208 1997 Session Laws of Kansas Ch. 65
An Act concerning real estate; relating to the brokerage
relationships in real estate trans-
actions act; amending K.S.A. 17-2707, 58-3045 and 58-3063 and
K.S.A. 1996 Supp.
58-3036, 58-3037, 58-3039, 58-3042 and 58-3046a and repealing the
existing sections;
reviving K.S.A. 1996 Supp. 58-3035, 58-3050, 58-3062, 58-3064,
58-3065, 58-3068,
58-30,101, 58-30,102, 58-30,103, 58-30,104, 58-30,105, 58-30,106,
58-30,107, 58-
30,108, 58-30,109, 58-30,110, 58-30,111, 58-30,112 and 74-4202;
amending K.S.A. 1996
Supp. 58-3035, as revived by section 3 of this act, 58-3050, as
revived by section 11 of
this act, 58-3062, as revived by section 13 of this act, 58-3064,
as revived by section 16
of this act, 58-3065, as revived by section 18 of this act,
58-3068, as revived by section
20 of this act, 58-30,101, as revived and amended by section 22 of
this act, 58-30,102,
as revived by section 24 of this act, 58-30,103, as revived by
section 26 of this act, 58-
30,104, as revived by section 28 of this act, 58-30,105, as revived
by section 30 of this
act, 58-30,106, as revived by section 32 of this act, 58-30,107, as
revived by section 34
of this act, 58-30,109, as revived by section 37 of this act,
58-30,110, as revived by section
Ch. 65 1997 Session Laws of Kansas 209
-39 of this act, 58-30,111, as revived by section 41 of this
act, 58-30,112, as revived by
section 43 of this act, and 74-4202, as revived by section 45 of
this act, and repealing
the existing sections; also repealing K.S.A. 1995 Supp. 58-3035, as
amended by section
20 of chapter 212 of the 1996 Session Laws of Kansas, 58-3050, as
amended by section
12 of chapter 212 of the 1996 Session Laws of Kansas, 58-3062, as
amended by section
13 of chapter 212 of the 1996 Session Laws of Kansas, 58-3064, as
amended by section
14 of chapter 212 of the 1996 Session Laws of Kansas, 58-3065, as
amended by section
15 of chapter 212 of the 1996 Session Laws of Kansas, 58-3068, as
amended by section
16 of chapter 212 of the 1996 Session Laws of Kansas, 74-4202, as
amended by section
17 of chapter 212 of the 1996 Session Laws of Kansas and K.S.A.
1996 Supp. 58-30,108,
as revived by section 36 of this act and 74-4209.
Be it enacted by the Legislature of the State of
Kansas:
New Section 1. On and after October 1, 1997:
(a) A broker engaged as a transaction broker is not an agent for
either
party.
(b) A transaction broker shall have the following obligations
and re-
sponsibilities:
(1) To perform the terms of any written or oral agreement made
with
any party to the transaction;
(2) to exercise reasonable skill and care as a transaction
broker, in-
cluding, but not limited to:
(A) Presenting all offers and counteroffers in a timely manner,
even
when the property is subject to a contract of sale;
(B) advising the parties regarding the transaction and
suggesting that
such parties obtain expert advice as to material matters about
which the
transaction broker knows but the specifics of which are beyond the
ex-
pertise of the licensee;
(C) accounting in a timely manner for all money and property
re-
ceived;
(D) keeping the parties fully informed regarding the
transaction;
(E) assisting the parties in complying with the terms and
conditions
of any contract including closing the transaction;
(F) disclosing to all prospective buyers or tenants all adverse
material
facts actually known by the transaction broker, including but not
limited
to:
(i) Any environmental hazards affecting the property which are
re-
quired by law to be disclosed;
(ii) the physical condition of the property;
(iii) any material defects in the property;
(iv) any material defects in the title to the property;
or
(v) any material limitation on the seller's or landlord's
ability to per-
form under the terms of the contract; and
(G) disclosing to any prospective seller or landlord all adverse
ma-
terial facts actually known by the transaction broker, including
but not
limited to material facts concerning the buyer's or tenant's
financial ability
to perform the terms of the transaction;
210 1997 Session Laws of Kansas Ch. 65
(3) comply with all requirements of this act and rules and
regulations
adopted hereunder; and
(4) comply with any applicable federal, state and local laws,
rules and
regulations and ordinances, including fair housing and civil rights
and
rules and regulations.
(c) Except as provided in subsection (d), the transaction broker
is not
required to disclose to any party to the transaction information
relating
to the physical condition of the property if a written report
regarding the
physical condition of the property has been prepared by a qualified
third
party and provided to the party.
(d) A transaction broker shall disclose to the party any facts
actually
known by the transaction broker that were omitted from or
contradict
any information included in a written report described in
subsection (c).
(e) If pursuant to subsection (b)(2)(B), the transaction broker
advised
the parties to obtain expert advice as to material matters about
which the
transaction broker knows but the specifics of which are beyond the
ex-
pertise of the transaction broker, no cause of action for any
person shall
arise against the transaction broker pertaining to such material
matters.
(f) In any transaction regarding the sale or lease of real
estate other
than commercial property or residential property of more than four
units,
the following information shall not be disclosed by a transaction
broker
without the consent of all parties:
(1) That a buyer or tenant is willing to pay more than the
purchase
price or lease rate offered for the property;
(2) that a seller or landlord is willing to accept less than the
asking
price or lease rate for the property;
(3) what the motivating factors are for any party buying,
selling, or
leasing the property;
(4) that a seller, buyer, landlord or tenant will agree to
financing
terms other than those offered; or
(5) any information or personal confidences about a party to
the
transaction which might place the other party at an advantage over
the
party unless the disclosure is required by law or failure to
disclose such
information would constitute fraudulent misrepresentation.
(g) (1) Except as provided in subsection (g)(2), in any
transaction
regarding the sale or lease of commercial property or residential
property
of more than four units, the following information may be disclosed
by a
transaction broker unless prohibited by the parties:
(A) That a buyer or tenant is willing to pay more than the
purchase
price or lease rate offered for the property;
(B) that a seller or landlord is willing to accept less than the
asking
price or lease rate for the property;
(C) what the motivating factors are for any party buying,
selling or
leasing the property; or
Ch. 65 1997 Session Laws of Kansas 211
(D) that a seller, buyer, landlord or tenant will agree to
financing
terms other than those offered.
(2) Any information or personal confidences about a party to
the
transaction which might place the other party at an advantage over
the
party shall not be disclosed unless the disclosure is required by
law or
failure to disclose such information would constitute fraudulent
misrep-
resentation.
(h) A transaction broker has no duty to conduct an independent
in-
spection of the property for the benefit of any party to the
transaction
and has no duty to independently verify the accuracy or
completeness of
statements made by the seller, landlord, buyer, tenant or qualified
third
party inspectors.
(i) A transaction broker has no duty to conduct an independent
in-
vestigation of the buyer's or tenant's financial condition or to
verify the
accuracy or completeness of any statement made by the buyer or
tenant.
(j) A transaction broker may do the following without breaching
any
obligation or responsibility:
(1) Show alternative properties not owned by the seller or
landlord
to a prospective buyer or tenant;
(2) list competing properties for sale or lease;
(3) show properties in which the buyer or tenant is interested
to other
prospective buyers or tenants; and
(4) serve as a single agent or subagent for the same or for
different
parties in other real estate transactions.
(k) Information known to a transaction broker shall not be
imputed
to any party to the transaction or to any licensee within the
brokerage
firm engaged as a transaction broker.
(l) A transaction broker may cooperate with other brokers or
coop-
erate and pay compensation to other brokers but shall not engage
any
subagents.
Sec. 2. On and after October 1, 1997, K.S.A. 17-2707 is
hereby
amended to read as follows: 17-2707. As used in this act, unless
the con-
text clearly indicates that a different meaning is intended, the
following
words mean:
(a) ``Professional corporation,'' a corporation organized under
this act.
(b) ``Professional service,'' the type of personal service
rendered by a
person duly licensed by this state as a member of any of the
following
professions, each paragraph constituting one type:
(1) A certified public accountant;
(2) An architect;
(3) An attorney-at-law;
(4) A chiropractor;
(5) A dentist;
(6) An engineer;
212 1997 Session Laws of Kansas Ch. 65
(7) An optometrist;
(8) An osteopathic physician or surgeon;
(9) A physician, surgeon or doctor of medicine;
(10) A veterinarian;
(11) A podiatrist;
(12) A pharmacist;
(13) A land surveyor;
(14) A licensed psychologist;
(15) A specialist in clinical social work;
(16) A registered physical therapist;
(17) A landscape architect;
(18) A registered professional nurse;
(19) A real estate broker or salesperson.
(c) ``Regulating board,'' the board or state agency which is
charged
with the licensing and regulation of the practice of the profession
which
the professional corporation is organized to render.
(d) ``Qualified person'':
(1) Any natural person licensed to practice the same type of
profes-
sion which any professional corporation is authorized to
practice;
(2) the trustee of a trust which is a qualified trust under
subsection
(a) of section 401 of the internal revenue code of 1954, as
amended, or
of a contribution plan which is a qualified employee stock
ownership plan
under subsection (a) of section 409A of the internal revenue code
of 1954,
as amended; or
(3) the trustee of a revocable living trust established by a
natural
person who is licensed to practice the type of profession which any
pro-
fessional corporation is authorized to practice, if the terms of
such trust
provide that such natural person is the principal beneficiary and
sole
trustee of such trust and such trust does not continue to hold
title to
professional corporation stock following such natural person's
death for
more than a reasonable period of time necessary to dispose of such
stock.
Sec. 3. On and after July 1, 1997, K.S.A. 1996 Supp. 58-3035
is
hereby revived to read as follows: 58-3035. As used in this act,
unless the
context otherwise requires:
(a) ``Advance listing fee'' means any fee charged for services
related
to promoting the sale or lease of real estate and paid in advance
of the
rendering of such services, including any fees charged for listing,
adver-
tising or offering for sale or lease any real estate, but excluding
any fees
paid solely for advertisement or for listing in a publication
issued for the
sole purpose of promoting the sale or lease of real estate wherein
inquiries
are directed to the owner of the real estate or to real estate
brokers and
not to unlicensed persons who publish the listing.
(b) ``Agency agreement'' means a written agreement between
the
Ch. 65 1997 Session Laws of Kansas 213
principal and the licensee setting forth the terms and
conditions of the
relationship.
(c) ``Associate broker'' means an individual who has a broker's
license
and who is employed by another broker or is associated with
another
broker as an independent contractor and participates in any
activity de-
scribed in subsection (f).
(d) ``Branch broker'' means an individual who has a broker's
license
and who has been designated to supervise a branch office and the
activ-
ities of salespersons and associate brokers assigned to the branch
office.
(e) ``Branch office'' means a place of business other than the
principal
place of business of a broker.
(f) ``Broker'' means an individual, other than a salesperson,
who ad-
vertises or represents that such individual engages in the business
of buy-
ing, selling, exchanging or leasing real estate or who, for
compensation,
engages in any of the following activities as an employee of, or on
behalf
of, the owner, purchaser, lessor or lessee of real estate:
(1) Sells, exchanges, purchases or leases real estate.
(2) Offers to sell, exchange, purchase or lease real
estate.
(3) Negotiates or offers, attempts or agrees to negotiate the
sale,
exchange, purchase or leasing of real estate.
(4) Lists or offers, attempts or agrees to list real estate for
sale, lease
or exchange.
(5) Auctions or offers, attempts or agrees to auction real
estate or
assists an auctioneer by procuring bids at a real estate
auction.
(6) Buys, sells, offers to buy or sell or otherwise deals in
options on
real estate.
(7) Assists or directs in the procuring of prospects calculated
to result
in the sale, exchange or lease of real estate.
(8) Assists in or directs the negotiation of any transaction
calculated
or intended to result in the sale, exchange or lease of real
estate.
(9) Engages in the business of charging an advance listing
fee.
(10) Provides lists of real estate as being available for sale
or lease,
other than lists provided for the sole purpose of promoting the
sale or
lease of real estate wherein inquiries are directed to the owner of
the real
estate or to real estate brokers and not to unlicensed persons who
publish
the list.
(g) ``Commercial or investment real estate property'' means any
real
estate for which the present or intended use is other than one to
four
residential units.
(h) ``Commission'' means the Kansas real estate
commission.
(i) ``Lease'' means rent or lease for nonresidential
use.
(j) ``Licensee'' means any person licensed under this act as a
broker
or salesperson.
(k) ``Office'' means a broker's place of business, where records
may
214 1997 Session Laws of Kansas Ch. 65
be maintained and licenses displayed, whether or not it is the
broker's
principal place of business.
(l) ``Person'' means any individual or any foreign or domestic
corpo-
ration, partnership or association.
(m) ``Real estate'' means any interest or estate in land,
including any
leasehold or condominium, whether corporeal, incorporeal, freehold
or
nonfreehold and whether the real estate is situated in this state
or else-
where, but does not include oil and gas leases, royalties and other
mineral
interests, and rights of way and easements acquired for the purpose
of
constructing roadways, pipelines, conduits, wires and facilities
related to
these types of improvement projects for private and public
utilities, mu-
nicipalities, federal and state governments, or any political
subdivision.
For purpose of this act, any rights of redemption are considered to
be an
interest in real estate.
(n) ``Salesperson'' means an individual, other than an associate
bro-
ker, who is employed by a broker or is associated with a broker as
an
independent contractor and participates in any activity described
in sub-
section (f).
(o) ``Supervising broker'' means an individual, other than a
branch
broker, who has a broker's license and who has been designated as
the
broker who is responsible for the supervision of the primary office
of a
broker and the activities of salespersons and associate brokers who
are
assigned to such office and all of whom are licensed pursuant to
subsec-
tion (b) of K.S.A. 58-3042 and amendments thereto. ``Supervising
broker''
also means a broker who operates a sole proprietorship and with
whom
associate brokers or salespersons are affiliated as employees or
independ-
ent contractors.
Sec. 4. On and after October 1, 1997, K.S.A. 1996 Supp. 58-3035,
as
revived by section 3 of this act, is hereby amended to read as
follows: 58-
3035. As used in this act, unless the context otherwise
requires:
(a) ``Advance listing fee'' means any fee charged for services
related
to promoting the sale or lease of real estate and paid in advance
of the
rendering of such services, including any fees charged for listing,
adver-
tising or offering for sale or lease any real estate, but excluding
any fees
paid solely for advertisement or for listing in a publication
issued for the
sole purpose of promoting the sale or lease of real estate wherein
inquiries
are directed to the owner of the real estate or to real estate
brokers and
not to unlicensed persons who publish the listing.
(b) ``Agency agreement'' means a written agreement
between the
principal and the licensee setting forth the terms and conditions
of the
relationship.
(c) ``Associate broker'' means an individual
who has a broker's license
and who is employed by another broker or is associated with
another
Ch. 65 1997 Session Laws of Kansas 215
broker as an independent contractor and participates in any
activity de-
scribed in subsection (f) (e).
(d) (c) ``Branch broker'' means an
individual who has a broker's li-
cense and who has been designated to supervise a branch office and
the
activities of salespersons and associate brokers assigned to the
branch
office.
(e) (d) ``Branch office'' means a place
of business other than the prin-
cipal place of business of a broker.
(f) (e) ``Broker'' means an individual,
other than a salesperson, who
advertises or represents that such individual engages in the
business of
buying, selling, exchanging or leasing real estate or who, for
compensa-
tion, engages in any of the following activities as an employee of,
or on
behalf of, the owner, purchaser, lessor or lessee of real
estate:
(1) Sells, exchanges, purchases or leases real estate.
(2) Offers to sell, exchange, purchase or lease real
estate.
(3) Negotiates or offers, attempts or agrees to negotiate the
sale,
exchange, purchase or leasing of real estate.
(4) Lists or offers, attempts or agrees to list real estate for
sale, lease
or exchange.
(5) Auctions or offers, attempts or agrees to auction real
estate or
assists an auctioneer by procuring bids at a real estate
auction.
(6) Buys, sells, offers to buy or sell or otherwise deals in
options on
real estate.
(7) Assists or directs in the procuring of prospects calculated
to result
in the sale, exchange or lease of real estate.
(8) Assists in or directs the negotiation of any transaction
calculated
or intended to result in the sale, exchange or lease of real
estate.
(9) Engages in the business of charging an advance listing
fee.
(10) Provides lists of real estate as being available for sale
or lease,
other than lists provided for the sole purpose of promoting the
sale or
lease of real estate wherein inquiries are directed to the owner of
the real
estate or to real estate brokers and not to unlicensed persons who
publish
the list.
(g) ``Commercial or investment real estate property''
means any real
estate for which the present or intended use is other than one to
four
residential units.
(h) (f) ``Commission'' means the Kansas
real estate commission.
(i) (g) ``Lease'' means rent or lease
for nonresidential use.
(j) (h) ``Licensee'' means any person
licensed under this act as a bro-
ker or salesperson.
(k) (i) ``Office'' means a broker's
place of business, where records may
be maintained and licenses displayed, whether or not it is the
broker's
principal place of business.
(l) (j) ``Person'' means any individual
or any foreign or domestic cor-
poration, partnership or association.
216 1997 Session Laws of Kansas Ch. 65
(m) (k) ``Real estate'' means any
interest or estate in land, including
any leasehold or condominium, whether corporeal, incorporeal,
freehold
or nonfreehold and whether the real estate is situated in this
state or
elsewhere, but does not include oil and gas leases, royalties and
other
mineral interests, and rights of way and easements acquired for the
pur-
pose of constructing roadways, pipelines, conduits, wires and
facilities
related to these types of improvement projects for private and
public
utilities, municipalities, federal and state governments, or any
political
subdivision. For purpose of this act, any rights of redemption are
consid-
ered to be an interest in real estate.
(n) (l) ``Salesperson'' means an
individual, other than an associate bro-
ker, who is employed by a broker or is associated with a broker as
an
independent contractor and participates in any activity described
in sub-
section (f) (e).
(o) (m) ``Supervising broker'' means an
individual, other than a
branch broker, who has a broker's license and who has been
designated
as the broker who is responsible for the supervision of the primary
office
of a broker and the activities of salespersons and associate
brokers who
are assigned to such office and all of whom are licensed pursuant
to
subsection (b) of K.S.A. 58-3042 and amendments thereto.
``Supervising
broker'' also means a broker who operates a sole proprietorship and
with
whom associate brokers or salespersons are affiliated as employees
or
independent contractors.
Sec. 5. On and after October 1, 1997, K.S.A. 1996 Supp. 58-3036
is
hereby amended to read as follows: 58-3036. Unless exempt from this
act
under K.S.A. 58-3037 and amendments thereto, no person
shall:
(a) Directly or indirectly engage in or conduct or represent
that such
person engages in or conducts the business of a broker, associate
broker
or salesperson within this state unless such person is licensed as
such a
broker, associate broker or salesperson in accordance with this
act.
(b) Directly or indirectly act or represent that such person
acts as a
broker, associate broker or salesperson within this state unless
such per-
son is licensed as such a broker, associate broker or salesperson
in accor-
dance with this act.
(c) Perform or offer, attempt or agree to perform any act
described
in subsection (f) (e) of K.S.A. 58-3035 and
amendments thereto, whether
as a part of a transaction or as an entire transaction, unless such
person
is licensed pursuant to this act.
Sec. 6. On and after October 1, 1997, K.S.A. 1996 Supp. 58-3037
is
hereby amended to read as follows: 58-3037. The provisions of this
act
shall not apply to:
(a) Any person, other than a person licensed under this act, who
di-
rectly performs any of the acts within the scope of this act with
reference
to such person's own property.
Ch. 65 1997 Session Laws of Kansas 217
(b) Any person who directly performs any of the acts within the
scope
of this act with reference to property that such person is
authorized to
transfer in any way by a power of attorney from the owner, provided
that
such person receives no commission or other compensation, direct
or
indirect, for performing any such act.
(c) Services rendered by an attorney licensed to practice in
this state
in performing such attorney's professional duties as an
attorney.
(d) Any person acting as receiver, trustee in bankruptcy,
administra-
tor, executor or guardian, or while acting under a court order or
under
the authority of a will or a trust instrument or as a witness in
any judicial
proceeding or other proceeding conducted by the state or any
govern-
mental subdivision or agency.
(e) Any officer or employee of the federal or state government,
or
any political subdivision or agency thereof, when performing the
official
duties of the officer or employee.
(f) Any multiple listing service wholly owned by a nonprofit
organi-
zation or association of brokers.
(g) Any nonprofit referral system or organization of brokers
formed
for the purpose of referral of prospects for the sale or listing of
real estate.
(h) Railroads or other public utilities regulated by the state
of Kansas,
or their subsidiaries, affiliated corporations, officers or regular
employees,
unless performance of any of the acts described in subsection
(f) (e) of
K.S.A. 58-3035 and amendments thereto is in connection with the
sale,
purchase, lease or other disposition of real estate or investment
therein
unrelated to the principal business activity of such railroad or
other public
utility or affiliated or subsidiary corporation thereof.
(i) The sale or lease of real estate by an employee of a
corporation
which owns or leases such real estate, if such employee owns not
less
than 5% of the stock of such corporation.
(j) The sale or lease of new homes by a person, partnership,
associ-
ation or domestic corporation who constructed such homes, but the
pro-
visions of this act shall apply to the sale or lease of any such
homes by
any employee of such person, partnership or association or by any
em-
ployee of such corporation who owns less than 5% of the stock of
such
corporation.
(k) The lease of real estate for agricultural purposes.
Sec. 7. On and after October 1, 1997, K.S.A. 1996 Supp. 58-3039
is
hereby amended to read as follows: 58-3039. (a) Any person desiring
to
act as a broker or salesperson must file a written application for
a license
with the commission or, if required by the commission, with the
testing
service designated by the commission. The application shall be in
such
form and detail as the commission shall prescribe and shall be
accom-
panied by the appropriate application and license
fees prescribed by
K.S.A. 58-3063, and amendments thereto.
218 1997 Session Laws of Kansas Ch. 65
(b) A license to engage in business as a broker or salesperson
shall
be granted only to a person who is 18 or more years of age and who
has
a high school diploma or its equivalent.
(c) In addition to the requirements of subsection (b), except
as pro-
vided in subsection (d), each applicant for an original license
as a broker
shall have been:
(1) Licensed as a salesperson in this state or as a salesperson
or broker
in another state, and shall have been actively engaged in any of
the activ-
ities described in subsection (f) (e) of
K.S.A. 58-3035 and amendments
thereto for a period of at least two years during the five years
immediately
preceding the date of the application for a license; or
(2) if an applicant resides in a county that according to the
1994
estimates of the U.S. bureau of the census has a population of
20,000 or
less, the commission may, upon a finding that such county suffers
from
a shortage of brokers and upon compelling evidence of need, waive
or
alter the requirements of this subsection. The commission shall
adopt
rules and regulations to establish alternative licensing criteria
for such
applicants.
(d) The commission may accept proof of experience in the
real estate
or a related business or a combination of such experience and
education
which the commission believes qualifies the applicant to act as a
broker
as being equivalent to all or part of the experience required by
subsection
(c).
(d) (e) Except as provided in K.S.A.
58-3040 and amendments
thereto, each applicant for an original license shall be required
to pass a
written examination covering generally the matters confronting
brokers
or salespersons, and no license shall be issued on the basis of
such an
examination either or both sections of which were administered
more
than four months prior to the date that the applicant's application
is filed
with the commission. The examination may be given by the
commission
or any person designated by the commission. Each person taking
the
examination shall pay the examination fee prescribed pursuant to
K.S.A.
58-3063 and amendments thereto, which fee the commission may
require
to be paid to it or directly to the testing service designated by
the com-
mission. The examination for a broker's license shall be different
from or
in addition to that for a salesperson's license.
(f) (1) On and after October 1, 1997, each applicant for an
original
salesperson's license who meets the requirements of this act shall
be issued
a temporary salesperson's license which shall expire six months
after the
last calendar day of the month in which the license was issued, on
the last
calendar day of that month.
(2) No later than 10 days prior to the expiration date of a
temporary
salesperson's license, the salesperson shall file an application on
a form
provided by the commission. The application shall be accompanied by
the
license fee prescribed by K.S.A. 58-3063 and amendments thereto
and
Ch. 65 1997 Session Laws of Kansas 219
evidence of compliance with the requirements of subsection
(f)(1) of K.S.A.
58-3046a, and amendments thereto. The commission shall issue a
sales-
person's license to a person who complies with the provisions of
this par-
agraph. The issuance date of the salesperson's license shall be the
day
following the expiration date of the temporary license. The
expiration date
of the license shall be determined in accordance with a schedule
estab-
lished by rules and regulations of the commission.
(3) Failure to comply with the provisions of paragraph (2)
shall au-
tomatically cancel the temporary license on its expiration
date.
(4) A person whose temporary salesperson's license was
canceled pur-
suant to paragraph (3) may apply for a salesperson's license
provided
such application, the license fee prescribed by K.S.A. 58-3063 and
amend-
ments thereto, and evidence of attendance of 30 hours of
instruction re-
ceived after issuance of the temporary license pursuant to
subsection (f)(1)
of K.S.A. 58-3046a, and amendments thereto are received by the
com-
mission within three months after the expiration date of the
temporary
license. The commission shall issue a salesperson's license to a
person who
complies with the provisions of this paragraph. The expiration date
of the
license shall be determined in accordance with a schedule
established by
rules and regulations of the commission.
(e) (g) The commission, prior to
granting an original license, shall
require proof that the applicant has a good reputation for honesty,
trust-
worthiness, integrity and competence to transact the business of
broker
or salesperson in such manner as to safeguard the public
interest.
(f) (h) An application for an original
license as a salesperson shall be
accompanied by the recommendation of the broker with whom the
sa-
lesperson is to be associated, or by whom the salesperson is to be
em-
ployed, certifying that the applicant is honest, trustworthy and of
good
reputation.
Sec. 8. On and after October 1, 1997, K.S.A. 1996 Supp. 58-3042
is
hereby amended to read as follows: 58-3042. (a) No real estate
license
shall give authority to any person other than the person to whom
the
license is issued.
(b) No license shall be granted to a corporation, partnership,
associ-
ation or limited liability company. Each person who is an officer
of a
corporation or a member of a partnership, association or limited
liability
company and who performs any act described in subsection
(f) (e) of
K.S.A. 58-3035 and amendments thereto shall be a licensed
broker, and
each person who is employed by or associated with a corporation,
part-
nership, association or limited liability company and who performs
any
act described in subsection (f) (e) of
K.S.A. 58-3035 and amendments
thereto shall be a licensed broker or licensed salesperson.
Sec. 9. On and after October 1, 1997, K.S.A. 58-3045 is
hereby
amended to read as follows: 58-3045. (a) Except for a temporary
sales-
220 1997 Session Laws of Kansas Ch. 65
person's license issued pursuant to subsection (f) of K.S.A.
58-3039, and
amendments thereto, each license issued or renewed by the
commission
shall expire on a date determined in accordance with a schedule
estab-
lished by rules and regulations of the commission, which date shall
be
not more than two years from the date of issuance or renewal.
Except as
otherwise provided by this act, applicants for issuance or renewal
of a
license must satisfy all applicable requirements prior to issuance
or re-
newal of the license.
(b) (1) Except for a temporary salesperson's license issued
pursuant
to subsection (f) of K.S.A. 58-3039, and amendments thereto,
each license
shall be renewable upon the filing, not less than 30 days
prior to the of a renewal application
on or before the
expiration date of the license,
renewal date, which is the last calendar day of the month preceding
the
license expiration date. Such application shall be made on a
form provided
by the commission and accompanied by (A) the
required renewal fee
prescribed by K.S.A. 58-3063, and amendments thereto, and
(B) evidence
of compliance with the requirements of K.S.A. 58-3046a and
amend-
ments thereto. In each case in which a license is issued or
renewed for a or the
licensee's license
period of other than one year, the commission shall compute to the
near-
est whole month the required fee, based on annual renewal fee
provided
for by K.S.A. 58-3063 and amendments thereto.
with the licensee's request that the license be deactivated on the
renewal
date pursuant to K.S.A. 58-3049, and amendments
thereto.
(2) Failure to remit the required fee when
due comply with para-
graph (1) on or before the renewal date will automatically
cancel the
license, except that any on the license
expiration date unless the license is
renewed pursuant to subsection (c) prior to the expiration
date.
(c) Any licensee who fails to pay the required
renewal fee when duefailed to comply with the
requirements of subsection (b)(1), may have the
licensee's license reinstated and renewed by the payment of the
required
renewal fee prescribed by K.S.A. 58-3063, and amendments
thereto, and
a late fee of $50, if such fees are remitted to the commission not
later
than six months following the expiration date of such license
and accom-
panied by (1) an application for late renewal obtained from the
commis-
sion, and (2) evidence of compliance with the requirements of
K.S.A.
58-3046a and amendments thereto or a written request that the
licensee's
license be renewed on deactivated status pursuant to K.S.A. 58-3049
and
amendments thereto.
(c) (d) An application for renewal filed
in compliance with the
requirements of subsection (b) shall entitle the applicant to
continue op-
erating under the applicant's existing license after its specified
expiration
date, unless such license has been suspended or revoked and has not
been
reinstated or unless such license is restricted, until such time as
the com-
mission determines whether the application fulfills such
requirements.
Ch. 65 1997 Session Laws of Kansas 221
Sec. 10. On and after October 1, 1997, K.S.A. 1996 Supp.
58-3046a
is hereby amended to read as follows: 58-3046a. (a) Except as
provided
in K.S.A. 58-3040 and amendments thereto, any person who applies
for
an original license in this state as a salesperson shall submit
evidence,
satisfactory to the commission, of attendance of a principles of
real estate
course, of not less than 30 hours of instruction, approved by the
com-
mission and received within the 12 months immediately preceding
the
filing of application for salesperson's license. The commission may
require
the evidence to be furnished to the commission with the original
appli-
cation for license or it may require the applicant to furnish the
evidence
to the testing service designated by the commission as a
prerequisite to
taking the examination required by K.S.A. 58-3039 and
amendments
thereto. If the evidence is furnished to the testing service, the
instruction
shall have been received within 12 months immediately preceding
the
date of the examination.
(b) Except as provided in K.S.A. 58-3040 and amendments
thereto,
any person who applies for an original license in this state as a
broker
shall submit evidence, satisfactory to the commission, of
attendance of 24
hours of instruction, approved by the commission and received
within the
12 months immediately preceding the filing of application for
broker's
license. Such hours shall be in addition to any hours of
instruction used
to meet the requirements of subsection (c), (d)
or, (e) or (f). The com-
mission may require the evidence to be furnished to the commission
with
the original application for license, or it may require the
applicant to
furnish the evidence to the testing service designated by the
commission
as a prerequisite to taking the examination provided in K.S.A.
58-3039
and amendments thereto. If the evidence is furnished to the testing
serv-
ice, the instruction shall have been received within 12 months
immedi-
ately preceding the date of the examination.
(c) Except as provided in subsections (d)
and, (e) and (f), at or prior
to each renewal date established by the commission, any person who
is
licensed in this state as a broker or as a salesperson shall submit
evidence,
satisfactory to the commission, of attendance of not less than 12
hours of
additional instruction approved by the commission and received
during
the renewal period.
(d) Any person who obtained an original license in this state as
a
salesperson after July 1, 1988, and before July 1, 1991, shall
submit evi-
dence, satisfactory to the commission, of attendance of courses of
instruc-
tion approved by the commission at or prior to each renewal date
estab-
lished by the commission as follows:
(1) At or prior to the first license renewal, 50 hours of
instruction
received after the date of licensure. Such evidence shall not be
required
until the second license renewal if the original license expires
less than
six months after issuance.
222 1997 Session Laws of Kansas Ch. 65
(2) At or prior to each license renewal thereafter, 12 hours of
addi-
tional instruction received during the renewal period.
Any salesperson who obtains a broker's license in this state
prior to
completing the 50 hours of instruction required by this subsection
shall
submit the same evidence to renew the broker's license that would
have
been required to renew the salesperson's license.
(e) Any person who obtains an original license in this state as
a sa-
lesperson on or after July 1, 1991 and before October 1,
1997, shall submit
evidence, satisfactory to the commission, of attendance of courses
of in-
struction approved by the commission at or prior to each renewal
date
established by the commission as follows:
(1) At or prior to the first license renewal, 30 hours of
instruction
received after the date of licensure. Such evidence shall not be
required
until the second license renewal if the original license expires
less than
six months after issuance.
(2) At or prior to each license renewal thereafter, 12 hours of
addi-
tional instruction received during the renewal period.
Any salesperson who obtains a broker's license in this state
prior to
completing the 30 hours of instruction required by this subsection
shall
submit the same evidence to renew the broker's license that would
have
been required to renew the salesperson's license.
(f) The hours on record with the commission of any
person who ac- Any person who obtains a temporary license in
this state as a
cumulated hours of instruction which were reported to the
commission
by January 1, 1983, and who, on July 1, 1993, has more than 12
hours on
record shall be reduced by the commission to 12 hours. The 12
hours
which remain on the licensee's record on July 1, 1993, shall be
used to
meet the requirement of subsection (c) at the licensee's next
license re-
newal.
salesperson on and after October 1, 1997, shall submit evidence,
satisfac-
tory to the commission, of attendance of courses of instruction
approved
by the commission as follows:
(1) No later than ten days prior to the expiration date of
the tempo-
rary license, 30 hours of instruction received after the date of
licensure.
(2) At or prior to the first renewal of a license issued
pursuant to
subsection (f)(2) or (4) of K.S.A. 58-3039, and amendments thereto,
12
hours of additional instruction received during the renewal period.
Such
evidence shall not be required until the second license renewal if
the li-
cense expires less than six months after issuance.
(3) At or prior to each license renewal thereafter, 12 hours
of addi-
tional instruction received during the renewal period.
(g) Except for courses reviewed pursuant to subsection (j), on
and
after January 1, 1994, courses of instruction required by this
section shall
be courses approved by the commission and offered by:
(1) An institution which is accredited by the north central
association
of colleges and secondary schools accrediting agency;
Ch. 65 1997 Session Laws of Kansas 223
(2) an area vocational or vocational-technical school as defined
by
K.S.A. 72-4412 and amendments thereto;
(3) a proprietary school which has been issued a certificate of
ap-
proval pursuant to the Kansas proprietary school act;
(4) any agency of the state of Kansas; or
(5) a similar institution, approved by the commission, in
another state.
(h) The commission shall adopt rules and regulations to: (1)
Prescribe
minimum curricula and standards for all courses offered to fulfill
edu-
cation requirements of this act, (2) designate a course of study to
fulfill
any specific requirement, which may include requiring that
licensees pass
a test as prescribed by the commission for any course designated by
the
commission in rules and regulations as a mandatory core
requirement,
(3) prescribe minimum qualifications for instructors of approved
courses
and (4) establish standards and procedures for approval of courses
and
instructors, monitoring courses, advertising, registration and
maintenance
of records of courses, and withdrawal of approval of courses and
instruc-
tors.
(i) The commission may approve nontraditional courses
consisting
solely or primarily of home study, videotaped or computer-assisted
in-
struction. For the purpose of this section, attendance of one hour
of
instruction shall mean 50 minutes of classroom instruction or the
equiv-
alent thereof in nontraditional study as determined by the
commission.
(j) Courses of instruction required by this section shall be
courses
approved by the commission either before or after their completion.
The
commission may give credit toward the 12 hours of additional
instruction
required by subsection (c),(d), (e) or (f) to any
licensee who submits an
application for course review obtained from the commission and pays
the
fee prescribed by K.S.A. 58-3063 and amendments thereto if, in the
judg-
ment of the commission, the course meets the objectives of
continuing
education.
(k) The commission shall publish annually a list of educational
insti-
tutions and entities and the courses offered by them in this state
which
are approved by the commission.
(l) No license shall be issued or renewed unless the
applicable
requirements set forth in this section are met within the time
prescribed.
Sec. 11. On and after July 1, 1997, K.S.A. 1996 Supp. 58-3050
is
hereby revived to read as follows: 58-3050. (a) The license of any
licensee
may be revoked, suspended or restricted or a licensee may be
censured,
if:
(1) The commission finds that the license has been obtained by
false
or fraudulent representation or that the licensee has committed a
viola-
tion of this act or rules and regulations adopted hereunder, or the
bro-
kerage relationships in real estate transactions act or rules and
regulations
adopted thereunder as such act governs the sale or lease of real
estate
224 1997 Session Laws of Kansas Ch. 65
that is one to four residential units, whether the licensee
acted as an agent
or a principal in the real estate transaction;
(2) the licensee has entered a plea of guilty or nolo
contendere to, or
has been convicted of: (A) Forgery, embezzlement, obtaining money
un-
der false pretenses, larceny, extortion, conspiracy to defraud or
any other
similar offense; (B) a crime involving moral turpitude; or (C) any
felony
charge; or
(3) the licensee has been finally adjudicated and found to be
guilty
of violation of the federal fair housing act (42 U.S.C. 3601 et
seq.) or
K.S.A. 44-1015 through 44-1029, and amendments thereto.
(b) In addition to or in lieu of any other administrative, civil
or crim-
inal remedy provided by law, the commission, in accordance with
the
Kansas administrative procedure act and upon a finding that a
licensee
has violated a provision of this act or rules and regulations
adopted here-
under, or the brokerage relationships in real estate transactions
act or
rules and regulations adopted thereunder as such act governs the
sale or
lease of real estate that is one to four residential units, may
impose on
such licensee a civil fine not exceeding $500 for each
violation.
(c) If a broker or salesperson has been declared disabled by a
court
of competent jurisdiction, the commission shall suspend the
broker's or
salesperson's license for the period of disability.
(d) No complaint alleging violation of this act or rules and
regulations
adopted hereunder, or the brokerage relationships in real estate
trans-
actions act or rules and regulations adopted thereunder as such act
gov-
erns the sale or lease of real estate that is one to four
residential units,
shall be commenced more than three years from the date of the
occur-
rence which is the subject of the complaint.
(e) All administrative proceedings pursuant to this section
shall be
conducted in accordance with the Kansas administrative procedure
act.
(f) Notwithstanding any provision of this act or the brokerage
rela-
tionships in real estate transactions act, as such act governs the
sale or
lease of real estate that is one to four residential units, to the
contrary,
the commission may use emergency adjudicative proceedings, as
provided
by K.S.A. 77-536 and amendments thereto, to summarily suspend
the
license of any licensee if the commission has reasonable cause to
believe
that the licensee's trust account is in unsound condition or that
the li-
censee is misappropriating funds belonging to other
persons.
(g) If a licensee has entered a plea of guilty or nolo
contendere to, or
has been convicted of, any felony charge, the commission may use
emer-
gency adjudicative proceedings, as provided by K.S.A. 77-536 and
amend-
ments thereto to suspend, revoke or restrict the licensee's
license.
(h) When the real estate license of an individual is revoked and
that
individual's name is included in the trade or business name of a
real estate
brokerage business, the commission may deny continued use of the
trade
Ch. 65 1997 Session Laws of Kansas 225
or business name if, in the opinion of the commission, it would
be con-
fusing or misleading to the public.
If the revocation of the individual's license is appealed to
district court
and a stay of the commission's order is granted by the court, the
com-
mission may not deny continued use of the trade or business name
until
such time as the district court upholds the order of the
commission.
Sec. 12. On and after October 1, 1997, K.S.A. 1996 Supp.
58-3050,
as revived by section 11 of this act, is hereby amended to read as
follows:
58-3050. (a) The license of any licensee may be revoked, suspended
or
restricted or a licensee may be censured, if:
(1) The commission finds that the license has been obtained by
false
or fraudulent representation or that the licensee has committed a
viola-
tion of this act or rules and regulations adopted hereunder, or the
bro-
kerage relationships in real estate transactions act or rules and
regulations
adopted thereunder as such act governs the sale or lease of
real estate, whether the
licensee acted as an agent
that is one to four residential units
or a principal in the real estate transaction;
(2) the licensee has entered a plea of guilty or nolo
contendere to, or
has been convicted of: (A) Forgery, embezzlement, obtaining money
un-
der false pretenses, larceny, extortion, conspiracy to defraud or
any other
similar offense; (B) a crime involving moral turpitude; or (C) any
felony
charge; or
(3) the licensee has been finally adjudicated and found to be
guilty
of violation of the federal fair housing act (42 U.S.C. 3601 et
seq.) or
K.S.A. 44-1015 through 44-1029, and amendments thereto.
(b) In addition to or in lieu of any other administrative, civil
or crim-
inal remedy provided by law, the commission, in accordance with
the
Kansas administrative procedure act and upon a finding that a
licensee
has violated a provision of this act or rules and regulations
adopted here-
under, or the brokerage relationships in real estate transactions
act or
rules and regulations adopted thereunder as such act
governs the sale or, may impose on
lease of real estate that is one to four residential
units
such licensee a civil fine not exceeding $500 for each
violation.
(c) If a broker or salesperson has been declared disabled by a
court
of competent jurisdiction, the commission shall suspend the
broker's or
salesperson's license for the period of disability.
(d) No complaint alleging violation of this act or rules and
regulations
adopted hereunder, or the brokerage relationships in real estate
trans-
actions act or rules and regulations adopted thereunder as
such act gov-,
erns the sale or lease of real estate that is one to four
residential units
shall be commenced more than three years from the date of the
occur-
rence which is the subject of the complaint.
(e) All administrative proceedings pursuant to this section
shall be
conducted in accordance with the Kansas administrative procedure
act.
226 1997 Session Laws of Kansas Ch. 65
(f) Notwithstanding any provision of this act or the brokerage
rela-
tionships in real estate transactions act, as such act
governs the sale or to the contrary,
lease of real estate that is one to four residential
units,
the commission may use emergency adjudicative proceedings, as
provided
by K.S.A. 77-536 and amendments thereto, to summarily suspend
the
license of any licensee if the commission has reasonable cause to
believe
that the licensee's trust account is in unsound condition or that
the li-
censee is misappropriating funds belonging to other
persons.
(g) If a licensee has entered a plea of guilty or nolo
contendere to, or
has been convicted of, any felony charge, the commission may use
emer-
gency adjudicative proceedings, as provided by K.S.A. 77-536 and
amend-
ments thereto to suspend, revoke or restrict the licensee's
license.
(h) When the real estate license of an individual is revoked and
that
individual's name is included in the trade or business name of a
real estate
brokerage business, the commission may deny continued use of the
trade
or business name if, in the opinion of the commission, it would be
con-
fusing or misleading to the public.
If the revocation of the individual's license is appealed to
district court
and a stay of the commission's order is granted by the court, the
com-
mission may not deny continued use of the trade or business name
until
such time as the district court upholds the order of the
commission.
Sec. 13. On and after July 1, 1997, K.S.A. 1996 Supp. 58-3062
is
hereby revived to read as follows: 58-3062. (a) No licensee,
whether acting
as an agent or a principal, shall:
(1) Intentionally use advertising that is misleading or
inaccurate in
any material particular or that in any way misrepresents any
property,
terms, values, policies or services of the business conducted, or
uses the
trade name, collective membership mark, service mark or logo of
any
organization owning such name, mark or logo without being
authorized
to do so.
(2) Fail to account for and remit any money which comes into
the
licensee's possession and which belongs to others.
(3) Misappropriate moneys required to be deposited in a trust
ac-
count pursuant to K.S.A. 58-3061 and amendments thereto, convert
such
moneys to the licensee's personal use or commingle the money or
other
property of the licensee's principals with the licensee's own money
or
property, except that nothing herein shall prohibit a broker from
having
funds in an amount not to exceed $100 in the broker's trust account
to
pay expenses for the use and maintenance of such account.
(4) Accept, give or charge any rebate or undisclosed
commission.
(5) Pay a referral fee to a person who is properly licensed as a
broker
or salesperson in another jurisdiction or who holds a corporate
real estate
license in another jurisdiction if the licensee knows that the
payment of
Ch. 65 1997 Session Laws of Kansas 227
the referral fee will result in the payment of a rebate by the
out-of-state
licensee.
(6) Represent or attempt to represent a broker without the
broker's
express knowledge and consent.
(7) Act in a dual capacity of agent and undisclosed principal in
any
transaction regarding the sale or lease of commercial or investment
real
estate property.
(8) Guarantee or authorize any person to guarantee future
profits that
may result from the resale of real property.
(9) Place a sign on any property offering it for sale or lease
without
the written consent of the owner or the owner's authorized
agent.
(10) Offer real estate for sale or lease without the knowledge
and
consent of the owner or the owner's authorized agent or on terms
other
than those authorized by the owner or the owner's authorized
agent.
(11) Induce any party to break any agency agreement or contract
of
sale or lease.
(12) Solicit a listing or negotiate a sale, exchange or lease of
com-
mercial or investment real estate property directly with an owner
or lessor
if the licensee knows that such owner or lessor has, with regard to
the
property, a written agency agreement granting an exclusive right to
sell
or lease to another broker.
(13) Solicit an agency agreement or negotiate a sale, exchange
or lease
of commercial or investment real estate property directly with a
buyer or
lessee if the licensee knows that such buyer or lessee has a
written agency
agreement granting exclusive representation to another
broker.
(14) Except for a commercial or investment real estate property
or
any property owned by any agency of the federal government, fail
to
obtain a written agency agreement, including a fixed date of
expiration,
signed by the party to be represented and by the licensee or fail
to furnish
a copy of the agreement to the principal within a reasonable time.
The
licensee shall not assign, sell or otherwise transfer a written
agency agree-
ment to another broker without the express written consent of all
parties
to the original listing agreement.
(15) In any transaction regarding the sale of commercial or
invest-
ment real estate property if the licensee represents the seller,
fail to dis-
close to a prospective buyer that: (A) The licensee is or will be
acting as
agent of the seller with the duty to represent the seller's
interest; (B) the
licensee will not be the agent of the prospective buyer; and (C)
infor-
mation given to the licensee will be disclosed to the seller. The
disclosure
shall be made orally or in writing when the licensee agrees to
assist the
prospective buyer to locate and inspect property and shall be made
in any
contract for sale and in any lot reservation agreement.
(16) In any transaction regarding the sale of commercial or
invest-
ment real estate property if the licensee represents the buyer,
fail to
disclose to a prospective seller or seller's agent that: (A) The
licensee is
228 1997 Session Laws of Kansas Ch. 65
or will be acting as agent of the buyer with the duty to
represent the
buyer's interest; (B) the licensee will not be the agent of the
seller; and
(C) information given to the licensee will be disclosed to the
buyer. The
disclosure shall be made orally or in writing no later than the
first showing
of the property and shall be made in any contract for sale and in
any lot
reservation agreement.
(17) In any transaction regarding the sale of commercial or
invest-
ment real estate property if the licensee represents both the buyer
and
seller, the licensee shall immediately disclose in writing: (A)
That the
licensee is acting as agent for both buyer and seller; and (B) the
com-
pensation arrangement. The disclosure shall be signed by both the
buyer
and the seller. If the exclusive right to sell agreement and the
buyer's
agency agreement include the disclosure of the possibility of dual
agency,
the written disclosure, for each specific transaction, shall be
signed by the
buyer no later than the first showing of the property and by the
seller no
later than the presentation of the offer to purchase. In addition,
the dis-
closure of the agency relationship between all licensees involved
and the
principals shall be included in any contract for sale and in any
lot reser-
vation agreement.
(18) Offer or give prizes, gifts or gratuities which are
contingent upon
an agency agreement or the sale, purchase or lease of real
estate.
(19) Enter into a listing agreement on commercial or investment
real
estate property in which the broker's commission is based upon the
dif-
ference between the gross sales price and the net proceeds to the
owner.
(20) Fail to see that financial obligations and commitments
between
the parties to an agreement to sell, exchange or lease real estate
are in
writing, expressing the exact agreement of the parties or to
provide, within
a reasonable time, copies thereof to all parties involved.
(21) Procure a signature to a purchase contract which has no
definite
purchase price, method of payment, description of property or
method
of determining the closing date.
(22) Include in any agency agreement an authorization to sign
or
initial any document on behalf of the licensee's principal in a
commercial
or investment real estate property transaction or authorization to
act as
attorney-in-fact for the principal.
(23) Engage in fraud or make any substantial
misrepresentation.
(24) Represent to any lender, guaranteeing agency or any other
in-
terested party, either verbally or through the preparation of false
docu-
ments, an amount in excess of the true and actual sale price of the
real
estate or terms differing from those actually agreed upon.
(25) Fail to make known to any purchaser or lessee any interest
the
licensee has in the real estate the licensee is selling or leasing
or to make
known to any seller or lessor any interest the licensee will have
in the real
estate the licensee is purchasing or leasing.
(26) Fail to inform both the buyer, at the time an offer is
made, and
Ch. 65 1997 Session Laws of Kansas 229
the seller, at the time an offer is presented, that certain
closing costs must
be paid and the approximate amount of such costs.
(27) Fail without just cause to surrender any document or
instrument
to the rightful owner.
(28) Accept anything other than cash as earnest money unless
that
fact is communicated to the owner prior to the owner's acceptance
of the
offer to purchase, and such fact is shown in the purchase
agreement.
(29) Fail to deposit any check or cash received as an earnest
money
deposit or as a deposit on the purchase of a lot within five
business days
after the purchase agreement or lot reservation agreement is signed
by
all parties, unless otherwise specifically provided by written
agreement of
all parties to the purchase agreement or lot reservation agreement,
in
which case the licensee shall deposit the check or cash received on
the
date provided by such written agreement.
(30) Fail in response to a request by the commission or the
director
to produce any document, book or record in the licensee's
possession or
under the licensee's control that concerns, directly or indirectly,
any real
estate transaction or the licensee's real estate business.
(31) In any transaction regarding the sale of commercial or
invest-
ment real estate property if the licensee represents the seller,
fail to
promptly submit any written offer to the licensee's principal when
such
offer is received prior to the closing of the sale or fail to
promptly submit
to the prospective buyer or buyer's agent any counteroffer made by
the
seller, including any back-up offers properly identified as
such.
(32) In any transaction regarding the sale of commercial or
invest-
ment real estate property if the licensee represents the buyer,
fail to
promptly submit any written offer to the seller or seller's agent
or fail to
promptly submit to the licensee's principal any counteroffer made
by the
seller, including any back-up offers properly identified as
such.
(33) Refuse to appear or testify under oath at any hearing held
by
the commission.
(34) Demonstrate incompetency to act as a broker, associate
broker
or salesperson.
(35) In any transaction regarding the sale or lease of
commercial or
investment real estate property fail to disclose, or ascertain and
disclose,
to any person with whom the licensee is dealing, any material
information
which relates to the property with which the licensee is dealing
and which
such licensee knew or should have known.
(36) Knowingly receive or accept, directly or indirectly, any
rebate,
reduction or abatement of any charge, or any special favor or
advantage
or any monetary consideration or inducement, involving the issuance
of
a title insurance policy or contract concerning which the licensee
is di-
rectly or indirectly connected, from a title insurance company or
title
insurance agent, or any officer, employee, attorney, agent or
solicitor
thereof.
230 1997 Session Laws of Kansas Ch. 65
(37) Engage in the purchase of one-, two-, three- or
four-family
dwellings, including condominiums and cooperatives, or the
acquisition
of any right, title or interest therein, including any equity or
redemption
interests, if:
(A) (i) At the time of such purchase, the dwellings are subject
to a
right of redemption pursuant to foreclosure of a mortgage on such
dwell-
ings; (ii) the licensee fails to give written notice of the
purchase, within
20 days thereafter, to the mortgage holder or judgment creditor who
held
such mortgage; and (iii) the licensee, unless otherwise required by
law or
court order, fails to apply any rent proceeds from the dwellings to
the
judgment lien arising from the foreclosure of such mortgage, as
payments
become due under the loan, regardless of whether the licensee is
obli-
gated to do so;
(B) (i) the dwellings are subject to a loan which is secured by
a mort-
gage and which is in default at the time of such purchase or in
default
within one year after such purchase; (ii) the licensee fails to
give written
notice of the purchase, within 20 days thereafter, to the mortgage
holder;
and (iii) the licensee, unless otherwise required by law or court
order,
fails to apply any rent proceeds from the dwellings to the mortgage
as the
payments come due, regardless of whether the licensee is obligated
on
the loan; or
(C) the licensee fails to notify, at the time of rental, any
person rent-
ing any such dwelling of the extent and nature of the licensee's
interest
in such dwelling and the probable time until possession will be
taken by
the mortgage holder or judgment creditor.
(38) Commit forgery or, unless authorized to do so by a duly
executed
power of attorney, sign or initial any contractual agreement on
behalf of
another person in a real estate transaction.
(b) In any transaction regarding the sale or lease of commercial
or
investment real estate property failure to comply with any
requirement
of subsection (a)(14), (15), (16) or (17) or their corollary rules
and regu-
lations shall not by itself render any agreement void or voidable
nor shall
it constitute a defense to any action to enforce such agreement or
any
action for breach of such agreement.
(c) The commission may provide suggested forms of agency
disclo-
sure and agency agreements and, by rules and regulations, provide
such
other prohibitions, limitations and conditions relating thereto as
the com-
mission may prescribe for transactions regarding the sale or lease
of com-
mercial or investment real estate property.
(d) No salesperson or associate broker shall:
(1) Accept a commission or other valuable consideration from
anyone
other than the salesperson's or associate broker's employing broker
or the
broker with whom the salesperson or associate broker is
associated.
(2) Fail to place, as soon after receipt as practicable, any
deposit
money or other funds entrusted to the salesperson or associate
broker in
Ch. 65 1997 Session Laws of Kansas 231
the custody of the broker whom the salesperson or associate
broker rep-
resents.
(e) No broker shall:
(1) Pay a commission or compensation to any person for
performing
the services of an associate broker or salesperson unless such
person is
licensed under this act and employed by or associated with the
broker,
except that nothing herein shall prohibit the payment of a referral
fee to
a person who is properly licensed as a broker or salesperson in
another
jurisdiction relating to a transaction regarding the sale or lease
of com-
mercial or investment real estate property.
(2) Fail to deliver to the seller in every real estate
transaction, at the
time the transaction is closed, a complete, detailed closing
statement
showing all of the receipts and disbursements handled by the broker
for
the seller, or fail to deliver to the buyer a complete statement
showing
all money received in the transaction from such buyer and how and
for
what the same was disbursed, or fail to retain true copies of such
state-
ments in the broker's files, except that the furnishing of such
statements
to the seller and buyer by an escrow agent shall relieve the
broker's re-
sponsibility to the seller and the buyer.
(3) Fail to properly supervise the activities of an associated
or em-
ployed salesperson or associate broker.
(4) Lend the broker's license to a salesperson, or permit a
salesperson
to operate as a broker.
(5) Fail to provide to the principal a written report every 30
days,
along with a final report, itemizing disbursements made by the
broker
from advance listing fees.
(f) If a purchase agreement provides that the earnest money be
held
by an escrow agent other than a real estate broker, unless
otherwise spe-
cifically provided by written agreement of all parties to the
purchase
agreement, no listing broker shall:
(1) Fail to deliver the purchase agreement and earnest money
deposit
to the escrow agent named in the purchase agreement within five
business
days after the purchase agreement is signed by all parties;
or
(2) fail to obtain and keep in the transaction file a receipt
from the
escrow agent showing date of delivery of the purchase agreement
and
earnest money deposit.
(g) Nothing in this section shall be construed to grant any
person a
private right of action for damages or to eliminate any right of
action
pursuant to other statutes or common law.
Sec. 14. On and after October 1, 1997, K.S.A. 1996 Supp.
58-3062,
as revived by section 13 of this act, is hereby amended to read as
follows:
58-3062. (a) No licensee, whether acting as an agent or a
principal, shall:
(1) Intentionally use advertising that is misleading or
inaccurate in
any material particular or that in any way misrepresents any
property,
232 1997 Session Laws of Kansas Ch. 65
terms, values, policies or services of the business conducted,
or uses the
trade name, collective membership mark, service mark or logo of
any
organization owning such name, mark or logo without being
authorized
to do so.
(2) Fail to account for and remit any money which comes into
the
licensee's possession and which belongs to others.
(3) Misappropriate moneys required to be deposited in a trust
ac-
count pursuant to K.S.A. 58-3061 and amendments thereto, convert
such
moneys to the licensee's personal use or commingle the money or
other
property of the licensee's principals with the licensee's own money
or
property, except that nothing herein shall prohibit a broker from
having
funds in an amount not to exceed $100 in the broker's trust account
to
pay expenses for the use and maintenance of such account.
(4) Accept, give or charge any rebate or undisclosed
commission.
(5) Pay a referral fee to a person who is properly licensed as a
broker
or salesperson in another jurisdiction or who holds a corporate
real estate
license in another jurisdiction if the licensee knows that the
payment of
the referral fee will result in the payment of a rebate by the
out-of-state
licensee.
(6) Represent or attempt to represent a broker without the
broker's
express knowledge and consent.
(7) Act in a dual capacity of agent and undisclosed
principal in any
transaction regarding the sale or lease of commercial or investment
real
estate property.
(8) Guarantee or authorize any person to
guarantee future profits that
may result from the resale of real property.
(9) (8) Place a sign on any property
offering it for sale or lease without
the written consent of the owner or the owner's authorized
agent.
(10) (9) Offer real estate for sale or
lease without the knowledge and
consent of the owner or the owner's authorized agent or on terms
other
than those authorized by the owner or the owner's authorized
agent.
(11) (10) Induce any party to break any
agency agreement or contract
of sale or lease.
(12) Solicit a listing or negotiate a sale, exchange or
lease of com-
mercial or investment real estate property directly with an owner
or lessor
if the licensee knows that such owner or lessor has, with regard to
the
property, a written agency agreement granting an exclusive right to
sell
or lease to another broker.
(13) Solicit an agency agreement or negotiate a sale,
exchange or lease
of commercial or investment real estate property directly with a
buyer or
lessee if the licensee knows that such buyer or lessee has a
written agency
agreement granting exclusive representation to another
broker.
(14) Except for a commercial or investment real estate
property or
any property owned by any agency of the federal government, fail
to
obtain a written agency agreement, including a fixed date of
expiration,
Ch. 65 1997 Session Laws of Kansas 233
signed by the party to be represented and by the
licensee or fail to furnish
a copy of the agreement to the principal within a reasonable time.
The
licensee shall not assign, sell or otherwise transfer a written
agency agree-
ment to another broker without the express written consent of all
parties
to the original listing agreement.
(15) In any transaction regarding the sale of commercial
or invest-
ment real estate property if the licensee represents the seller,
fail to dis-
close to a prospective buyer that: (A) The licensee is or will be
acting as
agent of the seller with the duty to represent the seller's
interest; (B) the
licensee will not be the agent of the prospective buyer; and (C)
infor-
mation given to the licensee will be disclosed to the seller. The
disclosure
shall be made orally or in writing when the licensee agrees to
assist the
prospective buyer to locate and inspect property and shall be made
in any
contract for sale and in any lot reservation
agreement.
(16) In any transaction regarding the sale of commercial
or invest-
ment real estate property if the licensee represents the buyer,
fail to
disclose to a prospective seller or seller's agent that: (A) The
licensee is
or will be acting as agent of the buyer with the duty to represent
the
buyer's interest; (B) the licensee will not be the agent of the
seller; and
(C) information given to the licensee will be disclosed to the
buyer. The
disclosure shall be made orally or in writing no later than the
first showing
of the property and shall be made in any contract for sale and in
any lot
reservation agreement.
(17) In any transaction regarding the sale of commercial
or invest-
ment real estate property if the licensee represents both the buyer
and
seller, the licensee shall immediately disclose in writing: (A)
That the
licensee is acting as agent for both buyer and seller; and (B) the
com-
pensation arrangement. The disclosure shall be signed by both the
buyer
and the seller. If the exclusive right to sell agreement and the
buyer's
agency agreement include the disclosure of the possibility of dual
agency,
the written disclosure, for each specific transaction, shall be
signed by the
buyer no later than the first showing of the property and by the
seller no
later than the presentation of the offer to purchase. In addition,
the dis-
closure of the agency relationship between all licensees involved
and the
principals shall be included in any contract for sale and in any
lot reser-
vation agreement.
(18) (11) Offer or give prizes, gifts or
gratuities which are contingent
upon an agency agreement or the sale, purchase or lease of real
estate.
(19) Enter into a listing agreement on commercial or
investment real
estate property in which the broker's commission is based upon the
dif-
ference between the gross sales price and the net proceeds to the
owner.
(20) (12) Fail to see that financial
obligations and commitments be-
tween the parties to an agreement to sell, exchange or lease real
estate
are in writing, expressing the exact agreement of the parties or to
provide,
within a reasonable time, copies thereof to all parties
involved.
234 1997 Session Laws of Kansas Ch. 65
(21) (13) Procure a signature to a
purchase contract which has no
definite purchase price, method of payment, description of property
or
method of determining the closing date.
(22) Include in any agency agreement an authorization to
sign or
initial any document on behalf of the licensee's principal in a
commercial
or investment real estate property transaction or authorization to
act as
attorney-in-fact for the principal.
(23)(14) Engage in fraud or make any
substantial misrepresentation.
(24) (15) Represent to any lender,
guaranteeing agency or any other
interested party, either verbally or through the preparation of
false doc-
uments, an amount in excess of the true and actual sale price of
the real
estate or terms differing from those actually agreed upon.
(25) (16) Fail to make known to any
purchaser or lessee any interest
the licensee has in the real estate the licensee is selling or
leasing or to
make known to any seller or lessor any interest the licensee will
have in
the real estate the licensee is purchasing or leasing.
(26) (17) Fail to inform both the buyer,
at the time an offer is made,
and the seller, at the time an offer is presented, that certain
closing costs
must be paid and the approximate amount of such costs.
(27) (18) Fail without just cause to
surrender any document or in-
strument to the rightful owner.
(28) (19) Accept anything other than
cash as earnest money unless
that fact is communicated to the owner prior to the owner's
acceptance
of the offer to purchase, and such fact is shown in the purchase
agree-
ment.
(29) (20) Fail to deposit any check or
cash received as an earnest
money deposit or as a deposit on the purchase of a lot within five
business
days after the purchase agreement or lot reservation agreement is
signed
by all parties, unless otherwise specifically provided by written
agreement
of all parties to the purchase agreement or lot reservation
agreement, in
which case the licensee shall deposit the check or cash received on
the
date provided by such written agreement.
(30) (21) Fail in response to a request
by the commission or the di-
rector to produce any document, book or record in the licensee's
posses-
sion or under the licensee's control that concerns, directly or
indirectly,
any real estate transaction or the licensee's real estate
business.
(31) In any transaction regarding the sale of commercial
or invest-
ment real estate property if the licensee represents the seller,
fail to
promptly submit any written offer to the licensee's principal when
such
offer is received prior to the closing of the sale or fail to
promptly submit
to the prospective buyer or buyer's agent any counteroffer made by
the
seller, including any back-up offers properly identified as
such.
(32) In any transaction regarding the sale of commercial
or invest-
ment real estate property if the licensee represents the buyer,
fail to
promptly submit any written offer to the seller or seller's agent
or fail to
Ch. 65 1997 Session Laws of Kansas 235
promptly submit to the licensee's principal any
counteroffer made by the
seller, including any back-up offers properly identified as
such.
(33) (22) Refuse to appear or testify
under oath at any hearing held
by the commission.
(34) (23) Demonstrate incompetency to
act as a broker, associate bro-
ker or salesperson.
(35) In any transaction regarding the sale or lease of
commercial or
investment real estate property fail to disclose, or ascertain and
disclose,
to any person with whom the licensee is dealing, any material
information
which relates to the property with which the licensee is dealing
and which
such licensee knew or should have known.
(36) (24) Knowingly receive or accept,
directly or indirectly, any re-
bate, reduction or abatement of any charge, or any special favor or
ad-
vantage or any monetary consideration or inducement, involving the
is-
suance of a title insurance policy or contract concerning which
the
licensee is directly or indirectly connected, from a title
insurance company
or title insurance agent, or any officer, employee, attorney, agent
or so-
licitor thereof.
(37) (25) Engage in the purchase of
one-, two-, three- or four-family
dwellings, including condominiums and cooperatives, or the
acquisition
of any right, title or interest therein, including any equity or
redemption
interests, if:
(A) (i) At the time of such purchase, the dwellings are subject
to a
right of redemption pursuant to foreclosure of a mortgage on such
dwell-
ings; (ii) the licensee fails to give written notice of the
purchase, within
20 days thereafter, to the mortgage holder or judgment creditor who
held
such mortgage; and (iii) the licensee, unless otherwise required by
law or
court order, fails to apply any rent proceeds from the dwellings to
the
judgment lien arising from the foreclosure of such mortgage, as
payments
become due under the loan, regardless of whether the licensee is
obli-
gated to do so;
(B) (i) the dwellings are subject to a loan which is secured by
a mort-
gage and which is in default at the time of such purchase or in
default
within one year after such purchase; (ii) the licensee fails to
give written
notice of the purchase, within 20 days thereafter, to the mortgage
holder;
and (iii) the licensee, unless otherwise required by law or court
order,
fails to apply any rent proceeds from the dwellings to the mortgage
as the
payments come due, regardless of whether the licensee is obligated
on
the loan; or
(C) the licensee fails to notify, at the time of rental, any
person rent-
ing any such dwelling of the extent and nature of the licensee's
interest
in such dwelling and the probable time until possession will be
taken by
the mortgage holder or judgment creditor.
(38) (26) Commit forgery or, unless
authorized to do so by a duly
236 1997 Session Laws of Kansas Ch. 65
executed power of attorney, sign or initial any contractual
agreement on
behalf of another person in a real estate transaction.
(b) In any transaction regarding the sale or lease of
commercial or
investment real estate property failure to comply with any
requirement
of subsection (a)(14), (15), (16) or (17) or their corollary rules
and regu-
lations shall not by itself render any agreement void or voidable
nor shall
it constitute a defense to any action to enforce such agreement or
any
action for breach of such agreement.
(c) The commission may provide suggested forms of agency
disclo-
sure and agency agreements and, by rules and regulations, provide
such
other prohibitions, limitations and conditions relating thereto as
the com-
mission may prescribe for transactions regarding the sale or lease
of com-
mercial or investment real estate property.
(d) No salesperson or associate broker
shall:
(1) Except as provided in paragraph (A) or (B), accept a
commission
or other valuable consideration from anyone other than the
salesperson's broker by
whom the licensee
or associate broker's employing broker or the broker with whom the
sa-
lesperson or associate broker is associated.
is employed or with whom the licensee is associated as an
independent
contractor.
(A) A salesperson or associate broker may accept a commission
or
other valuable consideration from a licensee who employs the
salesperson
or associate broker as a personal assistant provided that: (i) the
licensee
and the salesperson or associate broker who is employed as a
personal
assistant are licensed under the supervision of the same broker,
and (ii)
the supervising broker agrees in writing that the personal
assistant may
be paid by the licensee.
(B) If a salesperson or associate broker has (i) organized as
a profes-
sional corporation pursuant to K.S.A. 17-2706 et
seq., and amendments
thereto, (ii) incorporated under the Kansas general corporation
code con-
tained in K.S.A. 17-6001 et seq., and amendments
thereto, (iii) organized
under the Kansas limited liability company act contained in K.S.A.
17-
7601 et seq., and amendments thereto, or (iv) has
organized as a registered
limited liability partnership as defined in K.S.A. 56-302 and
amendments
thereto, the commission or other valuable consideration may be paid
by
the licensee's broker to such professional corporation,
corporation, limited
liability company or limited liability partnership. This provision
shall not
alter any other provisions of this act.
(2) Fail to place, as soon after receipt as practicable, any
deposit
money or other funds entrusted to the salesperson or associate
broker in
the custody of the broker whom the salesperson or associate broker
rep-
resents.
(e) (c) No broker shall:
(1) Pay a commission or compensation to any person for
performing
the services of an associate broker or salesperson unless such
person is
Ch. 65 1997 Session Laws of Kansas 237
licensed under this act and employed by or associated with the
broker,.
except that nothing herein shall prohibit the payment of a referral
fee to
a person who is properly licensed as a broker or salesperson in
another
jurisdiction relating to a transaction regarding the sale or lease
of com-
mercial or investment real estate property
(2) Fail to deliver to the seller in every real estate
transaction, at the
time the transaction is closed, a complete, detailed closing
statement
showing all of the receipts and disbursements handled by the broker
for
the seller, or fail to deliver to the buyer a complete statement
showing
all money received in the transaction from such buyer and how and
for
what the same was disbursed, or fail to retain true copies of such
state-
ments in the broker's files, except that the furnishing of such
statements
to the seller and buyer by an escrow agent shall relieve the
broker's re-
sponsibility to the seller and the buyer.
(3) Fail to properly supervise the activities of an associated
or em-
ployed salesperson or associate broker.
(4) Lend the broker's license to a salesperson, or permit a
salesperson
to operate as a broker.
(5) Fail to provide to the principal a written report every 30
days,
along with a final report, itemizing disbursements made by the
broker
from advance listing fees.
(f) (d) (1) If a purchase agreement
provides that the earnest money
be held by an escrow agent other than a real estate broker,
unless oth- no listing broker shall:
erwise specifically provided by written agreement of all parties to
the
purchase agreement,
(1) (A) Fail to deliver the purchase
agreement and earnest money
deposit to the escrow agent named in the purchase agreement within
five
business days after the purchase agreement is signed by all parties
unless
otherwise specifically provided by written agreement of all parties
to the
purchase agreement, in which case the broker shall deliver the
purchase
agreement and earnest money deposit to the escrow agent named in
the
purchase agreement on the date provided by such written
agreement; or
(2) (B) fail to obtain and keep in the
transaction file a receipt from
the escrow agent showing date of delivery of the purchase agreement
and
earnest money deposit.
(2) If a purchase agreement provides that the earnest money
be held
by an escrow agent other than a real estate broker and the property
was
not listed with a broker, no broker for the buyer
shall:
(A) Fail to deliver the purchase agreement and earnest money
deposit
to the escrow agent named in the purchase agreement within five
business
days after the purchase agreement is signed by all parties unless
otherwise
specifically provided by written agreement of all parties to the
purchase
agreement, in which case the broker shall deliver the purchase
agreement
and earnest money deposit to the escrow agent named in the
purchase
agreement on the date provided by such written agreement;
or
238 1997 Session Laws of Kansas Ch. 65
(B) fail to obtain and keep in the transaction file a receipt
from the
escrow agent showing date of delivery of the purchase agreement
and
earnest money deposit.
(3) If a purchase agreement provides that the earnest money
be held
by an escrow agent other than a real estate broker and neither the
seller
nor buyer is represented by a broker, no transaction broker
shall:
(A) Fail to deliver the purchase agreement and earnest money
deposit
to the escrow agent named in the purchase agreement within five
business
days after the purchase agreement is signed by all parties unless
otherwise
specifically provided by written agreement of all parties to the
purchase
agreement, in which case the broker shall deliver the purchase
agreement
and earnest money deposit to the escrow agent named in the
purchase
agreement on the date provided by such written agreement;
or
(B) fail to obtain and keep in the transaction file a receipt
from the
escrow agent showing date of delivery of the purchase agreement
and
earnest money deposit.
The commission may adopt rules and regulations to require
that such
purchase agreement which provides that the earnest money be held
by
an escrow agent other than a real estate broker include: (1)
notification
of whether or not the escrow agent named in the purchase
agreement
maintains a surety bond, and (2) notification that statutes
governing the
disbursement of earnest money held in trust accounts of real estate
brokers
do not apply to earnest money deposited with the escrow agent named
in
the purchase agreement.
(g) (e) Nothing in this section shall be
construed to grant any person
a private right of action for damages or to eliminate any right of
action
pursuant to other statutes or common law.
Sec. 15. On and after October 1, 1997, K.S.A. 58-3063 is
hereby
amended to read as follows: 58-3063. (a) The commission shall adopt
rules
and regulations fixing the amounts of the fees provided for by this
act,
subject to the following:
(1) For any examination required for licensure, a fee in an
amount
equal to the actual cost of the examination and the administration
thereof.
(2) For submission of an application for an original
salesperson's li-
cense, an amount not exceeding $25.
(3) for submission of an application for an original broker's
license,
an amount not exceeding $50.
(4) For an original salesperson's license, a prorated fee
based on an a two-year amount not exceeding
annual$50 $100.
(5) For an original broker's license, a prorated fee
based on an annuala two-year amount not
exceeding $75 $150.
(6) For renewal of a salesperson's license, a fee based on
an annuala two-year amount not
exceeding $50 $100.
Ch. 65 1997 Session Laws of Kansas 239
(7) For renewal of a broker's license, a fee based on an
annual a two-
year amount not exceeding $75
$150.
(8) For reinstatement of a license which has been deactivated
or
which has been canceled pursuant to subsection (d) of K.S.A.
58-3047
and amendments thereto, or by reason of termination of a
salesperson,
an amount not exceeding $15.
(9) For reinstatement of all licenses canceled pursuant to
subsection
(e) of K.S.A. 58-3047 and amendments thereto, an amount not
exceeding
$7.50 for each license canceled.
(10) For issuance of a duplicate license, an amount not
exceeding
$10.
(11) For certification of licensure to another jurisdiction, an
amount
not exceeding $10.
(12) For approval of a course of instruction submitted by a
course
provider pursuant to K.S.A. 58-3046a and amendments thereto, an
amount not exceeding $75.
(13) For renewal of an approved course of instruction pursuant
to
K.S.A. 58-3046a and amendments thereto, an amount not exceeding
$15.
(14) For approval of a course of instruction submitted by any
licensee
for credit toward the 12 hours of additional instruction required
by K.S.A.
58-3046a and amendments thereto, an amount not less than $10 nor
more
than $20, as determined by the commission.
(15) For a temporary salesperson's license, an amount not
exceeding
$25.
(b) For each prorated fee, the commission shall establish a
monthly
amount, rounded off to the nearest dollar, and shall compute the
fee from
the last calendar day of the month in which the license is issued
to the
expiration date of the license.
(b) (c) Subject to the limitations of
this section, the commission shall
fix the fees provided for by this section in the amounts necessary
to ad-
minister and enforce this act.
(c) (d) The fees provided for by this
section shall be applicable re-
gardless of the type of license.
Sec. 16. On and after July 1, 1997, K.S.A. 1996 Supp. 58-3064
is
hereby revived to read as follows: 58-3064. Whenever any person
has
engaged in any act or practice that constitutes a violation of this
act or
rules and regulations adopted hereunder or the brokerage
relationships
in real estate transactions act or rules and regulations adopted
thereunder
as such act governs the sale or lease of real estate that is one to
four
residential units, the commission may institute an action in the
district
court of the county in which the person resides or in the district
court in
the county in which such act or practice occurred for an injunction
to
enforce compliance with the act or rules and regulations. The
commission
shall not be required to give any bond or pay any filing fee for
initiating
240 1997 Session Laws of Kansas Ch. 65
such action. Upon a showing that the person has engaged in any
act or
practice in violation of the act or rules and regulations, the
court may
enjoin all such acts or practices and may make any orders necessary
to
conserve, protect and disburse any funds involved.
Sec. 17. On and after October 1, 1997, K.S.A. 1996 Supp.
58-3064,
as revived by section 16 of this act, is hereby amended to read as
follows:
58-3064. Whenever any person has engaged in any act or practice
that
constitutes a violation of this act or rules and regulations
adopted here-
under or the brokerage relationships in real estate transactions
act or rules
and regulations adopted thereunder as such act governs the
sale or lease, the
commission may
of real estate that is one to four residential units
institute an action in the district court of the county in which
the person
resides or in the district court in the county in which such act or
practice
occurred for an injunction to enforce compliance with the act or
rules
and regulations. The commission shall not be required to give any
bond
or pay any filing fee for initiating such action. Upon a showing
that the
person has engaged in any act or practice in violation of the act
or rules
and regulations, the court may enjoin all such acts or practices
and may
make any orders necessary to conserve, protect and disburse any
funds
involved.
Sec. 18. On and after July 1, 1997, K.S.A. 1996 Supp. 58-3065
is
hereby revived to read as follows: 58-3065. (a) Willful violation
of any
provision of this act or the brokerage relationships in real estate
trans-
actions act, as such act governs the sale or lease of real estate
that is one
to four residential units, is a misdemeanor punishable by
imprisonment
for not more than 12 months or a fine of not less than $100 or more
than
$1,000, or both, for the first offense and imprisonment for not
more than
12 months or a fine of not less than $1,000 or more than $10,000,
or
both, for a second or subsequent offense.
(b) Nothing in this act or the brokerage relationships in real
estate
transactions act, as such act governs the sale or lease of real
estate that is
one to four residential units, shall be construed as requiring the
commis-
sion or the director to report minor violations of the acts for
criminal
prosecution whenever the commission or the director believes that
the
public interest will be adequately served by other administrative
action.
Sec. 19. On and after October 1, 1997, K.S.A. 1996 Supp.
58-3065,
as revived by section 18 of this act, is hereby amended to read as
follows:
58-3065. (a) Willful violation of any provision of this act or the
brokerage
relationships in real estate transactions act, as such act
governs the sale is a misdemeanor
or lease of real estate that is one to four residential
units,
punishable by imprisonment for not more than 12 months or a fine
of
not less than $100 or more than $1,000, or both, for the first
offense and
imprisonment for not more than 12 months or a fine of not less
than
$1,000 or more than $10,000, or both, for a second or subsequent
offense.
Ch. 65 1997 Session Laws of Kansas 241
(b) Nothing in this act or the brokerage relationships in real
estate
transactions act, as such act governs the sale or lease of
real estate that is shall be construed as
requiring the commis-
one to four residential units,
sion or the director to report minor violations of the acts for
criminal
prosecution whenever the commission or the director believes that
the
public interest will be adequately served by other administrative
action.
Sec. 20. On and after July 1, 1997, K.S.A. 1996 Supp. 58-3068
is
hereby revived to read as follows: 58-3068. (a) Moneys in the real
estate
recovery revolving fund shall be used in the manner provided by
this act
to reimburse persons who suffer monetary damages by reason of any
of
the following acts committed in connection with any transaction
involving
the sale of real estate in this state by any broker or salesperson
who was
licensed under the laws of this state at the time the act was
committed
or by any unlicensed employee of such broker or
salesperson:
(1) Violation of any of the following provisions of this
act:
(A) K.S.A. 58-3061 and amendments thereto; or
(B) subsection (a)(2), (3), (23), (28) or (29) or subsection
(d)(2) of
K.S.A. 58-3062 and amendments thereto; or
(2) violation of any provision of the brokerage relationships in
real
estate transactions act, as such act governs the sale or lease of
real estate
that is one to four residential units; or
(3) obtaining money or property by any act which would
constitute
any crime defined by K.S.A. 21-3701, 21-3704, 21-3705, 21-3706,
21-
3707, 21-3710, 21-3711 or 21-3712, and amendments thereto.
(b) Any person may seek recovery from the real estate recovery
re-
volving fund under the following conditions:
(1) Such person has received final judgment in a court of
competent
jurisdiction of this state in any action wherein the cause of
action was
based on any of the acts described in subsection (a);
(2) the claim is made within two years after the date that final
judg-
ment is entered;
(3) such person has caused to be issued a writ of execution upon
such
judgment, and the officer executing the same has made a return
showing
that no personal or real property of the judgment debtor liable to
be
levied upon in satisfaction of the judgment could be found, or that
the
amount realized on the sale of the judgment debtor's property
pursuant
to such execution was insufficient to satisfy the judgment;
(4) such person has made all reasonable searches and inquiries
to
ascertain whether the judgment debtor is possessed of real or
personal
property or other assets, subject to being sold or applied in
satisfaction
of the judgment, and by such search such person has discovered no
such
property or assets, or that such person has discovered such
property and
assets and that such person has taken all necessary action and
proceedings
242 1997 Session Laws of Kansas Ch. 65
for the application thereof to the judgment and that the amount
thereby
realized was insufficient to satisfy the judgment;
(5) any amounts recovered by such person from the judgment
debtor,
or from any other source, has been applied to the damages awarded
by
the court; and
(6) such person is not a person who is precluded by subsection
(c)
from making a claim for recovery.
(c) A person shall not be qualified to make a claim for recovery
from
the real estate recovery revolving fund, if:
(1) The person is the spouse of the judgment debtor or a
personal
representative of such spouse;
(2) the person acted as principal or agent in the real estate
transaction
which is the subject of the claim and is a licensed broker or
salesperson
or is a partnership, association, limited liability company or
corporation
whose partners, members, officers and employees are licensed as
pro-
vided by subsection (b) of K.S.A. 58-3042 and amendments thereto;
or
(3) such person's claim is based upon a real estate transaction
in
which the licensed broker or salesperson was acting on the broker's
or
salesperson's own behalf with respect to property owned or
controlled by
such broker or salesperson.
Sec. 21. On and after October 1, 1997, K.S.A. 1996 Supp.
58-3068,
as revived by section 20 of this act, is hereby amended to read as
follows:
58-3068. (a) Moneys in the real estate recovery revolving fund
shall be
used in the manner provided by this act to reimburse persons who
suffer
monetary damages by reason of any of the following acts committed
in
connection with any transaction involving the sale of real estate
in this
state by any broker or salesperson who was licensed under the laws
of
this state at the time the act was committed or by any unlicensed
em-
ployee of such broker or salesperson:
(1) Violation of any of the following provisions of this
act:
(A) K.S.A. 58-3061 and amendments thereto; or
(B) subsection (a)(2), (3), (23), (28) or (29)
(14), (19) or (20) or sub-
section (d)(2) (b)(2) of K.S.A. 58-3062 and
amendments thereto; or
(2) violation of any provision of the brokerage relationships in
real
estate transactions act, as such act governs the sale or
lease of real estate; or
that is one to four residential units
(3) obtaining money or property by any act which would
constitute
any crime defined by K.S.A. 21-3701, 21-3704, 21-3705, 21-3706,
21-
3707, 21-3710, 21-3711 or 21-3712, and amendments thereto.
(b) Any person may seek recovery from the real estate recovery
re-
volving fund under the following conditions:
(1) Such person has received final judgment in a court of
competent
jurisdiction of this state in any action wherein the cause of
action was
based on any of the acts described in subsection (a);
Ch. 65 1997 Session Laws of Kansas 243
(2) the claim is made within two years after the date that final
judg-
ment is entered;
(3) such person has caused to be issued a writ of execution upon
such
judgment, and the officer executing the same has made a return
showing
that no personal or real property of the judgment debtor liable to
be
levied upon in satisfaction of the judgment could be found, or that
the
amount realized on the sale of the judgment debtor's property
pursuant
to such execution was insufficient to satisfy the judgment;
(4) such person has made all reasonable searches and inquiries
to
ascertain whether the judgment debtor is possessed of real or
personal
property or other assets, subject to being sold or applied in
satisfaction
of the judgment, and by such search such person has discovered no
such
property or assets, or that such person has discovered such
property and
assets and that such person has taken all necessary action and
proceedings
for the application thereof to the judgment and that the amount
thereby
realized was insufficient to satisfy the judgment;
(5) any amounts recovered by such person from the judgment
debtor,
or from any other source, has been applied to the damages awarded
by
the court; and
(6) such person is not a person who is precluded by subsection
(c)
from making a claim for recovery.
(c) A person shall not be qualified to make a claim for recovery
from
the real estate recovery revolving fund, if:
(1) The person is the spouse of the judgment debtor or a
personal
representative of such spouse;
(2) the person acted as principal or agent in the real estate
transaction
which is the subject of the claim and is a licensed broker or
salesperson
or is a partnership, association, limited liability company or
corporation
whose partners, members, officers and employees are licensed as
pro-
vided by subsection (b) of K.S.A. 58-3042 and amendments thereto;
or
(3) such person's claim is based upon a real estate transaction
in
which the licensed broker or salesperson was acting on the broker's
or
salesperson's own behalf with respect to property owned or
controlled by
such broker or salesperson.
Sec. 22. On and after July 1, 1997, K.S.A. 1996 Supp. 58-30,101
is
hereby revived and amended to read as follows: 58-30,101. (a)
K.S.A.
1996 Supp. 58-30,101 through 58-30,112 shall be known and may be
cited
as the brokerage relationships in real estate transactions
act.
(b) Any application of this act to transactions regarding the
sale or
lease of commercial or investment real estate property shall be
suspended
and shall not be enforceable on and after the effective date of
this act.
Commercial or investment real estate property means any real estate
for
which the present or intended use is other than one to four
residential
units.
244 1997 Session Laws of Kansas Ch. 65
(c) The provisions of K.S.A. 1996 Supp. 58-30,101
through 58-30,112
shall be and hereby are abolished on July 1, 1997.
Sec. 23. On and after October 1, 1997, K.S.A. 1996 Supp.
58-30,101,
as revived and amended by section 22 of this act, is hereby amended
to
read as follows: 58-30,101. (a) K.S.A. 1996 Supp. 58-30,101
through 58- This act shall be known and may be cited as
the brokerage rela-
30,112
tionships in real estate transactions act.
(b) Any application of this act to transactions
regarding the sale or Failure to comply with any requirement of K.S.A.
58-30,103 or
lease of commercial or investment real estate property shall be
suspended
and shall not be enforceable on and after the effective date of
this act.
Commercial or investment real estate property means any real estate
for
which the present or intended use is other than one to four
residential
units.
K.S.A. 58-30,110, and amendments thereto, or rules and
regulations
adopted thereunder, shall not by itself render any agreement void
or void-
able nor shall it constitute a defense to any action to enforce
such agree-
ment or any action for breach of such agreement.
Sec. 24. On and after July 1, 1997, K.S.A. 1996 Supp. 58-30,102
is
hereby revived to read as follows: 58-30,102. As used in the
brokerage
relationships in real estate transactions act, unless the context
otherwise
requires:
(a) ``Affiliated licensee'' means any individual licensed as a
salesper-
son or broker under the Kansas real estate brokers' and
salespersons'
license act who is employed by a broker or affiliated with a broker
as an
independent contractor.
(b) ``Agency'' means every relationship in which a broker acts
for or
represents another, by the latter's express written authority, in a
real es-
tate transaction. ``Agency'' also means the relationship in which a
broker,
by verbal authorization pursuant to subsection (d)(2) of K.S.A.
1996 Supp.
58-30,103, acts for or represents any agency of the federal
government
in the sale of property owned by the federal agency.
(c) ``Agency agreement'' means a written agreement setting forth
the
terms and conditions of the relationship between a broker and the
bro-
ker's client.
(d) ``Broker'' means: (1) An individual who is licensed as a
broker
under the Kansas real estate brokers' and salespersons' license act
and
who has an agency with a seller, buyer, landlord or tenant; or (2)
a cor-
poration, partnership, association or limited liability company, of
which
the officers and members, or persons employed by or associated with
the
corporation, partnership, association or limited liability company,
are li-
censed pursuant to K.S.A. 58-3042 and amendments thereto and
which
has an agency with a seller, buyer, landlord or tenant. The term
``broker''
includes the broker's affiliated licensees except where the context
would
otherwise indicate. If an individual broker is indicated by the
context, the
Ch. 65 1997 Session Laws of Kansas 245
term ``broker'' means the supervising broker as defined by
K.S.A. 58-
3035 and amendments thereto.
(e) ``Brokerage firm'' means the business entity of a broker,
whether
a proprietorship, partnership, corporation, association or limited
liability
company.
(f) ``Buyer's agent'' means a broker who has an agency with a
buyer.
The term includes the broker's affiliated licensees.
(g) ``Client'' means a seller, landlord, buyer or tenant who has
an
agency with a broker.
(h) ``Commission'' means the Kansas real estate
commission.
(i) ``Confidential information'' means information made
confidential
by statute, rule, regulation or instructions from the client unless
the in-
formation is made public or becomes public by the words or conduct
of
the client to whom the information pertains or from a source other
than
the licensee.
(j) ``Customer'' means a seller, landlord, buyer or tenant in a
real
estate transaction in which a broker is involved but who has not
entered
into an agency with the broker.
(k) ``Designated agent'' means a licensee affiliated with a
broker who
has been designated by the broker, or the broker's duly authorized
rep-
resentative, to act as the agent of a broker's buyer client to the
exclusion
of all other affiliated licensees.
(l) ``Disclosed dual agent'' means a broker who, with the
written in-
formed consent of all parties to a contemplated real estate
transaction,
has entered into an agency with and therefore represents both the
seller
and buyer or both the landlord and tenant. The term includes the
broker's
affiliated licensees.
(m) ``Landlord's agent'' means a broker who has entered into
an
agency with a landlord. The term includes the broker's affiliated
licensees.
(n) ``Licensee'' means any person licensed under the Kansas real
es-
tate brokers' and salespersons' license act as a broker or
salesperson.
(o) ``Seller's agent'' means a broker who has an agency with a
seller.
The term includes the broker's affiliated licensees and subagents
of the
broker.
(p) ``Statutory agent'' means a broker who is a seller's agent,
a buyer's
agent, a landlord's agent, a tenant's agent or a disclosed dual
agent in a
real estate transaction.
(q) ``Tenant's agent'' means a broker who has an agency with a
pro-
spective tenant. The term includes the broker's affiliated
licensees.
Sec. 25. On and after October 1, 1997, K.S.A. 1996 Supp.
58-30,102,
as revived by section 24 of this act, is hereby amended to read as
follows:
58-30,102. As used in the brokerage relationships in real estate
transac-
tions act, unless the context otherwise requires:
(a) ``Affiliated licensee'' means any individual licensed as a
salesper-
246 1997 Session Laws of Kansas Ch. 65
son or broker under the Kansas real estate brokers' and
salespersons'
license act who is employed by a broker or affiliated with a broker
as an
independent contractor.
(b) ``Agency'' means every relationship in which a broker acts
for or
represents another, by the latter's express written authority, in a
real es-
tate transaction. ``Agency'' also means the relationship in which a
broker,
by verbal authorization pursuant to subsection (d)(2) of K.S.A.
1996 Supp.
58-30,103, and amendments thereto, acts for or represents
any agency of
the federal government in the sale of property owned by the
federal
agency.
(c) ``Agency agreement'' means a written agreement setting forth
the
terms and conditions of the relationship between a broker and the
bro-
ker's client.
(d) ``Broker'' means: (1) An individual who is licensed as a
broker
under the Kansas real estate brokers' and salespersons' license act
and
who has an agency with a seller, buyer, landlord or tenant or
acts as a
transaction broker; or (2) a corporation, partnership,
association or lim-
ited liability company, of which the officers and members, or
persons
employed by or associated with the corporation, partnership,
association
or limited liability company, are licensed pursuant to K.S.A.
58-3042 and
amendments thereto and which has an agency with a seller, buyer,
land-
lord or tenant or acts as a transaction broker. The term
``broker'' includes
the broker's affiliated licensees except where the context would
otherwise
indicate. If an individual broker is indicated by the context, the
term
``broker'' means the supervising broker as defined by K.S.A.
58-3035 and
amendments thereto.
(e) ``Brokerage firm'' means the business entity of a broker,
whether
a proprietorship, partnership, corporation, association or limited
liability
company.
(f) ``Buyer's agent'' means a broker who has an agency with a
buyer.
The term includes the broker's affiliated licensees.
(g) ``Client'' means a seller, landlord, buyer or tenant who has
an
agency with a broker.
(h) ``Commission'' means the Kansas real estate
commission.
(i) ``Confidential information'' means information made
confidential
by statute, rule, regulation or instructions from the client or
personal
information about the client which might place the other party at
an
advantage over the client unless the information is made public
or be-
comes public by the words or conduct of the client to whom the
infor-
mation pertains or from a source other than the licensee.
(j) ``Customer'' means a seller, landlord, buyer or tenant in a
real
estate transaction in which a broker is involved but who has not
entered
into an agency with the broker.
(k) ``Designated agent'' means a licensee affiliated with a
broker who
has been designated by the broker, or the broker's duly authorized
rep-
Ch. 65 1997 Session Laws of Kansas 247
resentative, to act as the agent of a broker's buyer or
seller client to the
exclusion of all other affiliated licensees.
(l) ``Disclosed dual agent'' means a broker who, with
the written in-
formed consent of all parties to a contemplated real estate
transaction,
has entered into an agency with and therefore represents both the
seller
and buyer or both the landlord and tenant. The term includes the
broker's
affiliated licensees.
(m) ``Landlord's agent'' means a broker who has
entered into an
agency with a landlord. The term includes the broker's affiliated
licensees.
(n) (m) ``Licensee'' means any person
licensed under the Kansas real
estate brokers' and salespersons' license act as a broker or
salesperson.
(n) ``Ministerial acts'' means those acts that a licensee may
perform
for a person that are informative in nature and do not rise to the
level of
active representation on behalf of a person. Examples of these acts
include,
but are not limited to:
(1) Responding to telephone inquiries by consumers as to the
avail-
ability and pricing of brokerage services;
(2) responding to telephone inquiries from a person
concerning the
price or location of property;
(3) attending an open house and responding to questions about
the
property from a consumer;
(4) setting an appointment to view property;
(5) responding to questions of consumers walking into a
licensee's
office concerning brokerage services offered on particular
properties;
(6) accompanying an appraiser, inspector, contractor or
similar third
party on a visit to a property;
(7) describing a property or the property's condition in
response to a
person's inquiry; or
(8) referral to another broker or service
provider.
(o) ``Seller's agent'' means a broker who has an agency with a
seller.
The term includes the broker's affiliated licensees and subagents
of the
broker.
(p) ``Qualified third party'' means a federal, state or local
govern-
mental agency or any person whom the broker, the affiliated
licensee or
a party to the real estate transaction reasonably believes has the
expertise
necessary to meet the industry standards of practice for the type
of in-
spection or investigation that has been conducted by the third
party in
order to prepare a written report.
(q)``Statutory agent'' means a broker who
is a seller's agent, a buyer's
agent, a landlord's agent, a tenant's agent or a disclosed
dual designated
agent in a real estate transaction.
(q) (r) ``Tenant's agent'' means a
broker who has an agency with a
prospective tenant. The term includes the broker's affiliated
licensees.
(s) ``Transaction broker'' means a broker who assists one or
more
parties with a real estate transaction without being an agent or
advocate
248 1997 Session Laws of Kansas Ch. 65
for the interests of any party to such transaction. The term
includes the
broker's affiliated licensees.
Sec. 26. On and after July 1, 1997, K.S.A. 1996 Supp. 58-30,103
is
hereby revived to read as follows: 58-30,103. (a) A broker shall
act only
as a statutory agent in any real estate transaction. A licensee may
act as a
disclosed dual agent but shall not act as an undisclosed dual agent
or in
a dual capacity of agent and undisclosed principal in any
transaction.
(b) A broker may work with a single party in separate
transactions
pursuant to different relationships, including, but not limited to,
selling
one property as a seller's agent and working with that seller in
buying
another property as a buyer's agent if the broker complies with
this act
in establishing the relationships for each transaction.
(c) Before an agency agreement is signed, the broker or an
affiliated
licensee shall advise the prospective buyer or seller of
alternative agency
relationships pursuant to K.S.A. 1996 Supp. 58-30,110.
(d) (1) Except as provided in subsection (d)(2), an agency
agreement
with a seller or landlord shall be signed prior to the licensee's
engaging
in any of the activities enumerated in subsection (e) of K.S.A.
58-3035
[58-3035a] and amendments thereto as an employee of, or on behalf
of,
the seller or landlord.
(2) If the real estate which is to be offered for sale is owned
by any
agency of the federal government, a broker may, on behalf of the
owner,
engage in activities enumerated in subsection (e) of K.S.A. 58-3035
[58-
3035a] and amendments thereto after obtaining verbal authorization
from
the federal agency for which services are to be performed.
(e) An agency agreement with a buyer or tenant shall be signed
at or
prior to the first showing of a property if the licensee is acting
in the
capacity of a buyer's agent. If the first showing is an open house
and the
buyer seeks representation from the licensee holding the open
house:
(1) The licensee may obtain a written agency agreement with
the
buyer and act as a disclosed dual agent pursuant to K.S.A. 1996
Supp.
58-30,108; or
(2) if the property was not listed by the licensee holding the
open
house, the licensee may obtain a written agency agreement with the
buyer
and act as a designated agent pursuant to K.S.A. 1996 Supp.
58-30,109.
(f) An agency agreement shall set forth the terms and conditions
of
the relationship, including a fixed date of expiration, and shall
specify the
duties and obligations pursuant to K.S.A. 1996 Supp. 58-30,106 or
58-
30,107, including, but not limited to, any duty of confidentiality
and the
terms of compensation. The agreement shall be signed by the party
to be
represented and by the broker or a licensee affiliated with the
broker. A
copy of the agreement shall be furnished to the client at the time
the
client signs the agreement. If, at the time the client signs the
agreement,
the agreement is not signed by the broker or a licensee affiliated
with the
Ch. 65 1997 Session Laws of Kansas 249
broker, the broker or a licensee affiliated with the broker
shall furnish a
copy of the agreement to the client within a reasonable time after
the
agreement is signed by the broker or a licensee affiliated with the
broker.
(g) An agency agreement with a seller or landlord shall include
any
potential for the seller's agent or landlord's agent to act as a
disclosed
dual agent.
(h) An agency agreement with a buyer or tenant shall include
any
potential for the buyer's agent or tenant's agent to act as a
disclosed dual
agent or for an affiliated licensee to act as a designated
agent.
(i) An agency agreement shall not contain an authorization for
the
broker to sign or initial any document on behalf of the broker's
client in
a real estate transaction or authorization for the broker to act as
attorney-
in-fact for the client.
(j) An agency agreement with a seller shall not provide that the
bro-
ker's commission be based on the difference between the gross sales
price
and the net proceeds to the owner.
(k) The broker shall not assign, sell or otherwise transfer a
written
agency agreement to another broker without the express written
consent
of all parties to the original agreement.
(l) A licensee shall not solicit an agency agreement from a
seller or
landlord if the licensee knows that the seller or landlord has,
with regard
to the property, an agency agreement granting an exclusive right to
sell
or exclusive agency to another broker.
(m) A licensee shall not solicit an agency agreement from a
buyer or
tenant if the licensee knows that the buyer or tenant has a written
agency
agreement granting exclusive representation to another
broker.
(n) A licensee shall not induce any party to break any agency
agree-
ment.
(o) A licensee shall not negotiate a sale, exchange or lease of
real
estate directly with a buyer or tenant if the licensee knows that
the buyer
or tenant has an agency agreement granting exclusive representation
to
another broker.
(p) A licensee shall not negotiate a sale, exchange or lease of
real
estate directly with a seller or landlord if the licensee knows
that the seller
or landlord has an agency agreement granting an exclusive right to
sell or
exclusive agency to another broker.
Sec. 27. On and after October 1, 1997, K.S.A. 1996 Supp.
58-30,103,
as revived by section 26 of this act, is hereby amended to read as
follows:
58-30,103. (a) Except when acting as a transaction broker or
solely as a
seller, buyer, landlord or tenant, a broker shall act only as a
statutory
agent in any real estate transaction. A licensee may act as
a disclosed dual shall not act as an undisclosed dual agent or in
a dual capacity
agent but
of agent and undisclosed principal in any transaction.
(b) A broker may work with a single party in separate
transactions
250 1997 Session Laws of Kansas Ch. 65
pursuant to different relationships, including, but not limited
to, selling
one property as a seller's agent and working with that seller in
buying
another property as a buyer's agent if the broker complies with
this act
in establishing the relationships for each transaction. A broker
who has
been working with a seller, landlord, buyer or tenant as a
transaction
broker may act as an agent for the seller, landlord, buyer or
tenant if the
broker complies with this act in establishing the agency
relationship.
(c) Before an agency agreement is signed, the broker or
an affiliated
A broker may be
licensee shall advise the prospective buyer or seller of
alternative agency
relationships pursuant to K.S.A. 1996 Supp. 58-30,110.
engaged as a transaction broker by oral or written agreement with
the
seller, landlord, buyer or tenant. A broker shall be considered a
transac-
tion broker unless:
(1) An agency relationship between the broker and the party
to be
represented is established pursuant to this section; or
(2) a broker works with a buyer or tenant as a subagent of
the seller
or landlord by accepting an offer of subagency.
(d) (1) Except as provided in subsection (d)(2), an
agency agreement a broker
intending to establish
with a seller or landlord shall be signed
an agency relationship with a seller or landlord shall enter into a
written
agency agreement with the party to be represented prior to the
licensee's
engaging in any of the activities enumerated in subsection (e) of
K.S.A.
58-3035 and amendments thereto as an employee of, or on behalf of,
the
seller or landlord.
(2) If the real estate which is to be offered for sale is owned
by any
agency of the federal government, a broker may, on behalf of the
owner,
engage in activities enumerated in subsection (e) of K.S.A. 58-3035
and
amendments thereto after obtaining verbal authorization from the
federal
agency for which services are to be performed.
(e) An agency agreement with a buyer or tenant shall be
signed at or
prior to the first showing of a property if the licensee is acting
in the
capacity of a buyer's agent. If the first showing is an open house
and the
buyer seeks representation from the licensee holding the open
house:
(1) The licensee may obtain a written agency agreement
with the
buyer and act as a disclosed dual agent pursuant to K.S.A. 1996
Supp.
58-30,108; or
(2) if the property was not listed by the licensee
holding the openTo establish an agency relationship with
a buyer or tenant, a broker shall
house, the licensee may obtain a written agency agreement with the
buyer
and act as a designated agent pursuant to K.S.A. 1996 Supp.
58-30,109.
enter into a written agency agreement with the party to be
represented
no later than the signing of an offer to purchase or
lease.
(f) An agency agreement shall set forth the terms and conditions
of
the relationship, including a fixed date of expiration, any
limitation on the
duty of confidentiality and the terms of compensation, and
shall specify
Ch. 65 1997 Session Laws of Kansas 251
refer to the duties and obligations pursuant to K.S.A.
1996 Supp. 58-
30,106 or 58-30,107, including, but not limited to, any
duty of confiden- and amendments
thereto. The
tiality and the terms of compensation
agreement shall be signed by the party to be represented and by
the
broker or a licensee affiliated with the broker. A copy of the
agreement
shall be furnished to the client at the time the client signs the
agreement.
If, at the time the client signs the agreement, the agreement is
not signed
by the broker or a licensee affiliated with the broker, the broker
or a
licensee affiliated with the broker shall furnish a copy of the
agreement
to the client within a reasonable time after the agreement is
signed by
the broker or a licensee affiliated with the broker.
(g) An agency agreement with a seller or landlord shall include
any
potential:
(1) for the seller's agent or landlord's agent to act as
a disclosed dual transaction broker;
agent
(2) for an affiliated licensee to act as a designated agent
for the buyer
and the designated agent's supervising broker or branch broker, and
an
affiliated licensee if applicable, to act as a transaction broker;
or
(3) for the broker to designate an affiliated licensee to act
as the des-
ignated agent for the seller on the broker's personal listing
pursuant to
subsection (b)(2) of K.S.A. 58-30,109 and amendments
thereto.
(h) An agency agreement with a buyer or tenant shall include
any
potential:
(1) For the buyer's agent or tenant's agent to act as a
disclosed dual transaction broker; or
agent
(2) For an affiliated licensee to act as a designated
agent for the seller
and the designated agent's supervising broker or branch broker, and
an
affiliated licensee if applicable, to act as a transaction
broker.
(i) An agency agreement shall not contain an authorization for
the
broker to sign or initial any document on behalf of the broker's
client in
a real estate transaction or authorization for the broker to act as
attorney-
in-fact for the client.
(j) An agency agreement with a seller shall not provide that the
bro-
ker's commission be based on the difference between the gross sales
price
and the net proceeds to the owner.
(k) The broker shall not assign, sell or otherwise transfer a
written
agency agreement to another broker without the express written
consent
of all parties to the original agreement.
(l) A licensee shall not solicit an agency agreement from a
seller or
landlord if the licensee knows that the seller or landlord has,
with regard
to the property, an agency agreement granting an exclusive right to
sell
or exclusive agency to another broker.
(m) A licensee shall not solicit an agency agreement from a
buyer or
tenant if the licensee knows that the buyer or tenant has a written
agency
agreement granting exclusive representation to another
broker.
252 1997 Session Laws of Kansas Ch. 65
(n) A licensee shall not induce any party to break any agency
agree-
ment.
(o) A licensee shall not negotiate a sale, exchange or
lease of real If a licensee knows that a buyer or
tenant has an agency
estate directly with a buyer or tenant if the licensee knows that
the buyer
or tenant has an agency agreement granting exclusive representation
to
another broker.
agreement granting exclusive representation to another broker, the
li-
censee shall not contact the buyer or tenant and shall not initiate
nego-
tiations for the sale, exchange or lease of real estate with the
buyer or
tenant. The licensee may negotiate the sale, exchange or lease of
real estate
directly with the buyer or tenant with the informed consent of the
buyer
or tenant. The informed consent shall be evidenced by a consent
agree-
ment signed by the buyer or tenant prior to any such direct
negotiation.
The consent agreement shall acknowledge the buyer or tenant
agency
agreement and that the buyer or tenant may be liable for
compensation
under the terms of the agency agreement. The commission, by rules
and
regulations, shall adopt a consent agreement to be used by
licensees pur-
suant to this subsection.
(p) A licensee shall not negotiate a sale, exchange or lease of
real
estate directly with a seller or landlord if the licensee knows
that the seller
or landlord has an agency agreement granting an exclusive right to
sell or
exclusive agency to another broker. A buyer's or tenant's agent
or a sub-
agent may present an offer to the seller or landlord if the
seller's or land-
lord's agent is present.
Sec. 28. On or after July 1, 1997, K.S.A. 1996 Supp. 58-30,104
is
hereby revived to read as follows: 58-30,104. (a) The relationships
set
forth in K.S.A. 1996 Supp. 58-30,103 shall commence at the time
that
the client engages the broker, and shall continue until:
(1) A transaction is closed according to the agreement of the
parties;
or
(2) if a transaction is not closed according to the agreement of
the
parties, the earlier of:
(A) Any date of expiration agreed upon by the parties in the
agency
agreement or in any amendments thereto; or
(B) any authorized termination of the relationship.
(b) Except as otherwise agreed in writing, a broker owes no
further
duties to the client after termination, expiration, or the closing
of a trans-
action according to the agreement of the parties, except:
(1) To account for all moneys and property relating to the
engage-
ment; and
(2) to keep confidential all information received during the
course of
the engagement which was made confidential by request or
instructions
from the client, unless:
(A) The client permits the disclosure by subsequent word or
conduct;
Ch. 65 1997 Session Laws of Kansas 253
(B) such disclosure is required by law; or
(C) the information becomes public from a source other than
the
broker.
Sec. 29. On and after October 1, 1997, K.S.A. 1996 Supp.
58-30,104,
as revived by section 28 of this act, is hereby amended to read as
follows:
58-30,104. (a) (1) The agency relationships set forth
in K.S.A. 1996 Supp.
58-30,103, and amendments thereto, shall commence at the
time that the
client engages the broker, and shall continue until:
(1) (A) A transaction is closed
according to the agreement of the
parties; or
(2) (B) if a transaction is not closed
according to the agreement of
the parties, the earlier of:
(A) (i) Any date of expiration agreed
upon by the parties in the agency
agreement or in any amendments thereto; or
(B) (ii) any authorized termination of
the relationship.
(b) (2) Except as otherwise agreed in
writing, a broker owes no fur-
ther duties to the client after termination, expiration, or the
closing of a
transaction according to the agreement of the parties,
except:
(1) (A) To account for all moneys and
property relating to the en-
gagement; and
(2) (B) to keep confidential all
confidential information received dur-
ing the course of the engagement which was made
confidential by request unless:
or instructions from the client,
(A) (i) The client permits the
disclosure by subsequent word or con-
duct;
(B) (ii) such disclosure is required by
law; or
(C) (iii) the information becomes public
from a source other than the
broker.
(b) (1) The relationship between a transaction broker and a
seller,
landlord, buyer or tenant shall terminate when:
(A) A transaction is closed according to the agreement of the
parties;
or
(B) if a transaction is not closed according to the agreement
of the
parties, the earlier of:
(i) Any date of expiration agreed upon by the parties;
or
(ii) any authorized termination of the
relationship.
(2) Except as otherwise agreed in writing, a transaction
broker owes
no further duties to any party to the transaction after
termination, expi-
ration or the closing of a transaction according to the agreement
of the
parties, except:
(A) To account for all moneys and property relating to the
engage-
ment; and
(B) to keep confidential all information received during the
course of
254 1997 Session Laws of Kansas Ch. 65
the engagement which was made confidential by request of any
party to
the transaction, unless:
(i) The party permits the disclosure by subsequent word or
conduct;
(ii) such disclosure is required by law; or
(iii) the information becomes public from a source other than
the
transaction broker.
Sec. 30. On and after July 1, 1997, K.S.A. 1996 Supp. 58-30,105
is
hereby revived to read as follows: 58-30,105. (a) Compensation is
pre-
sumed to come from the transaction and shall be determined by
agency
agreements entered into pursuant to K.S.A. 1996 Supp.
58-30,103.
(b) Payment of compensation by itself shall not establish an
agency
between the party who paid the compensation and the broker or
any
affiliated licensee.
(c) In any transaction, the broker's compensation may be paid by
the
seller, the landlord, the buyer or the tenant. A broker may be
compen-
sated by more than one party for services in a transaction if the
parties
consent in writing to the multiple payments at or before the time
of
entering into a contract to buy, sell or lease.
(d) A broker may:
(1) Pay a commission or compensation to any licensee affiliated
with
the broker for performing services under this act;
(2) with the written agreement of the seller or landlord, share
a com-
mission with another broker who acted as subagent of the seller or
land-
lord;
(3) with the written agreement of the seller or landlord, share
a com-
mission with a buyer's broker or a tenant's broker; and
(4) pay a referral fee to a person who is licensed as a broker
under
the real estate brokers' and salespersons' license act or under the
law of
another jurisdiction, provided that written disclosure is made to
the client
of any financial interest that the broker has in the brokerage firm
receiving
the referral fee.
Sec. 31. On and after October 1, 1997, K.S.A. 1996 Supp.
58-30,105,
as revived by section 30 of this act, is hereby amended to read as
follows:
58-30,105. (a) Compensation is presumed to come from the
transaction
and shall be determined by agency or transaction broker
agreements en-
tered into pursuant to K.S.A. 1996 Supp. 58-30,103, and
amendments
thereto.
(b) Payment of compensation by itself shall not establish an
agency
between the party who paid the compensation and the broker or
any
affiliated licensee.
(c) In any transaction, the broker's compensation may be paid by
the
seller, the landlord, the buyer or the tenant. A broker may be
compen-
sated by more than one party for services in a transaction if the
parties
Ch. 65 1997 Session Laws of Kansas 255
consent in writing to the multiple payments at or before the
time of
entering into a contract to buy, sell or lease.
(d) A broker may:
(1) Pay a commission or compensation to any licensee affiliated
with
the broker for performing services under this act;
(2) with the written agreement of the seller
or, landlord, buyer or
tenant share a commission with another broker who acted as
subagent of a transaction broker, a
subagent or an agent of the
the seller or landlord;
other party; and
(3) with the written agreement of the seller or
landlord, share a com-
mission with a buyer's broker or a tenant's broker;
and
(4) pay a referral fee to a person who is
licensed as a broker under
the real estate brokers' and salespersons' license act or under the
law of
another jurisdiction, provided that written disclosure is made to
the client
of any financial interest that the broker has in the brokerage firm
receiving
the referral fee.
Sec. 32. On and after July 1, 1997, K.S.A. 1996 Supp. 58-30,106
is
hereby revived to read as follows: 58-30,106. (a) A seller's agent
or a
landlord's agent shall be a statutory agent with the duty and
obligation
to:
(1) Perform the terms of the written agreement made with the
client;
(2) exercise reasonable skill and care for the client;
(3) promote the interests of the client with the utmost good
faith,
loyalty and fidelity, including:
(A) Seeking a price and terms which are acceptable to the
client,
except that an agency agreement with a seller may provide that the
broker
shall not be obligated to continue to market the property after an
offer
has been accepted by the seller;
(B) presenting, in a timely manner, all written offers,
counteroffers
and back-up offers to and from the client when such offer is
received
prior to the closing of the sale unless the seller instructs the
broker in the
agency agreement not to submit offers after an offer has been
accepted
by the seller;
(C) disclosing to the client all adverse material facts actually
known
by the licensee about the buyer or tenant; and
(D) advising the client to obtain expert advice as to material
matters
about which the licensee knows but the specifics of which are
beyond the
expertise of the licensee;
(4) account in a timely manner for all money and property
received;
(5) comply with all requirements of this act and rules and
regulations
adopted hereunder; and
(6) comply with any applicable federal, state and local laws,
rules and
regulations and ordinances, including fair housing and civil rights
statutes
and rules and regulations.
256 1997 Session Laws of Kansas Ch. 65
(b) If pursuant to subsection (a)(3)(D), the licensee advised
the client
to obtain expert advice as to material matters about which the
licensee
knows but the specifics of which are beyond the expertise of the
licensee,
no cause of action for any person shall arise against the licensee
pertaining
to such material matters.
(c) A seller's or landlord's agent shall not disclose any
confidential
information about the client unless disclosure is required by
statute or
rule and regulation or failure to disclose the information would
constitute
fraudulent misrepresentation. No cause of action for any person
shall arise
against a licensee acting as a seller's or landlord's agent for
making any
required or permitted disclosure.
(d) (1) A seller's or landlord's agent owes no duty or
obligation to a
customer, except that a licensee shall disclose to any customer all
adverse
material facts actually known by the licensee, including but not
limited
to:
(A) Any environmental hazards affecting the property which are
re-
quired by law to be disclosed;
(B) the physical condition of the property;
(C) any material defects in the property;
(D) any material defects in the title to the property;
or
(E) any material limitation on the client's ability to perform
under
the terms of the contract.
(2) A seller's or landlord's agent owes no duty to conduct an
inde-
pendent inspection of the property for the benefit of the customer
and
owes no duty to independently verify the accuracy or completeness
of
any statement made by the client or any qualified third
party.
(3) Except as provided in subsection (d)(4), a seller's or
landlord's
agent is not required to disclose to a client or customer
information re-
lating to the physical condition of the property if a written
report regard-
ing the physical condition of the property has been prepared by a
qualified
third party and provided to the client or customer.
(4) A licensee shall disclose to the client or customer any
facts known
by the licensee that contradict any information included in a
written re-
port described in subsection (d)(3).
(5) In performing an investigation or inspection and in making a
dis-
closure in connection with a real estate transaction, a licensee
shall ex-
ercise the degree of care expected to be exercised by a reasonably
prudent
person who has the knowledge, skills and training required for
licensure
as a broker or salesperson.
For purpose of this subsection, ``qualified third party'' means
a federal,
state or local governmental agency or any person whom the broker,
af-
filiated licensee or a party to the real estate transaction
reasonably be-
lieves has the expertise necessary to meet the industry standards
of prac-
tice for the type of inspection or investigation that has been
conducted
by the third party in order to prepare the written report.
Ch. 65 1997 Session Laws of Kansas 257
(e) A seller's or landlord's agent may show alternative
properties not
owned by the client to prospective buyers or tenants and may list
com-
peting properties for sale or lease without breaching any duty or
obliga-
tion to the client.
(f) A seller or landlord may agree in writing with a seller's or
land-
lord's agent that the broker may offer subagency and pay
compensation
to other brokers.
(g) A seller or landlord may agree in writing with a seller's or
land-
lord's agent that the broker may offer to cooperate with a buyer's
or
tenant's agent or to cooperate with and pay compensation to a
buyer's or
tenant's agent.
(h) If the seller or landlord has authorized the broker to offer
coop-
eration with other licensees pursuant to subsection (f) or (g), the
broker
shall not refuse permission to another licensee to show, or to
present an
offer to purchase, a listed property unless specifically instructed
by the
seller in writing. The broker shall provide a copy of the written
instruc-
tions to another licensee upon request.
(i) A seller's or landlord's agent shall not be liable for
punitive or
exemplary damages for the licensee's failure to perform any of the
duties
set forth in this section, unless such failure is shown by clear
and con-
vincing evidence that the licensee acted toward the plaintiff with
willful
conduct, wanton conduct, fraud or malice.
Sec. 33. On and after October 1, 1997, K.S.A. 1996 Supp.
58-30,106,
as revived by section 32 of this act, is hereby amended to read as
follows:
58-30,106. (a) A seller's agent or a landlord's agent shall be a
statutory
agent with the duty and obligation to:
(1) Perform the terms of the written agreement made with the
client;
(2) exercise reasonable skill and care for the
client;
(3) promote the interests of the client with
the utmost good faith,
loyalty and fidelity, including:
(A) Seeking a price and terms which are acceptable to
the client,
except that an agency agreement with a seller may provide that the
broker
shall not be obligated to continue to market the property after an
offer
has been accepted by the seller;
(B) presenting, in a timely
manner, all written
offers, counteroffers to and from the client, when
such offer is received
and back-up offers
prior to the closing of the sale unless the seller instructs the
broker in the
agency agreement not to submit offers after an offer has been
accepted
by the seller;
(C) (B) disclosing to the client all
adverse material facts actually
known by the licensee about the buyer or tenant; and
(D) (C) advising the client to obtain
expert advice as to material mat-
ters about which the licensee knows but the specifics of which are
beyond
the expertise of the licensee;
258 1997 Session Laws of Kansas Ch. 65
(4) (3) account in a timely manner for
all money and property re-
ceived;
(5) (4) comply with all requirements of
this act and rules and regu-
lations adopted hereunder; and
(6) (5) comply with any applicable
federal, state and local laws, rules
and regulations and ordinances, including fair housing and civil
rights
statutes and rules and regulations.
(b) If pursuant to subsection (a)(3)(D)
(a)(2)(C), the licensee advised
the client to obtain expert advice as to material matters about
which the
licensee knows but the specifics of which are beyond the expertise
of the
licensee, no cause of action for any person shall arise against the
licensee
pertaining to such material matters.
(c) A seller's or landlord's agent shall not disclose any
confidential
information about the client unless disclosure is required by
statute or
rule and regulation or failure to disclose the information would
constitute
fraudulent misrepresentation. No cause of action for any person
shall arise
against a licensee acting as a seller's or landlord's agent for
making any
required or permitted disclosure.
(d) (1) A seller's or landlord's agent owes no duty or
obligation to a
customer, except that a licensee shall disclose to any customer all
adverse
material facts actually known by the licensee, including but not
limited
to:
(A) Any environmental hazards affecting the property which are
re-
quired by law to be disclosed;
(B) the physical condition of the property;
(C) any material defects in the property;
(D) any material defects in the title to the property;
or
(E) any material limitation on the client's ability to perform
under
the terms of the contract.
(2) A seller's or landlord's agent owes no duty to conduct an
inde-
pendent inspection of the property for the benefit of the customer
and
owes no duty to independently verify the accuracy or completeness
of
any statement made by the client or any qualified third
party.
(3) Except as provided in subsection (d)(4), a seller's or
landlord's
agent is not required to disclose to a client or customer
information re-
lating to the physical condition of the property if a written
report regard-
ing the physical condition of the property has been prepared by a
qualified
third party and provided to the client or customer.
(4) A licensee seller's or landlord's
agent shall disclose to the client
or customer any facts actually known by the licensee that
were omitted
from or contradict any information included in a written report
described
in subsection (d)(3).
(5) In performing an investigation or inspection and in making a
dis-
closure in connection with a real estate transaction, a licensee
shall ex-
ercise the degree of care expected to be exercised by a reasonably
prudent
Ch. 65 1997 Session Laws of Kansas 259
person who has the knowledge, skills and training required for
licensure
as a broker or salesperson.
For purpose of this subsection, ``qualified third
party'' means a federal,
state or local governmental agency or any person whom the broker,
af-
filiated licensee or a party to the real estate transaction
reasonably be-
lieves has the expertise necessary to meet the industry standards
of prac-
tice for the type of inspection or investigation that has been
conducted
by the third party in order to prepare the written
report.
(e) A seller's or landlord's agent may provide assistance to
the cus-
tomer by performing ministerial acts. Performing ministerial acts
for the
customer shall not be construed as violating the brokerage firm's
agency
with the seller or landlord and shall not be construed as forming
an agency
with the customer.
(f) A seller's or landlord's agent may show alternative
properties not
owned by the client to prospective buyers or tenants and may list
com-
peting properties for sale or lease without breaching any duty or
obliga-
tion to the client.
(f) (g) A seller or landlord may agree
in writing with a seller's or
landlord's agent that the broker may offer subagency and pay
compen-
sation to other brokers.
(g) (h) A seller or landlord may agree
in writing with a seller's or
landlord's agent that the broker may offer to cooperate with a
buyer's or
tenant's agent or to cooperate with and pay compensation to a
buyer's or
tenant's agent.
(i) A seller or landlord may agree in writing with a seller's
or land-
lord's agent that the broker may offer to cooperate with a
transaction
broker or to cooperate with and pay compensation to a transaction
broker.
(h) (j) If the seller or landlord has
authorized the broker to offer
cooperation with other licensees pursuant to subsection (f)
or (g), (h) or
(i) the broker shall not refuse permission to another licensee
to show, or
a listed property
to present an offer to purchase, a listed property unless
or refuse to receive and transmit to the seller or landlord a
written offer
or a listed property from another licensee specifically
instructed by the
seller in writing. The broker shall provide a copy of the written
instruc-
tions to another licensee upon request.
(i) (k) A seller's or landlord's agent
shall not be liable for punitive or
exemplary damages for the licensee's failure to perform any of the
duties
set forth in this section, unless such failure is shown by clear
and con-
vincing evidence that the licensee acted toward the plaintiff with
willful
conduct, wanton conduct, fraud or malice.
Sec. 34. On and after July 1, 1997, K.S.A. 1996 Supp. 58-30,107
is
hereby revived to read as follows: 58-30,107. (a) A buyer's or a
tenant's
agent shall be a statutory agent with the following duty and
obligation to:
(1) Perform the terms of the written agreement made with the
client;
260 1997 Session Laws of Kansas Ch. 65
(2) exercise reasonable skill and care for the client;
(3) promote the interests of the client with the utmost good
faith,
loyalty and fidelity, including:
(A) Seeking a price and terms which are acceptable to the
client,
except that an agency agreement may provide that the licensee shall
not
be obligated to seek other properties after the client enters into
a pur-
chase contract;
(B) presenting, in a timely manner, all written offers,
counteroffers
and back-up offers to and from the client when such offer is
received
prior to the closing of the sale unless the buyer instructs the
broker in
the agency agreement not to submit offers after the client enters
into a
purchase contract;
(C) disclosing to the client all adverse material facts actually
known
by the licensee; and
(D) advising the client to obtain expert advice as to material
matters
about which the licensee knows but the specifics of which are
beyond the
expertise of the licensee;
(4) account in a timely manner for all money and property
received;
(5) comply with all requirements of this act and rules and
regulations
adopted hereunder; and
(6) comply with any applicable federal, state and local laws,
rules and
regulations and ordinances, including fair housing and civil rights
statutes
or rules and regulations.
(b) If pursuant to subsection (a)(3)(D), the licensee advised
the client
to obtain expert advice as to material matters about which the
licensee
knows but the specifics of which are beyond the expertise of the
licensee,
no cause of action for any person shall arise against the licensee
pertaining
to such material matters.
(c) A buyer's or tenant's agent shall not disclose any
confidential in-
formation about the client unless disclosure is required by statute
or rule
and regulation or failure to disclose the information would
constitute
fraudulent misrepresentation. No cause of action for any person
shall arise
against a licensee acting as a buyer's or tenant's agent for making
any
required or permitted disclosure.
(d) (1) A buyer's or tenant's agent owes no duty or obligation
to a
customer, except that the licensee shall disclose to any customer
all ad-
verse material facts actually known by the licensee, including but
not
limited to material facts concerning the client's financial ability
to perform
the terms of the transaction.
(2) A buyer's or tenant's agent owes no duty to conduct an
inde-
pendent investigation of the client's financial condition for the
benefit of
the customer and owes no duty to independently verify the accuracy
or
completeness of statements made by the client or any qualified
third
party.
(3) Except as provided in subsection (d)(4), a buyer's or
tenant's agent
Ch. 65 1997 Session Laws of Kansas 261
is not required to disclose to a client or customer information
relating to
the physical condition of the property if a written report
regarding the
physical condition of the property has been prepared by a qualified
third
party and provided to the client or customer.
(4) A licensee shall disclose to the client or customer any
facts known
by the licensee that contradict any information included in a
written re-
port described in subsection (d)(3).
(5) In performing an investigation or inspection and in making a
dis-
closure in connection with a real estate transaction, a licensee
shall ex-
ercise the degree of care expected to be exercised by a reasonably
prudent
person who has the knowledge, skills and training required for
licensure
as a broker or salesperson.
For purpose of this subsection, ``qualified third party'' means
a federal,
state or local governmental agency or any person whom the broker,
the
affiliated licensee or a party to the real estate transaction
reasonably be-
lieves has the expertise necessary to meet the industry standards
of prac-
tice for the type of inspection or investigation that has been
conducted
by the third party in order to prepare the written report.
(e) A buyer's or tenant's agent may show properties in which
the
client is interested to other prospective buyers or tenants without
breach-
ing any duty or obligation to the client. This subsection is
intended to
allow a buyer's or tenant's agent to show competing buyers or
tenants the
same property and to assist competing buyers or tenants in
attempting to
purchase or lease a particular property.
(f) Except as provided in subsection (e) of K.S.A. 1996 Supp.
58-
30,103, a licensee may not act as a buyer's agent on any property
shown
to the buyer while the licensee was acting as an agent or subagent
of the
seller without the written agreement of the seller. If the licensee
has
knowledge that another licensee affiliated with the broker showed
the
property to the buyer while acting as an agent or subagent of the
seller,
the licensee shall obtain the written agreement of the seller
before acting
as the buyer's agent.
(g) A buyer or tenant may agree in writing with a buyer's or
tenant's
agent that the agent may receive compensation from a seller's or
land-
lord's agent.
(h) A buyer's or tenant's agent shall not be liable for punitive
or ex-
emplary damages for the licensee's failure to perform any of the
duties
set forth in this section, unless such failure is shown by clear
and con-
vincing evidence that the licensee acted toward the plaintiff with
willful
conduct, wanton conduct, fraud or malice.
Sec. 35. On and after October 1, 1997, K.S.A. 1996 Supp.
58-30,107,
as revived by section 34 of this act, is hereby amended to read as
follows:
58-30,107. (a) A buyer's or a tenant's agent shall be a statutory
agent with
the following duty and obligation to:
262 1997 Session Laws of Kansas Ch. 65
(1) Perform the terms of the written agreement made with the
client;
(2) exercise reasonable skill and care for the
client;
(3) promote the interests of the client with
the utmost good faith,
loyalty and fidelity, including:
(A) Seeking a price and terms which are acceptable to
the client,
except that an agency agreement may provide that the licensee shall
not
be obligated to seek other properties after the client enters into
a pur-
chase contract;
(B) Presenting, in a timely
manner, all written offers,
counteroffers offers to and from the client when such offer
is received
and back-up
prior to the closing of the sale unless the buyer instructs the
broker in
the agency agreement not to submit offers after the client enters
into a
purchase contract;
(C) (B) disclosing to the client all
adverse material facts actually
known by the licensee; and
(D) (C) advising the client to obtain
expert advice as to material mat-
ters about which the licensee knows but the specifics of which are
beyond
the expertise of the licensee;
(4) (3) account in a timely manner for
all money and property re-
ceived;
(5) (4) comply with all requirements of
this act and rules and regu-
lations adopted hereunder; and
(6) (5) comply with any applicable
federal, state and local laws, rules
and regulations and ordinances, including fair housing and civil
rights
statutes or rules and regulations.
(b) If pursuant to subsection (a)(3)(D)
(a)(2)(C), the licensee advised
the client to obtain expert advice as to material matters about
which the
licensee knows but the specifics of which are beyond the expertise
of the
licensee, no cause of action for any person shall arise against the
licensee
pertaining to such material matters.
(c) A buyer's or tenant's agent shall not disclose any
confidential in-
formation about the client unless disclosure is required by statute
or rule
and regulation or failure to disclose the information would
constitute
fraudulent misrepresentation. No cause of action for any person
shall arise
against a licensee acting as a buyer's or tenant's agent for making
any
required or permitted disclosure.
(d) (1) A buyer's or tenant's agent owes no duty or obligation
to a
customer, except that the licensee shall disclose to any customer
all ad-
verse material facts actually known by the licensee, including but
not
limited to material facts concerning the client's financial ability
to perform
the terms of the transaction.
(2) A buyer's or tenant's agent owes no duty to conduct an
inde-
pendent investigation of the client's financial condition for the
benefit of
the customer and owes no duty to independently verify the accuracy
or
Ch. 65 1997 Session Laws of Kansas 263
completeness of statements made by the client or any qualified
third
party.
(3) Except as provided in subsection (d)(4), a buyer's or
tenant's agent
is not required to disclose to a client or customer information
relating to
the physical condition of the property if a written report
regarding the
physical condition of the property has been prepared by a qualified
third
party and provided to the client or customer.
(4) A licensee buyer's or tenant's agent
shall disclose to the client or
customer any facts actually known by the licensee that
were omitted from
or contradict any information included in a written report
described in
subsection (d)(3).
(5) In performing an investigation or inspection and in making a
dis-
closure in connection with a real estate transaction, a licensee
shall ex-
ercise the degree of care expected to be exercised by a reasonably
prudent
person who has the knowledge, skills and training required for
licensure
as a broker or salesperson.
For purpose of this subsection, ``qualified third
party'' means a federal,
state or local governmental agency or any person whom the broker,
the
affiliated licensee or a party to the real estate transaction
reasonably be-
lieves has the expertise necessary to meet the industry standards
of prac-
tice for the type of inspection or investigation that has been
conducted
by the third party in order to prepare the written
report.
(e) A buyer's or tenant's agent may provide assistance to the
seller or
landlord by performing ministerial acts. Performing ministerial
acts for
the seller or landlord shall not be construed as violating the
brokerage
firm's agency with the buyer or tenant and shall not be construed
as
forming an agency with the seller or landlord.
(f) A buyer's or tenant's agent may show properties in
which the client
is interested to other prospective buyers or tenants without
breaching any
duty or obligation to the client. This subsection is intended to
allow a
buyer's or tenant's agent to show competing buyers or tenants the
same
property and to assist competing buyers or tenants in attempting to
pur-
chase or lease a particular property.
(f) Except as provided in subsection (e) of K.S.A. 1996
Supp. 58-
30,103, a licensee may not act as a buyer's agent on any property
shown
to the buyer while the licensee was acting as an agent or subagent
of the
seller without the written agreement of the seller. If the licensee
has
knowledge that another licensee affiliated with the broker showed
the
property to the buyer while acting as an agent or subagent of the
seller,
the licensee shall obtain the written agreement of the seller
before acting
as the buyer's agent.
(g) A buyer or tenant may agree in writing with a buyer's or
tenant's
agent that the agent may receive compensation from a seller's or
land-
lord's agent or from a transaction broker.
(h) A buyer's or tenant's agent shall not be liable for punitive
or ex-
264 1997 Session Laws of Kansas Ch. 65
emplary damages for the licensee's failure to perform any of the
duties
set forth in this section, unless such failure is shown by clear
and con-
vincing evidence that the licensee acted toward the plaintiff with
willful
conduct, wanton conduct, fraud or malice.
Sec. 36. On and after July 1, 1997, K.S.A. 1996 Supp. 58-30,108
is
hereby revived to read as follows: 58-30,108. (a) (1) A licensee
may act
as a dual agent only with the informed consent of all parties to
the trans-
action. The informed consent shall be evidenced by a dual agency
consent
agreement which shall include, at a minimum, the duties and
obligations
included in this section.
(2) If, pursuant to subsections (g) and (h) of K.S.A. 1996 Supp.
58-
30,103, the agency agreements include a potential for the seller's
or land-
lord's agent and the buyer's or tenant's agent to act as a
disclosed dual
agent, the dual agency consent agreement shall be signed by the
buyer
or the tenant no later than the first showing of the property and
by the
seller or the landlord no later than the presentation of the offer
to pur-
chase or lease. If the agency agreements did not include a
potential for
the seller's or landlord's agent and the buyer's or tenant's agent
to act as
a disclosed dual agent, the dual agency consent agreement shall be
signed
by the buyer and seller or the tenant and landlord prior to the
first show-
ing of the property.
(b) A disclosed dual agent shall be a statutory agent for both
the seller
and buyer or the landlord and tenant.
(c) A disclosed dual agent shall not represent the interest of
either
the buyer or the seller or the tenant or the landlord to the
detriment of
the other. The buyer and seller or the tenant and landlord shall
have the
responsibility of determining the price they will pay or accept,
and they
may rely on information provided by the disclosed dual agent. The
broker
shall cease to serve as either seller's or buyer's or landlord's or
tenant's
sole and exclusive agent.
(d) The following information shall not be disclosed by a
disclosed
dual agent without the informed consent of the client to whom the
in-
formation pertains:
(A) That a buyer or tenant is willing to pay more than the
purchase
price or lease rate offered for the property;
(B) that a seller or landlord is willing to accept less than the
asking
price or lease rate for the property;
(C) what the motivating factors are for any client's buying,
selling or
leasing the property; or
(D) that a client will agree to financing terms other than those
of-
fered.
(e) A disclosed dual agent shall not disclose to one client any
confi-
dential information or personal confidences about the other client
which
might place one party at an advantage over the other party unless
the
Ch. 65 1997 Session Laws of Kansas 265
disclosure is required by statute or rule and regulation or
failure to dis-
close the information would constitute fraudulent
misrepresentation.
(f) No cause of action for any person shall arise against a
disclosed
dual agent for making any required or permitted disclosure.
(g) By making any required or permitted disclosure, a disclosed
dual
agent does not terminate the dual agency relationship.
(h) In a dual agency relationship, there shall be no imputation
of
knowledge or information between any client and the disclosed dual
agent
or among licensees within the brokerage firm engaged as a dual
agent.
(i) In any transaction, a broker may without liability withdraw
from
representing a client if either client does not consent to a
disclosed dual
agency. Such withdrawal shall not prejudice the ability of the
broker to
continue to represent the other client in the transaction, nor
limit the
broker from representing the client in other transactions not
involving a
dual agency. Such withdrawal shall not limit the ability of the
broker to
receive a referral fee for referring a client to a broker of a
different bro-
kerage firm.
Sec. 37. On and after July 1, 1997, K.S.A. 1996 Supp. 58-30,109
is
hereby revived to read as follows: 58-30,109. (a) A broker may
personally,
or through the broker's duly authorized licensed representative,
specifi-
cally designate, in a written buyer agency agreement obtained
pursuant
to K.S.A. 1996 Supp. 58-30,103, an affiliated licensee who will be
acting
as legal agent of the buyer client to the exclusion of all other
affiliated
licensees. After verbal notice has been given to the buyer client,
another
affiliated licensee may be temporarily appointed as a designated
agent.
(b) With the exception of a property listed by the designated
agent,
a designated agent shall not act as an agent of any owner of
property listed
with the broker when representing a specific buyer client.
(c) If a designated agent also acts as agent of the seller of
property
listed by the designated agent, the agent and the broker shall be
disclosed
dual agents pursuant to K.S.A. 1996 Supp. 58-30,108.
(d) If the broker performs any duty or obligation set forth in
subsec-
tion (a)(3) of K.S.A. 1996 Supp. 58-30,106, the broker and the
designated
agent or agents shall be disclosed dual agents pursuant to K.S.A.
1996
Supp. 58-30,108.
(e) The broker shall not be considered to be acting for more
than
one party in the transaction provided that the broker is not a
disclosed
dual agent pursuant to subsection (c) or (d).
(f) Unless acting as a disclosed dual agent pursuant to
subsection (c)
or (d), a designated agent shall not be considered a dual agent nor
shall
the licensee be liable for acting as an undisclosed dual agent
merely by
performing licensed services in accordance with the provisions of
this
section.
Sec. 38. On and after October 1, 1997, K.S.A. 1996 Supp.
58-30,109,
266 1997 Session Laws of Kansas Ch. 65
as revived by section 37 of this act, is hereby amended to read
as follows:
58-30,109. (a) In the absence of designated agents appointed
pursuant to
subsection (b), a brokerage firm may act as a transaction broker
pursuant
to section 1, and amendments thereto, on an in-house transaction
with
the informed consent of the seller client and the buyer client. The
informed
consent shall be evidenced by a transaction broker addendum to
the
agency agreements and shall be signed by the buyer prior to writing
the
offer and by the seller prior to signing the contract.
(b) (1) A broker may personally, or through the broker's
duly au-
thorized licensed representative, specifically designate, in a
written buyer
agency agreement obtained pursuant to K.S.A. 1996 Supp. 58-30,103,
an and amendments thereto, one or more
affiliated licens-
affiliated licensee
ees who will be acting as legal agent of the buyer client or
seller client to
the exclusion of all other affiliated licensees. After
verbal notice has been
given to the buyer client, another affiliated licensee may be
temporarily
appointed as a designated agent.
(b) With the exception of a property listed by the
designated agent,
a designated agent shall not act as an agent of any owner of
property listed
with the broker when representing a specific buyer
client.
(c) If a designated agent also acts as agent of the
seller of property
listed by the designated agent, the agent and the broker shall be
disclosed
dual agents pursuant to K.S.A. 1996 Supp.
58-30,108.
(d) If the broker performs any duty or obligation set
forth in subsec-
tion (a)(3) of K.S.A. 1996 Supp. 58-30,106, the broker and the
designated
agent or agents shall be disclosed dual agents pursuant to K.S.A.
1996
Supp. 58-30,108.
(e) The broker shall not be considered to be acting for
more than
one party in the transaction provided that the broker is not a
disclosed
dual agent pursuant to subsection (c) or (d).
(f) Unless acting as a disclosed dual agent pursuant to
subsection (c)
or (d), a designated agent shall not be considered a dual agent nor
shall
the licensee be liable for acting as an undisclosed dual agent
merely by
performing licensed services in accordance with the provisions of
this
section.
(2) If a buyer client of a designated agent wants to see a
property
which was personally listed by the broker, the broker, with the
written
consent of the seller, may specifically designate an affiliated
licensee who
will act as legal agent of the seller client to the exclusion of
all other
affiliated licensees. The written consent of the seller shall
contain the name
of the prospective buyer and shall acknowledge that the broker
shall act
as a transaction broker regarding any transaction with the buyer.
The
written consent of the seller shall be signed prior to presentation
of any
offer.
(3) A designated agent of a seller client shall have the
duties and
obligations set forth in K.S.A. 58-30,106, and amendments thereto.
A des-
Ch. 65 1997 Session Laws of Kansas 267
ignated agent of a buyer client shall have the duties and
obligations set
forth in K.S.A. 58-30,107, and amendments thereto.
(4) In any transaction involving a designated agent, the
supervising
broker of the designated agent shall act as a transaction broker
pursuant
to section 1, and amendments thereto, unless both buyer and seller
are
represented by designated agents and the designated agents are
super-
vised by the same branch broker. In that case, the branch broker
shall
act as a transaction broker pursuant to section 1, and
amendments
thereto. The supervising broker, or branch broker if applicable,
may ap-
point an affiliated licensee to act in the transaction as a
transaction broker
pursuant to section 1, and amendments thereto.
(5) A designated agent may disclose to the designated agent's
super-
vising broker, or branch broker if applicable, and to an affiliated
licensee
appointed as a transaction broker pursuant to paragraph (4),
confidential
information of a client for the purpose of seeking advice or
assistance for
the benefit of the client in regard to a transaction.
(6) If a buyer client of a designated agent wants to see a
property
owned by a seller client of the designated agent, the designated
agent may
act as a transaction broker pursuant to section 1, and
amendments
thereto, with the informed consent of the seller client and buyer
client.
The informed consent shall be evidenced by a transaction broker
adden-
dum to the agency agreements and shall be signed by the buyer prior
to
writing the offer and by the seller prior to signing the
contract.
(c) The commission, by rules and regulations, shall adopt a
transac-
tion broker addendum form to be used by licensees pursuant to this
sec-
tion.
Sec. 39. On and after July 1, 1997, K.S.A. 1996 Supp. 58-30,110
is
hereby revived to read as follows: 58-30,110. (a) (1) The
commission shall
adopt a rule and regulation prescribing the language which shall be
in-
cluded in a form entitled ``Disclosure of alternative agency
relationships''.
(2) At the discretion of the broker, the disclosure of
alternative
agency relationships form may be either a separate document or may
be
contained in the agency agreement with the client.
(3) Except as provided in subsection (a)(4), a licensee shall
furnish a
prospective buyer or seller with a copy of the disclosure of
alternative
agency relationships form at the first occurrence of either of the
following
events regarding real estate transactions:
(A) A face-to-face meeting with the prospective buyer or seller;
or
(B) a written communication from the licensee.
The licensee shall note the furnishing of a copy of the
disclosure on
the contract.
(4) A licensee is not required to provide a copy of the form to
a
prospective buyer or seller in the following instances:
268 1997 Session Laws of Kansas Ch. 65
(A) The licensee is acting solely as a principal and not as an
agent for
another;
(B) the written communication from the licensee is a
solicitation of
business;
(C) the face-to-face meeting occurs at an open house and there
is no
substantive discussion regarding a transaction; or
(D) the face-to-face meeting is a mere solicitation of business
and
there is no substantive discussion regarding a transaction.
(b) (1) Except for instances when a licensee is providing
information
through an advertisement or other form of public notice of the
licensee's
representation of a client, a licensee representing a client in a
proposed
real estate transaction shall disclose the representation at the
time of
every contact with another licensee representing the other party.
The
disclosure may be made orally or in writing.
(2) Each time a licensee is contacted by another licensee who
re-
quests permission to show property to a prospective buyer, the
licensee
shall inquire whether or not the licensee represents the
buyer.
(c) The disclosure of the agency relationship between all
licensees
involved and the seller and buyer shall be included in any contract
for
sale and in any lot reservation agreement.
Sec. 40. On and after October 1, 1997, K.S.A. 1996 Supp.
58-30,110,
as revived by section 39 of this act, is hereby amended to read as
follows:
58-30,110. (a) (1) The commission shall adopt a rule and regulation
pre-
scribing the language which shall be
included in a form entitled ``Disclo- describes a
seller's agent, a
sure of alternative agency relationships''
buyer's agent and a transaction broker for inclusion in a brochure
entitled
``real estate brokerage relationships''.
(2) At the discretion of the broker, the disclosure of
alternative
agency relationships form may be either a separate document or may
be
contained in the agency agreement with the client.
(3) Except as provided in subsection
(a)(4) (a)(3), a licensee shall
furnish a prospective buyer or seller with a copy of the
disclosure of
alternative agency relationships form at the first occurrence of
either of
the following events regarding real estate
transactions:
(A) A face-to-face meeting with the prospective buyer or
seller; or
(B) a written communication from the
licensee.
The licensee shall note the furnishing of a copy of the
disclosure on the brochure at the first practical
opportunity.
the contract
(4) (3) A licensee is not required to
provide a copy of the form bro-
chure to a prospective buyer or seller in the following
instances:
(A) The licensee is acting solely as a principal and not as an
agent for
another;
(B) the written communication from the licensee
is a solicitation of
business;
Ch. 65 1997 Session Laws of Kansas 269
(C) the face-to-face meeting occurs at an open house and
there is no
transaction is regarding
substantive discussion regarding a transaction; or
the sale of commercial property or the sale of residential property
of more
than four units;
(D) the face-to-face meeting is a mere solicitation of
business and transaction is
there is no substantive discussion regarding a
transaction.
regarding the sale of property by public auction;
(E) the licensee is only performing ministerial acts;
or
(F) the customer or client has already received the brochure
from the
licensee's brokerage firm.
(4) Acknowledgment of receipt of the brochure by the seller
and buyer
shall be included in any contract for sale.
(b) (1) Except for instances when a licensee is providing
information
through an advertisement or other form of public notice of the
licensee's
representation of a client, a licensee representing a client in a
proposed
real estate transaction shall disclose the representation at the
time of
every the initial contact with another
licensee representing the other
party. The disclosure may be made orally or in writing.
(2) Each time a licensee is contacted by another licensee who
re-
quests permission to show property to a prospective buyer, the
licensee
shall inquire whether or not the licensee represents the
buyer.
(c) The disclosure of the agency
brokerage relationship between all
licensees involved and the seller and buyer shall be included in
any con-
tract for sale and in any lot reservation agreement.
Sec. 41. On and after July 1, 1997, K.S.A. 1996 Supp. 58-30,111
is
hereby revived to read as follows: 58-30,111. (a) A client shall
not be
liable for a misrepresentation of the client's statutory agent
arising out of
the agency agreement unless the client knew of the
misrepresentation.
(b) A statutory agent shall not be liable for a
misrepresentation of the
agent's client arising out of the agency agreement unless the
licensee
knew of the misrepresentation.
(c) A statutory agent shall not be liable for an innocent
misrepresen-
tation in information provided to the seller or landlord or to the
buyer or
tenant if the licensee does not have personal knowledge of the
error,
inaccuracy or omission that is the basis for the
misrepresentation.
Sec. 42. On and after October 1, 1997, K.S.A. 1996 Supp.
58-30,111,
as revived by section 41 of this act, is hereby amended to read as
follows:
58-30,111. (a) A client or customer shall not be liable for
a misrepresen-
tation of or omission by the client's
statutory agent or the transaction
broker arising out of the agency or transaction broker
agreement unless
the client or customer knew of the misrepresentation or
omission.
(b) A statutory agent or transaction broker shall not be
liable for a
misrepresentation of or omission by the
agent's client or the transaction
270 1997 Session Laws of Kansas Ch. 65
broker's customer arising out of the agency or
transaction broker agree-
ment unless the licensee knew of the misrepresentation or
omission.
(c) A statutory agent or transaction broker shall not be
liable for an
innocent or negligent misrepresentation in information
provided to the
seller or landlord or to the buyer or tenant if the licensee does
not have
personal knowledge of the error, inaccuracy or omission that is the
basis
for the claim of misrepresentation.
Sec. 43. On and after July 1, 1997, K.S.A. 1996 Supp. 58-30,112
is
hereby revived to read as follows: 58-30,112. The commission shall
pro-
vide suggested forms of agency agreements and, by rules and
regulations,
provide such other prohibitions, limitations and conditions
relating
thereto as the commission may prescribe.
Sec. 44. On and after October 1, 1997, K.S.A. 1996 Supp.
58-30,112,
as revived by section 43 of this act, is hereby amended to read as
follows:
58-30,112. The commission shall provide suggested
sample forms of
agency agreements and, by rules and regulations, provide such other
pro-
hibitions, limitations and conditions relating thereto as the
commission
may prescribe.
Sec. 45. On and after July 1, 1997, K.S.A. 1996 Supp. 74-4202
is
hereby revived to read as follows: 74-4202. (a) Within 30 days
after the
appointment of the members to be regularly appointed within any
year,
the commission shall meet in the city of Topeka for the purpose of
or-
ganizing by selecting from its membership a chairperson and such
other
officers as the commission may deem necessary and appropriate. A
ma-
jority of the members of the commission shall constitute a quorum
for
the exercise of the powers or authority conferred upon it.
(b) The commission shall receive applications for, and issue
licenses
to, brokers and salespersons, as provided in this act and shall
administer
the provisions of this act and the brokerage relationships in real
estate
transactions act, as such act governs the sale or lease of real
estate that is
one to four residential units. The commission may do all things
necessary
and convenient for carrying into effect the provisions of the acts
and may
adopt rules and regulations not inconsistent with the acts. For the
purpose
of the acts, the commission shall make all necessary
investigations, and
every licensee shall furnish to the commission such evidence as the
li-
censee may have as to any violation the acts or any rules and
regulations
adopted under the acts. The commission may enforce any order by
an
action in the district court of the county where the alleged
violator resides
or where the violation allegedly occurred.
(c) Each member of the commission shall be paid compensation,
sub-
sistence allowances, mileage and other expenses as provided in
K.S.A. 75-
3223 and amendments thereto.
(d) The commission shall hold meetings and hearings in the city
of
Ch. 65 1997 Session Laws of Kansas 271
Topeka or at such places as it shall determine at such times as
it may
designate and on request of two or more of its members.
(e) The commission shall maintain an office in the city of
Topeka,
and all files, records and property of the commission shall at all
times be
and remain therein.
(f) The commission shall adopt a seal by which it shall attest
its pro-
ceedings. Copies of all records and papers required by law or the
com-
mission to be filed in the office of the commission, when duly
certified
by the director, assistant director or chairperson of the
commission and
attested by the seal of the commission, shall be received in
evidence in
all courts of the state of Kansas equally and with like effect as
the originals.
Sec. 46. On and after October 1, 1997, K.S.A. 1996 Supp.
74-4202,
as revived by section 45 of this act, is hereby amended to read as
follows:
74-4202. (a) Within 30 days after the appointment of the members to
be
regularly appointed within any year, the commission shall meet in
the city
of Topeka for the purpose of organizing by selecting from its
membership
a chairperson and such other officers as the commission may deem
nec-
essary and appropriate. A majority of the members of the
commission
shall constitute a quorum for the exercise of the powers or
authority
conferred upon it.
(b) The commission shall receive applications for, and issue
licenses
to, brokers and salespersons, as provided in this act and shall
administer
the provisions of this act and the brokerage relationships in real
estate
transactions act, as such act governs the sale or lease of
real estate that is. The commission may do all
things necessary
one to four residential units
and convenient for carrying into effect the provisions of the acts
and may
adopt rules and regulations not inconsistent with the acts. For the
purpose
of the acts, the commission shall make all necessary
investigations, and
every licensee shall furnish to the commission such evidence as the
li-
censee may have as to any violation the acts or any rules and
regulations
adopted under the acts. The commission may enforce any order by
an
action in the district court of the county where the alleged
violator resides
or where the violation allegedly occurred.
(c) Each member of the commission shall be paid compensation,
sub-
sistence allowances, mileage and other expenses as provided in
K.S.A. 75-
3223 and amendments thereto.
(d) The commission shall hold meetings and hearings in the city
of
Topeka or at such places as it shall determine at such times as it
may
designate and on request of two or more of its members.
(e) The commission shall maintain an office in the city of
Topeka,
and all files, records and property of the commission shall at all
times be
and remain therein.
(f) The commission shall adopt a seal by which it shall attest
its pro-
ceedings. Copies of all records and papers required by law or the
com-
272 1997 Session Laws of Kansas Ch. 65
mission to be filed in the office of the commission, when duly
certified
by the director, assistant director or chairperson of the
commission and
attested by the seal of the commission, shall be received in
evidence in
all courts of the state of Kansas equally and with like effect as
the originals.
Sec. 47. On and after July 1, 1997, K.S.A. 1995 Supp. 58-3035,
as
amended by section 20 of chapter 212 of the 1996 Session Laws of
Kansas,
58-3050, as amended by section 12 of chapter 212 of the 1996
Session
Laws of Kansas, 58-3062, as amended by section 13 of chapter 212 of
the
1996 Session Laws of Kansas, 58-3064, as amended by section 14 of
chap-
ter 212 of the 1996 Session Laws of Kansas, 58-3065, as amended
by
section 15 of chapter 212 of the 1996 Session Laws of Kansas,
58-3068,
as amended by section 16 of chapter 212 of the 1996 Session Laws
of
Kansas, 74-4202, as amended by section 17 of chapter 212 of the
1996
Session Laws of Kansas, and K.S.A. 1996 Supp. 58-30,101, as revived
by
section 22 of this act, and 74-4209 are hereby repealed.
Sec. 48. On and after October 1, 1997, K.S.A. 17-2707, 58-3045
and
58-3063 and K.S.A. 1996 Supp. 58-3035, as revived by section 3 of
this
act, 58-3036, 58-3037, 58-3039, 58-3042, 58-3046a, 58-3050, as
revived
by section 11 of this act, 58-3062, as revived by section 13 of
this act, 58-
3064, as revived by section 16 of this act, 58-3065, as revived by
section
18 of this act, 58-3068, as revived by section 20 of this act,
58-30,101, as
amended by section 22 of this act, 58-30,102, as revived by section
24 of
this act, 58-30,103, as revived by section 26 of this act,
58-30,104, as
revived by section 28 of this act, 58-30,105, as revived by section
30 of
this act, 58-30,106, as revived by section 32 of this act,
58-30,107, as
revived by section 34 of this act, 58-30,108, as revived by section
36 of
this act, 58-30,109, as revived by section 37 of this act,
58-30,110, as
revived by section 39 of this act, 58-30,111, as revived by section
41 of
this act, 58-30,112, as revived by section 43 of this act, and
74-4202, as
revived by section 45 of this act, are hereby repealed.
Sec. 49. This act shall take effect and be in force from and
after its
publication in the statute book.
Approved April 7, 1997.