the age of 18 or under legal disability the
period of limitations shall not begin to run until the
disability is removed.
ARTICLE 20. DISCIPLINARY PROVISIONS
Section 20-5. Index of decisions. OBRE shall maintain an
index of formal decisions regarding the issuance, refusal to
issue, renewal, refusal to renew, revocation, and suspension
of licenses and probationary or other disciplinary action
taken under this Act on or after December 31, 1999. The
decisions shall be indexed according to the Sections of
statutes and the administrative rules, if any, that are the
basis for the decision. The index shall be available to the
public during regular business hours.
Section 20-10. Unlicensed practice; civil penalty.
(a) Any person who practices, offers to practice,
attempts to practice, or holds oneself out to practice as a
real estate broker, real estate salesperson, or leasing agent
without being licensed under this Act shall, in addition to
any other penalty provided by law, pay a civil fine to OBRE
in an amount not to exceed $25,000 for each offense as
determined by OBRE. The civil fine shall be assessed by OBRE
after a hearing is held in accordance with the provisions set
forth in this Act regarding the provision of a hearing for
the discipline of a license.
(b) OBRE has the authority and power to investigate any
and all unlicensed activity.
(c) The civil fine shall be paid within 60 days after
the effective date of the order imposing the civil fine. The
order shall constitute a judgement and may be filed and
execution had thereon in the same manner from any court of
record.
Section 20-15. Violations. The commission of a single
act prohibited by this Act or prohibited by the rules
promulgated under this Act or a violation of a disciplinary
order issued under this Act constitutes a violation of this
Act.
Section 20-20. Disciplinary actions; causes. OBRE may
refuse to issue or renew a license, may place on probation,
suspend, or revoke any license, or may censure, reprimand, or
otherwise discipline or impose a civil fine not to exceed
$25,000 upon any licensee hereunder for any one or any
combination of the following causes:
(a) When the applicant or licensee has, by false or
fraudulent representation, obtained or sought to obtain a
license.
(b) When the applicant or licensee has been convicted of
any crime, an essential element of which is dishonesty or
fraud or larceny, embezzlement, or obtaining money, property,
or credit by false pretenses or by means of a confidence
game, has been convicted in this or another state of a crime
that is a felony under the laws of this State, or has been
convicted of a felony in a federal court.
(c) When the applicant or licensee has been adjudged to
be a person under legal disability or subject to involuntary
admission or to meet the standard for judicial admission as
provided in the Mental Health and Developmental Disabilities
Code.
(d) When the licensee performs or attempts to perform
any act as a broker or salesperson in a retail sales
establishment from an office, desk, or space that is not
separated from the main retail business by a separate and
distinct area within the establishment.
(e) Discipline of a licensee by another state, the
District of Columbia, a territory, a foreign nation, a
governmental agency, or any other entity authorized to impose
discipline if at least one of the grounds for that discipline
is the same as or the equivalent of one of the grounds for
discipline set forth in this Act, in which case the only
issue will be whether one of the grounds for that discipline
is the same or equivalent to one of the grounds for
discipline under this Act.
(f) When the applicant or licensee has engaged in real
estate activity without a license or after the licensee's
license was expired or while the license was inoperative.
(g) When the applicant or licensee attempts to subvert
or cheat on the Real Estate License Exam or continuing
education exam or aids and abets an applicant to subvert or
cheat on the Real Estate License Exam or continuing education
exam administered pursuant to this Act.
(h) When the licensee in performing, attempting to
perform, or pretending to perform any act as a broker,
salesperson, or leasing agent or when the licensee in
handling his or her own property, whether held by deed,
option, or otherwise, is found guilty of:
(1) Making any substantial misrepresentation or
untruthful advertising.
(2) Making any false promises of a character likely
to influence, persuade, or induce.
(3) Pursuing a continued and flagrant course of
misrepresentation or the making of false promises through
licensees, employees, agents, advertising, or otherwise.
(4) Any misleading or untruthful advertising, or
using any trade name or insignia of membership in any
real estate organization of which the licensee is not a
member.
(5) Acting for more than one party in a transaction
without providing written notice to all parties for whom
the licensee acts.
(6) Representing or attempting to represent a
broker other than the sponsoring broker.
(7) Failure to account for or to remit any moneys
or documents coming into his or her possession that
belong to others.
(8) Failure to maintain and deposit in a special
account, separate and apart from personal and other
business accounts, all escrow moneys belonging to others
entrusted to a licensee while acting as a real estate
broker, escrow agent, or temporary custodian of the funds
of others or failure to maintain all escrow moneys on
deposit in the account until the transactions are
consummated or terminated, except to the extent that the
moneys, or any part thereof, shall be disbursed prior to
the consummation or termination in accordance with (i)
the written direction of the principals to the
transaction or their duly authorized agents, (ii)
directions providing for the release, payment, or
distribution of escrow moneys contained in any written
contract signed by the principals to the transaction or
their duly authorized agents, or (iii) pursuant to an
order of a court of competent jurisdiction. The account
shall be noninterest bearing, unless the character of the
deposit is such that payment of interest thereon is
otherwise required by law or unless the principals to the
transaction specifically require, in writing, that the
deposit be placed in an interest bearing account.
(9) Failure to make available to the real estate
enforcement personnel of OBRE during normal business
hours all escrow records and related documents maintained
in connection with the practice of real estate within 24
hours of a request for those documents by OBRE personnel.
(10) Failing to furnish copies upon request of all
documents relating to a real estate transaction to all
parties executing them.
(11) Failure of a sponsoring broker to timely
provide information, sponsor cards, or termination of
licenses to OBRE.
(12) Engaging in dishonorable, unethical, or
unprofessional conduct of a character likely to deceive,
defraud, or harm the public.
(13) Commingling the money or property of others
with his or her own.
(14) Employing any person on a purely temporary or
single deal basis as a means of evading the law regarding
payment of commission to nonlicensees on some
contemplated transactions.
(15) Permitting the use of his or her license as a
broker to enable a salesperson or unlicensed person to
operate a real estate business without actual
participation therein and control thereof by the broker.
(16) Any other conduct, whether of the same or a
different character from that specified in this Section,
that constitutes dishonest dealing.
(17) Displaying a "for rent" or "for sale" sign on
any property without the written consent of an owner or
his or her duly authorized agent or advertising by any
means that any property is for sale or for rent without
the written consent of the owner or his or her authorized
agent.
(18) Failing to provide information requested by
OBRE, within 30 days of the request, either as the result
of a formal or informal complaint to OBRE or as a result
of a random audit conducted by OBRE, which would indicate
a violation of this Act.
(19) Advertising by means of a blind advertisement,
except as otherwise permitted in Section 10-30 of this
Act.
(20) Offering guaranteed sales plans, as defined in
clause (A) of this subdivision (20), except to the extent
hereinafter set forth:
(A) A "guaranteed sales plan" is any real
estate purchase or sales plan whereby a licensee
enters into a conditional or unconditional written
contract with a seller by the terms of which a
licensee agrees to purchase a property of the seller
within a specified period of time at a specific
price in the event the property is not sold in
accordance with the terms of a listing contract
between the sponsoring broker and the seller or on
other terms acceptable to the seller.
(B) A licensee offering a guaranteed sales
plan shall provide the details and conditions of the
plan in writing to the party to whom the plan is
offered.
(C) A licensee offering a guaranteed sales
plan shall provide to the party to whom the plan is
offered evidence of sufficient financial resources
to satisfy the commitment to purchase undertaken by
the broker in the plan.
(D) Any licensee offering a guaranteed sales
plan shall undertake to market the property of the
seller subject to the plan in the same manner in
which the broker would market any other property,
unless the agreement with the seller provides
otherwise.
(E) Any licensee who fails to perform on a
guaranteed sales plan in strict accordance with its
terms shall be subject to all the penalties provided
in this Act for violations thereof and, in addition,
shall be subject to a civil fine payable to the
party injured by the default in an amount of up to
$25,000.
(21) Influencing or attempting to influence, by any
words or acts, a prospective seller, purchaser, occupant,
landlord, or tenant of real estate, in connection with
viewing, buying, or leasing real estate, so as to promote
or tend to promote the continuance or maintenance of
racially and religiously segregated housing or so as to
retard, obstruct, or discourage racially integrated
housing on or in any street, block, neighborhood, or
community.
(22) Engaging in any act that constitutes a
violation of any provision of Article 3 of the Illinois
Human Rights Act, whether or not a complaint has been
filed with or adjudicated by the Human Rights Commission.
(23) Inducing any party to a contract of sale or
lease or brokerage agreement to break the contract of
sale or lease or brokerage agreement for the purpose of
substituting, in lieu thereof, a new contract for sale or
lease or brokerage agreement with a third party.
(24) Negotiating a sale, exchange, or lease of real
estate directly with any person if the licensee knows
that the person has a written exclusive brokerage
agreement with another broker, unless specifically
authorized by that broker.
(25) When a licensee is also an attorney, acting as
the attorney for either the buyer or the seller in the
same transaction in which the licensee is acting or has
acted as a broker or salesperson.
(26) Advertising or offering merchandise or
services as free if any conditions or obligations
necessary for receiving the merchandise or services are
not disclosed in the same advertisement or offer. These
conditions or obligations include without limitation the
requirement that the recipient attend a promotional
activity or visit a real estate site. As used in this
subdivision (26), "free" includes terms such as "award",
"prize", "no charge", "free of charge", "without charge",
and similar words or phrases that reasonably lead a
person to believe that he or she may receive or has been
selected to receive something of value, without any
conditions or obligations on the part of the recipient.
(27) Disregarding or violating any provision of the
Land Sales Registration Act of 1989, the Illinois Real
Estate Time-Share Act, or the published rules promulgated
by OBRE to enforce those Acts.
(28) Violating the terms of a disciplinary order
issued by OBRE.
(29) Paying compensation in violation of Article 10
of this Act.
(30) Requiring a party to a transaction who is not
a client of the licensee to allow the licensee to retain
a portion of the escrow moneys for payment of the
licensee's commission or expenses as a condition for
release of the escrow moneys to that party.
(31) Disregarding or violating any provision of
this Act or the published rules promulgated by OBRE to
enforce this Act or aiding or abetting any individual,
partnership, registered limited liability partnership,
limited liability company, or corporation in disregarding
any provision of this Act or the published rules
promulgated by OBRE to enforce this Act.
Section 20-25. Returned checks; fees. Any person who
delivers a check or other payment to OBRE that is returned to
OBRE unpaid by the financial institution upon which it is
drawn shall pay to OBRE, in addition to the amount already
owed to OBRE, a fee of $50. The fees imposed by this Section
are in addition to any other discipline provided under this
Act for unlicensed practice or practice on a nonrenewed
license. OBRE shall notify the person that payment of fees
and fines shall be paid to OBRE by certified check or money
order within 30 calendar days of the notification. If, after
the expiration of 30 days from the date of the notification,
the person has failed to submit the necessary remittance,
OBRE shall automatically terminate the license or deny the
application, without hearing. If, after termination or
denial, the person seeks a license, he or she shall apply to
OBRE for restoration or issuance of the license and pay all
fees and fines due to OBRE. OBRE may establish a fee for the
processing of an application for restoration of a license to
pay all expenses of processing this application. The
Commissioner may waive the fees due under this Section in
individual cases where the Commissioner finds that the fees
would be unreasonable or unnecessarily burdensome.
Section 20-30. Standards of practice of leasing agents;
disciplinary procedures. OBRE may by rule, with the advice of
the Board, prescribe standards of practice to be followed by
licensed leasing agents. Standards of practice shall include
without limitation acts or omissions that leasing agents are
prohibited from engaging in, disciplinary procedures, and
penalties for violating provisions of this Act. Disciplinary
procedures shall conform with disciplinary procedures for
licensed real estate brokers and salespersons. Complaints
shall be heard as provided for in this Act.
Section 20-35. Violations of tax Acts. OBRE may refuse
to issue or renew or may suspend the license of any person
who fails to file a return, pay the tax, penalty, or interest
shown in a filed return, or pay any final assessment of tax,
penalty, or interest, as required by any tax Act administered
by the Department of Revenue, until such time as the
requirements of any such tax Act are satisfied.
Section 20-40. Disciplinary action for educational loan
defaults. OBRE shall deny a license or renewal authorized by
this Act to a person who has defaulted on an educational loan
or scholarship provided or guaranteed by the Illinois Student
Assistance Commission or any governmental agency of this
State; however, OBRE may issue a license or renewal if the
person has established a satisfactory repayment record as
determined by the Illinois Student Assistance Commission or
other appropriate governmental agency of this State.
Additionally, a license issued by OBRE may be suspended or
revoked if the Commissioner, after the opportunity for a
hearing under this Article, finds that the licensee has
failed to make satisfactory repayment to the Illinois Student
Assistance Commission for a delinquent or defaulted loan.
Section 20-45. Nonpayment of child support. In cases in
which the Department of Public Aid has previously determined
that a licensee or a potential licensee is more than 30 days
delinquent in the payment of child support and has
subsequently certified the delinquency to OBRE, OBRE may
refuse to issue or renew or may revoke or suspend that
person's license or may take other disciplinary action
against that person based solely upon the certification of
delinquency made by the Department of Public Aid.
Redetermination of the delinquency by OBRE shall not be
required. In cases regarding the renewal of a license, OBRE
shall not renew any license if the Department of Public Aid
has certified the licensee to be more than 30 days delinquent
in the payment of child support unless the licensee has
arranged for payment of past and current child support
obligations in a manner satisfactory to the Department of
Public Aid. OBRE may impose conditions, restrictions, or
disciplinary action upon that renewal.
Section 20-50. Illegal discrimination. When there has
been an adjudication in a civil or criminal proceeding that a
licensee has illegally discriminated while engaged in any
activity for which a license is required under this Act,
OBRE, upon the recommendation of the Board as to the extent
of the suspension or revocation, shall suspend or revoke the
license of that licensee in a timely manner, unless the
adjudication is in the appeal process. When there has been an
order in an administrative proceeding finding that a licensee
has illegally discriminated while engaged in any activity for
which a license is required under this Act, OBRE, upon
recommendation of the Board as to the nature and extent of
the discipline, shall take one or more of the disciplinary
actions provided for in Section 20-20 of this Act in a timely
manner, unless the administrative order is in the appeal
process.
Section 20-55. Illinois Administrative Procedure Act.
The Illinois Administrative Procedure Act is hereby expressly
adopted and incorporated herein as if all of the provisions
of that Act were included in this Act, except that the
provision of subsection (d) of Section 10-65 of the Illinois
Administrative Procedure Act that provides that at hearings
the licensee has the right to show compliance with all lawful
requirements for retention, continuation, or renewal of the
license is specifically excluded. For the purposes of this
Act, the notice required under the Illinois Administrative
Procedure Act is deemed sufficient when mailed to the last
known address of a party.
Section 20-60. Hearing; investigation; notice;
disciplinary consent order.
(a) OBRE may conduct hearings through the Board or a
duly appointed hearing officer on proceedings to suspend,
revoke, or to refuse to issue or renew licenses of persons
applying for licensure or licensed under this Act or to
censure, reprimand, or impose a civil fine not to exceed
$25,000 upon any licensee hereunder and may revoke, suspend,
or refuse to issue or renew these licenses or censure,
reprimand, or impose a civil fine not to exceed $25,000 upon
any licensee hereunder.
(b) Upon the motion of either OBRE or the Board or upon
the verified complaint in writing of any persons setting
forth facts that if proven would constitute grounds for
suspension or revocation under this Act, OBRE, the Board, or
its subcommittee shall cause to be investigated the actions
of any person so accused who holds a license or is holding
himself or herself out to be a licensee. This person is
hereinafter called the accused.
(c) Prior to initiating any formal disciplinary
proceedings resulting from an investigation conducted
pursuant to subsection (b) of this Section, that matter shall
be reviewed by a subcommittee of the Board according to
procedures established by rule. The subcommittee shall make a
recommendation to the full Board as to the validity of the
complaint and may recommend that the Board not proceed with
formal disciplinary proceedings if the complaint is
determined to be frivolous or without merit.
(d) Except as provided for in Section 20-65 of this Act,
OBRE shall, before suspending, revoking, placing on
probationary status, or taking any other disciplinary action
as OBRE may deem proper with regard to any license:
(1) notify the accused in writing at least 30 days
prior to the date set for the hearing of any charges made
and the time and place for the hearing of the charges to
be heard before the Board under oath; and
(2) inform the accused that upon failure to file an
answer and request a hearing before the date originally
set for the hearing, default will be taken against the
accused and his or her license may be suspended, revoked,
or placed on probationary status, or other disciplinary
action, including limiting the scope, nature, or extent
of the accused's practice, as OBRE may deem proper, may
be taken with regard thereto.
In case the person fails to file an answer after
receiving notice, his or her license may, in the discretion
of OBRE, be suspended, revoked, or placed on probationary
status, or OBRE may take whatever disciplinary action deemed
proper, including limiting the scope, nature, or extent of
the person's practice or the imposition of a fine, without a
hearing, if the act or acts charged constitute sufficient
grounds for such action under this Act.
(e) At the time and place fixed in the notice, the Board
shall proceed to hearing of the charges and both the accused
person and the complainant shall be accorded ample
opportunity to present in person or by counsel such
statements, testimony, evidence and argument as may be
pertinent to the charges or to any defense thereto. The
Board or its hearing officer may continue a hearing date upon
its own motion or upon an accused's motion for one period not
to exceed 30 days. The Board or its hearing officer may
grant further continuances for periods not to exceed 30 days
only upon good cause being shown by the moving party. The
non-moving party shall have the opportunity to object to a
continuance on the record at a hearing upon the motion to
continue. All motions for continuances and any denial or
grant thereof shall be in writing. All motions shall be
submitted not later than 48 hours before the scheduled
hearing unless made upon an emergency basis. In determining
whether good cause for a continuance is shown, the Board or
its hearing officer shall consider such factors as the volume
of cases pending, the nature and complexity of legal issues
raised, the diligence of the party making the request, the
availability of party's legal representative or witnesses,
and the number of previous requests for continuance.
(f) Any unlawful act or violation of any of the
provisions of this Act upon the part of any licensees
employed by a real estate broker or associated by written
agreement with the real estate broker, or unlicensed employee
of a licensed broker, shall not be cause for the revocation
of the license of any such broker, partial or otherwise,
unless it appears to the satisfaction of OBRE that the broker
had knowledge thereof.
(g) OBRE or the Board has power to subpoena any persons
or documents for the purpose of investigation or hearing with
the same fees and mileage and in the same manner as
prescribed by law for judicial procedure in civil cases in
courts of this State. The Commissioner, the Director, any
member of the Board, a certified court reporter, or a hearing
officer shall each have power to administer oaths to
witnesses at any hearing which OBRE is authorized under this
Act to conduct.
(h) Any circuit court or any judge thereof, upon the
application of the accused person, complainant, OBRE, or the
Board, may, by order entered, require the attendance of
witnesses and the production of relevant books and papers
before the Board in any hearing relative to the application
for or refusal, recall, suspension, or revocation of a
license, and the court or judge may compel obedience to the
court's or the judge's order by proceedings for contempt.
(i) OBRE, at its expense, shall preserve a record of all
proceedings at the formal hearing of any case involving the
refusal to issue or the revocation, suspension, or other
discipline of a licensee. The notice of hearing, complaint
and all other documents in the nature of pleadings and
written motions filed in the proceedings, the transcript of
testimony, the report of the Board, and the orders of OBRE
shall be the record of the proceeding. At all hearings or
pre-hearing conferences, OBRE and the accused shall be
entitled to have a court reporter in attendance for purposes
of transcribing the proceeding or pre-hearing conference at
the expense of the party requesting the court reporter's
attendance. A copy of the transcribed proceeding shall be
available to the other party for the cost of a copy of the
transcript.
(j) The Board shall present to the Commissioner its
written report of its findings and recommendations. A copy
of the report shall be served upon the accused, either
personally or by certified mail as provided in this Act for
the service of the citation. Within 20 days after the
service, the accused may present to the Commissioner a motion
in writing for a rehearing that shall specify the particular
grounds therefor. If the accused shall order and pay for a
transcript of the record as provided in this Act, the time
elapsing thereafter and before the transcript is ready for
delivery to the accused shall not be counted as part of the
20 days. Whenever the Commissioner is satisfied that
substantial justice has not been done, the Commissioner may
order a rehearing by the Board or other special committee
appointed by the Commissioner or may remand the matter to the
Board for their reconsideration of the matter based on the
pleadings and evidence presented to the Board. In all
instances, under this Act, in which the Board has rendered a
recommendation to the Commissioner with respect to a
particular licensee or applicant, the Commissioner shall, in
the event that he or she disagrees with or takes action
contrary to the recommendation of the Board, file with the
Board and the Secretary of State his specific written reasons
of disagreement with the Board. The reasons shall be filed
within 60 days of the Board's recommendation to the
Commissioner and prior to any contrary action. At the
expiration of the time specified for filing a motion for a
rehearing, the Commissioner shall have the right to take the
action recommended by the Board. Upon the suspension or
revocation of a license, the licensee shall be required to
surrender his or her license to OBRE, and upon failure or
refusal to do so, OBRE shall have the right to seize the
license.
(k) At any time after the suspension or revocation of
any license, OBRE may restore it to the accused without
examination, upon the written recommendation of the Board.
(l) An order of revocation or suspension or a certified
copy thereof, over the seal of OBRE and purporting to be
signed by the Commissioner, shall be prima facie proof that:
(1) The signature is the genuine signature of the
Commissioner.
(2) The Commissioner is duly appointed and
qualified.
(3) The Board and the members thereof are
qualified.
Such proof may be rebutted.
(m) Notwithstanding any provisions concerning the
conduct of hearings and recommendations for disciplinary
actions, OBRE as directed by the Commissioner has the
authority to negotiate agreements with licensees and
applicants resulting in disciplinary consent orders. These
consent orders may provide for any of the forms of discipline
provided in this Act. These consent orders shall provide
that they were not entered into as a result of any coercion
by OBRE. Any such consent order shall be filed with the
Commissioner along with the Board's recommendation and
accepted or rejected by the Commissioner within 60 days of
the Board's recommendation.
Section 20-65. Temporary suspension. The Commissioner
may temporarily suspend the license of a licensee without a
hearing, simultaneously with the institution of proceedings
for a hearing provided for in Section 20-60 of this Act, if
the Commissioner finds that the evidence indicates that the
public interest, safety, or welfare imperatively requires
emergency action. In the event that the Commissioner
temporarily suspends the license without a hearing before the
Board, a hearing shall be held within 30 days after the
suspension has occurred. The suspended licensee may seek a
continuance of the hearing during which the suspension shall
remain in effect. The proceeding shall be concluded without
appreciable delay.
Section 20-70. Restoration of license. At any time
after the suspension, revocation, placement on probationary
status, or other disciplinary action taken under this Act
with reference to any license, OBRE may restore the license
to the licensee without examination, upon the written
recommendation of the Board.
Section 20-75. Administrative Review Law; certification
fee; summary report of final disciplinary actions. All final
administrative decisions of OBRE shall be subject to judicial
review pursuant to the provisions of the Administrative
Review Law and the rules adopted pursuant thereto. The term
"administrative decision" is defined in Section 3-101 of the
Administrative Review Law. OBRE shall not be required to
certify any record or file any answer or otherwise appear
unless the party filing the complaint pays to OBRE the
certification fee provided for by rule representing costs of
the certification. Failure on the part of the plaintiff to
make such a deposit shall be grounds for dismissal of the
action. OBRE shall prepare from time to time, but in no event
less often than once every other month, a summary report of
final disciplinary actions taken since the previous summary
report. The summary report shall contain a brief description
of the action that brought about the discipline and the final
disciplinary action taken. The summary report shall be made
available upon request.
Section 20-80. Penalties; injunction. Any person
violating any provision of this Act other than subdivision
(4) of subsection (h) of Section 20-20 and other than Section
5-15 or any person failing to account for or to remit any
moneys coming into his or her possession that belong to
others or commingling the money or other property of his or
her principal with his or her own, upon conviction for the
first offense, is guilty of a Class C misdemeanor, and if a
limited liability company, registered limited liability
partnership, or corporation, is guilty of a business offense
and shall be fined not to exceed $2,000. Upon conviction of a
second or subsequent offense the violator, if an individual,
is guilty of a Class A misdemeanor, and if a limited
liability company, registered limited liability partnership,
or corporation, is guilty of a business offense and shall be
fined not less than $2,000 nor more than $5,000. Any person,
limited liability company, registered limited liability
partnership, or corporation violating any provision of
Section 5-15 of this Act, upon conviction for the first
offense, if an individual, is guilty of a Class A
misdemeanor, and if a limited liability company, registered
limited liability partnership, or corporation, is guilty of a
business offense and shall be fined not to exceed $10,000.
Upon conviction of a second or subsequent offense the
violator, if an individual, is guilty of a Class 4 felony,
and if a limited liability company, registered limited
liability partnership, or corporation, is guilty of a
business offense and shall be fined not less than $10,000 nor
more than $25,000. Any officer or agent of a corporation or
member or agent of a partnership, limited liability company,
or registered limited liability partnership who shall
personally participate in or be an accessory to any violation
of this Act by the corporation, limited liability company,
registered limited liability partnership, or partnership
shall be subject to the penalties herein prescribed for
individuals, and the State's Attorney of the county where the
offense is committed shall prosecute all persons violating
the provisions of this Act upon proper complaint being made.
All fines and penalties shall be deposited in the Real Estate
Recovery Fund in the State Treasury. OBRE shall have the duty
and the right on behalf of the People of the State of
Illinois to originate injunction proceedings against any
person acting or purporting to act as a licensee without a
license issued under the provisions of this Act. OBRE shall
also have the duty and the right on behalf of the People of
the State of Illinois to originate injunction proceedings
against any licensee to enjoin acts by the licensee that
constitute violations of this Act.
Section 20-85. Recovery from Real Estate Recovery Fund.
OBRE shall maintain a Real Estate Recovery Fund from which
any person aggrieved by an act, representation, transaction,
or conduct of a licensee or unlicensed employee of a licensee
that is in violation of this Act or the rules promulgated
pursuant thereto, constitutes embezzlement of money or
property, or results in money or property being unlawfully
obtained from any person by false pretenses, artifice,
trickery, or forgery or by reason of any fraud,
misrepresentation, discrimination, or deceit by or on the
part of any such licensee or the unlicensed employee of a
licensee and that results in a loss of actual cash money, as
opposed to losses in market value, may recover. The aggrieved
person may recover, by order of the circuit court of the
county where the violation occurred, an amount of not more
than $10,000 from the Fund for damages sustained by the act,
representation, transaction, or conduct, together with costs
of suit and attorney's fees incurred in connection therewith
of not to exceed 15% of the amount of the recovery ordered
paid from the Fund. However, no licensed broker or
salesperson may recover from the Fund unless the court finds
that the person suffered a loss resulting from intentional
misconduct. The court order shall not include interest on
the judgment. The maximum liability against the Fund arising
out of any one act shall be as provided in this Section, and
the judgment order shall spread the award equitably among all
co-owners or otherwise aggrieved persons, if any. The maximum
liability against the Fund arising out of the activities of
any one licensee or one unlicensed employee of a licensee,
since January 1, 1974, shall be $50,000. Nothing in this
Section shall be construed to authorize recovery from the
Fund unless the loss of the aggrieved person results from an
act or omission of a licensed broker, salesperson, or
unlicensed employee who was at the time of the act or
omission acting in such capacity or was apparently acting in
such capacity and unless the aggrieved person has obtained a
valid judgment as provided in Section 20-90 of this Act. No
person aggrieved by an act, representation, or transaction
that is in violation of the Illinois Real Estate Time-Share
Act or the Land Sales Registration Act of 1989 may recover
from the Fund.
Section 20-90. Collection from Real Estate Recovery
Fund; procedure.
(a) No action for a judgment that subsequently results
in an order for collection from the Real Estate Recovery Fund
shall be started later than 2 years after the date on which
the aggrieved person knew, or through the use of reasonable
diligence should have known, of the acts or omissions giving
rise to a right of recovery from the Real Estate Recovery
Fund.
(b) When any aggrieved person commences action for a
judgment that may result in collection from the Real Estate
Recovery Fund, the aggrieved person must name as parties
defendant to that action any and all individual real estate
brokers, real estate salespersons, or their employees who
allegedly committed or are responsible for acts or omissions
giving rise to a right of recovery from the Real Estate
Recovery Fund. Failure to name as parties defendant such
individual brokers, salespersons, or their employees shall
preclude recovery from the Real Estate Recovery Fund of any
portion of any judgment received in such an action. The
aggrieved party may also name as additional parties defendant
any corporations, limited liability companies, partnerships,
registered limited liability partnership, or other business
associations that may be responsible for acts giving rise to
a right of recovery from the Real Estate Recovery Fund.
(c) When any aggrieved person commences action for a
judgment that may result in collection from the Real Estate
Recovery Fund, the aggrieved person must notify OBRE in
writing to this effect within 7 days of the commencement of
the action. Failure to so notify OBRE shall preclude
recovery from the Real Estate Recovery Fund of any portion of
any judgment received in such an action. After receiving
notice of the commencement of such an action, OBRE upon
timely application shall be permitted to intervene as a party
defendant to that action.
(d) When any aggrieved person commences action for a
judgment that may result in collection from the Real Estate
Recovery Fund, and the aggrieved person is unable to obtain
legal and proper service upon the defendant under the
provisions of Illinois law concerning service of process in
civil actions, the aggrieved person may petition the court
where the action to obtain judgment was begun for an order to
allow service of legal process on the Commissioner. Service
of process on the Commissioner shall be taken and held in
that court to be as valid and binding as if due service had
been made upon the defendant. In case any process mentioned
in this Section