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91_HB0902
LRB9104235LDmbA
1 AN ACT concerning real estate, amending named Acts.
2 Be it enacted by the People of the State of Illinois,
3 represented in the General Assembly:
4 ARTICLE 1. GENERAL PROVISIONS
5 Section 1-1. Short title; Act supersedes Real Estate
6 License Act of 1983. This Act shall be known and may be cited
7 as the Real Estate License Act of 1999, and it shall
8 supersede the Real Estate License Act of 1983 repealed by
9 this Act.
10 Section 1-5. Legislative intent. The intent of the
11 General Assembly in enacting this statute is to evaluate the
12 competency of persons engaged in the real estate business and
13 to regulate this business for the protection of the public.
14 Section 1-10. Definitions. In this Act, unless the
15 context otherwise requires:
16 "Act" means the Real Estate License Act of 1999.
17 "Advisory Council" means the Real Estate Education
18 Advisory Council created under Section 30-10 of this Act.
19 "Agency" means a relationship in which a real estate
20 broker or licensee, whether directly or through an affiliated
21 licensee, represents a consumer by the consumer's consent,
22 whether express or implied, in a real property transaction.
23 "Applicant" means any person, as defined in this Section,
24 who applies to OBRE for a valid license as a real estate
25 broker, real estate salesperson, or leasing agent.
26 "Blind advertisement" means any real estate advertisement
27 that does not include the sponsoring broker's business name
28 and that is used by any licensee regarding the sale or lease
29 of real estate, including his or her own, licensed
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1 activities, or the hiring of any licensee under this Act.
2 The broker's business name in the case of a franchise shall
3 include the franchise affiliation as well as the name of the
4 individual firm.
5 "Board" means the Real Estate Administration and
6 Disciplinary Board of OBRE.
7 "Branch office" means a sponsoring broker's office other
8 than the sponsoring broker's principal office.
9 "Broker" means an individual, partnership, limited
10 liability company, corporation, or registered limited
11 liability partnership other than a real estate salesperson or
12 leasing agent who for another and for compensation either
13 directly or indirectly:
14 (1) Sells, exchanges, purchases, rents, or leases
15 real estate.
16 (2) Offers to sell, exchange, purchase, rent, or
17 lease real estate.
18 (3) Negotiates, offers, attempts, or agrees to
19 negotiate the sale, exchange, purchase, rental, or
20 leasing of real estate.
21 (4) Lists, offers, attempts, or agrees to list real
22 estate for sale, lease, or exchange.
23 (5) Buys, sells, offers to buy or sell, or
24 otherwise deals in options on real estate or improvements
25 thereon.
26 (6) Supervises the collection, offer, attempt, or
27 agreement to collect rent for the use of real estate.
28 (7) Advertises or represents himself or herself as
29 being engaged in the business of buying, selling,
30 exchanging, renting, or leasing real estate.
31 (8) Assists or directs in procuring or referring of
32 prospects, intended to result in the sale, exchange,
33 lease, or rental of real estate.
34 (9) Assists or directs in the negotiation of any
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1 transaction intended to result in the sale, exchange,
2 lease, or rental of real estate.
3 (10) Opens real estate to the public for marketing
4 purposes.
5 "Brokerage agreement" means a written or oral agreement
6 between a sponsoring broker and a consumer for licensed
7 activities to be provided to a consumer in return for
8 compensation or the right to receive compensation from
9 another. Brokerage agreements may constitute either a
10 bilateral or a unilateral agreement between the broker and
11 the broker's client depending upon the content of the
12 brokerage agreement. All exclusive brokerage agreements shall
13 be in writing.
14 "Client" means a person who is being represented by a
15 licensee.
16 "Commissioner" means the Commissioner of Banks and Real
17 Estate or a person authorized by the Commissioner, the Office
18 of Banks and Real Estate Act, or this Act to act in the
19 Commissioner's stead.
20 "Compensation" means the valuable consideration given by
21 one person or entity to another person or entity in exchange
22 for the performance of some activity or service.
23 Compensation shall include the transfer of valuable
24 consideration, including without limitation the following:
25 (1) commissions;
26 (2) referral fees;
27 (3) bonuses;
28 (4) prizes;
29 (5) merchandise;
30 (6) finder fees;
31 (7) performance of services;
32 (8) coupons or gift certificates;
33 (9) discounts;
34 (10) rebates;
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1 (11) a chance to win a raffle, drawing, lottery, or
2 similar game of chance not prohibited by any other law or
3 statute;
4 (12) retainer fee; or
5 (13) salary.
6 "Confidential information" means information obtained by
7 a licensee from a client during the term of a brokerage
8 agreement that (i) was made confidential by the written
9 request or written instruction of the client, (ii) deals with
10 the negotiating position of the client, or (iii) is
11 information the disclosure of which could materially harm the
12 negotiating position of the client, unless at any time:
13 (1) the client permits the disclosure of
14 information given by that client by word or conduct;
15 (2) the disclosure is required by law; or
16 (3) the information becomes public from a source
17 other than the licensee.
18 "Confidential information" shall not be considered to
19 include material information about the physical condition of
20 the property.
21 "Consumer" means a person or entity seeking or receiving
22 licensed activities.
23 "Continuing education school" means any person licensed
24 by OBRE as a school for continuing education in accordance
25 with Section 30-15 of this Act.
26 "Credit hour" means 50 minutes of classroom instruction
27 in course work that meets the requirements set forth in rules
28 adopted by OBRE.
29 "Customer" means a consumer who is not being represented
30 by the licensee but for whom the licensee is performing
31 ministerial acts.
32 "Designated agency" means a contractual relationship
33 between a sponsoring broker and a client under Section 15-50
34 of this Act in which one or more licensees associated with or
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1 employed by the broker are designated as agent of the client.
2 "Designated agent" means a sponsored licensee named by a
3 sponsoring broker as the legal agent of a client, as provided
4 for in Section 15-50 of this Act.
5 "Director" means the Director of the Real Estate
6 Division, OBRE.
7 "Dual agency" means an agency relationship in which a
8 licensee is representing both buyer and seller or both
9 landlord and tenant in the same transaction. When the agency
10 relationship is a designated agency, the question of whether
11 there is a dual agency shall be determined by the agency
12 relationships of the designated agent of the parties and not
13 of the sponsoring broker.
14 "Employee" or other derivative of the word "employee",
15 when used to refer to, describe, or delineate the
16 relationship between a real estate broker and a real estate
17 salesperson, another real estate broker, or a leasing agent,
18 shall be construed to include an independent contractor
19 relationship, provided that a written agreement exists that
20 clearly establishes and states the relationship. All
21 responsibilities of a broker shall remain.
22 "Escrow moneys" means all moneys, promissory notes or any
23 other type or manner of legal tender or financial
24 consideration deposited with any person for the benefit of
25 the parties to the transaction. A transaction exists once an
26 agreement has been reached and an accepted real estate
27 contract signed or lease agreed to by the parties. Escrow
28 moneys includes without limitation earnest moneys and
29 security deposits, except those security deposits in which
30 the person holding the security deposit is also the sole
31 owner of the property being leased and for which the security
32 deposit is being held.
33 "Inoperative" means a status of licensure where the
34 licensee holds a current license under this Act, but the
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1 licensee is prohibited from engaging in licensed activities
2 because the licensee is unsponsored or the license of the
3 sponsoring broker with whom the licensee is associated or by
4 whom he or she is employed is currently expired, revoked,
5 suspended, or otherwise rendered invalid under this Act.
6 "Leasing Agent" means a person who is employed by a real
7 estate broker to engage in licensed activities limited to
8 leasing residential real estate who has obtained a license as
9 provided for in Section 5-5 of this Act.
10 "License" means the document issued by OBRE certifying
11 that the person named thereon has fulfilled all requirements
12 prerequisite to licensure under this Act.
13 "Licensed activities" means those activities listed in
14 the definition of "broker" under this Section.
15 "Licensee" means any person, as defined in this Section,
16 who holds a valid unexpired license as a real estate broker,
17 real estate salesperson, or leasing agent.
18 "Listing presentation" means a communication between a
19 real estate broker or salesperson and a consumer in which the
20 licensee is attempting to secure a brokerage agreement with
21 the consumer to market the consumer's real estate for sale or
22 lease.
23 "Managing broker" means a broker who has supervisory
24 responsibilities for licensees in one or, in the case of a
25 multi-office company, more than one office and who has been
26 appointed as such by the sponsoring broker of the real estate
27 firm.
28 "Medium of advertising" means any method of communication
29 intended to influence the general public to use or purchase a
30 particular good or service or real estate.
31 "Ministerial acts" means those acts that a licensee may
32 perform for a consumer that are informative or clerical in
33 nature and do not rise to the level of active representation
34 on behalf of a consumer. Examples of these acts include
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1 without limitation (i) responding to phone inquiries by
2 consumers as to the availability and pricing of brokerage
3 services, (ii) responding to phone inquiries from a consumer
4 concerning the price or location of property, (iii) attending
5 an open house and responding to questions about the property
6 from a consumer, (iv) setting an appointment to view
7 property, (v) responding to questions of consumers walking
8 into a licensee's office concerning brokerage services
9 offered or particular properties, (vi) accompanying an
10 appraiser, inspector, contractor, or similar third party on a
11 visit to a property, (vii) describing a property or the
12 property's condition in response to a consumer's inquiry,
13 (viii) completing business or factual information for a
14 consumer on an offer or contract to purchase on behalf of a
15 client, (ix) showing a client through a property being sold
16 by an owner on his or her own behalf, or (x) referral to
17 another broker or service provider.
18 "OBRE" means the Office of Banks and Real Estate.
19 "Office" means a real estate broker's place of business
20 where the general public is invited to transact business and
21 where records may be maintained and licenses displayed,
22 whether or not it is the broker's principal place of
23 business.
24 "Person" means and includes individuals, entities,
25 corporations, limited liability companies, registered limited
26 liability partnerships, and partnerships, foreign or
27 domestic, except that when the context otherwise requires,
28 the term may refer to a single individual or other described
29 entity.
30 "Personal assistant" means a licensed or unlicensed
31 person who has been hired for the purpose of aiding or
32 assisting a sponsored licensee in the performance of the
33 sponsored licensee's job.
34 "Pocket card" means the card issued by OBRE to signify
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1 that the person named on the card is currently licensed under
2 this Act.
3 "Pre-license school" means a school licensed by OBRE
4 offering courses in subjects related to real estate
5 transactions, including the subjects upon which an applicant
6 is examined in determining fitness to receive a license.
7 "Pre-renewal period" means the period between the date of
8 issue of a currently valid license and the license's
9 expiration date.
10 "Real estate" means and includes leaseholds as well as
11 any other interest or estate in land, whether corporeal,
12 incorporeal, freehold, or non-freehold and whether the real
13 estate is situated in this State or elsewhere.
14 "Real Estate Administration and Disciplinary Board" or
15 "Board" means the Real Estate Administration and Disciplinary
16 Board created by Section 25-10 of this Act.
17 "Salesperson" means any individual, other than a real
18 estate broker or leasing agent, who is employed by a real
19 estate broker or is associated by written agreement with a
20 real estate broker as an independent contractor and
21 participates in any activity described in the definition of
22 "broker" under this Section.
23 "Sponsoring broker" means the broker who has issued a
24 sponsor card to a licensed salesperson, another licensed
25 broker, or a leasing agent.
26 "Sponsor card" means the temporary permit issued by the
27 sponsoring real estate broker certifying that the real estate
28 broker, real estate salesperson, or leasing agent named
29 thereon is employed by or associated by written agreement
30 with the sponsoring real estate broker, as provided for in
31 Section 5-40 of this Act.
32 ARTICLE 5. LICENSING AND EDUCATION
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1 Section 5-5. Leasing agent license.
2 (a) The purpose of this Section is to provide for a
3 limited scope license to enable persons who wish to engage in
4 activities limited to the leasing of residential real
5 property for which a license is required under this Act, and
6 only those activities, to do so by obtaining the license
7 provided for under this Section.
8 (b) Notwithstanding the other provisions of this Act,
9 there is hereby created a leasing agent license that shall
10 enable the licensee to engage only in residential leasing
11 activities for which a license is required under this Act.
12 Such activities include without limitation leasing or renting
13 residential real property, or attempting, offering, or
14 negotiating to lease or rent residential real property, or
15 supervising the collection, offer, attempt, or agreement to
16 collect rent for the use of residential real property.
17 Nothing in this Section shall be construed to require a
18 licensed real estate broker or salesperson to obtain a
19 leasing agent license in order to perform leasing activities
20 for which a license is required under this Act. Licensed
21 leasing agents must be sponsored and employed by a sponsoring
22 broker.
23 (c) OBRE, by rule, with the advice of the Board, shall
24 provide for the licensing of leasing agents, including the
25 issuance, renewal, and administration of licenses.
26 (d) Notwithstanding any other provisions of this Act to
27 the contrary, a person may engage in residential leasing
28 activities for which a license is required under this Act,
29 for a period of 120 consecutive days without being licensed,
30 so long as the person is acting under the supervision of a
31 licensed real estate broker and the broker has notified OBRE
32 that the person is pursuing licensure under this Section.
33 During the 120 day period all requirements of Sections 5-10
34 and 5-65 of this Act with respect to education, successful
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1 completion of an examination, and the payment of all required
2 fees must be satisfied. OBRE may adopt rules to ensure that
3 the provisions of this subsection are not used in a manner
4 that enables an unlicensed person to repeatedly or
5 continually engage in activities for which a license is
6 required under this Act.
7 Section 5-10. Application for leasing agent license.
8 Every person who desires to obtain a leasing agent license
9 shall apply to OBRE in writing on forms provided by OBRE. In
10 addition to any other information required to be contained in
11 the application, every application for an original or renewed
12 leasing agent license shall include the applicant's Social
13 Security number. All application or license fees must
14 accompany the application. Each applicant must be at least
15 18 years of age, must be of good moral character, shall have
16 successfully completed a 4-year course of study in a high
17 school or secondary school or an equivalent course of study
18 approved by the Illinois State Board of Education, and shall
19 successfully complete a written examination authorized by
20 OBRE sufficient to demonstrate the applicant's knowledge of
21 the provisions of this Act relating to leasing agents and the
22 applicant's competence to engage in the activities of a
23 licensed leasing agent. Applicants must successfully
24 complete 15 hours of instruction in an approved course of
25 study relating to the leasing of residential real property.
26 The course of study shall, among other topics, cover the
27 provisions of this Act applicable to leasing agents; fair
28 housing issues relating to residential leasing; advertising
29 and marketing issues; leases, applications, and credit
30 reports; owner-tenant relationships and owner-tenant laws;
31 the handling of funds; and environmental issues relating to
32 residential real property. Successfully completed course
33 work, completed pursuant to the requirements of this Section,
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1 may be applied to the course work requirements to obtain a
2 real estate broker's or salesperson's license as provided by
3 rule. The Advisory Council shall recommend through the Board
4 to OBRE and OBRE shall adopt requirements for approved
5 courses, course content, and the approval of courses,
6 instructors, and schools, as well as school and instructor
7 fees. OBRE may establish continuing education requirements
8 for licensed leasing agents, by rule, with the advice of the
9 Advisory Council and Board.
10 Section 5-15. Necessity of broker, salesperson, or
11 leasing agent license or sponsor card; ownership
12 restrictions.
13 (a) It is unlawful for any person, corporation, limited
14 liability company, registered limited liability partnership,
15 or partnership to act as a real estate broker, real estate
16 salesperson, or leasing agent or to advertise or assume to
17 act as such broker, salesperson, or leasing agent without a
18 properly issued sponsor card or a license issued under this
19 Act by OBRE, either directly or through its authorized
20 designee.
21 (b) No corporation shall be granted a license or engage
22 in the business or capacity, either directly or indirectly,
23 of a real estate broker, unless every officer of the
24 corporation who actively participates in the real estate
25 activities of the corporation holds a license as a real
26 estate broker and unless every employee who acts as a
27 salesperson, or leasing agent for the corporation holds a
28 license as a real estate broker, salesperson, or leasing
29 agent.
30 (c) No partnership shall be granted a license or engage
31 in the business or serve in the capacity, either directly or
32 indirectly, of a real estate broker, unless every general
33 partner in the partnership holds a license as a real estate
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1 broker and unless every employee who acts as a salesperson or
2 leasing agent for the partnership holds a license as a real
3 estate broker, salesperson, or leasing agent. In the case of
4 a registered limited liability partnership (LLP), every
5 partner in the LLP must hold a license as a real estate
6 broker and every employee who acts as a salesperson or
7 leasing agent must hold a license as a real estate broker,
8 salesperson, or leasing agent.
9 (d) No limited liability company shall be granted a
10 license or engage in the business or serve in the capacity,
11 either directly or indirectly, of a real estate broker unless
12 every manager in the limited liability company holds a
13 license as a real estate broker and unless every member and
14 employee who acts as a salesperson or leasing agent for the
15 limited liability company holds a license as a real estate
16 broker, salesperson, or leasing agent.
17 (e) No partnership, limited liability company, or
18 corporation shall be licensed to conduct a brokerage business
19 where an individual salesperson or leasing agent, or group of
20 salespersons or leasing agents, owns or directly or
21 indirectly controls more than 49% of the shares of stock or
22 other ownership in the partnership, limited liability
23 company, or corporation.
24 Section 5-20. Exemptions from broker, salesperson, or
25 leasing agent license requirement. The requirement for
26 holding a license under this Article 5 shall not apply to:
27 (1) Any person, partnership, or corporation that as
28 owner or lessor performs any of the acts described in the
29 definition of "broker" under Section 1-10 of this Act with
30 reference to property owned or leased by it, or to the
31 regular employees thereof with respect to the property so
32 owned or leased, where such acts are performed in the regular
33 course of or as an incident to the management, sale, or other
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1 disposition of such property and the investment therein,
2 provided that such regular employees do not perform any of
3 the acts described in the definition of "broker" under
4 Section 1-10 of this Act in connection with a vocation of
5 selling or leasing any real estate or the improvements
6 thereon not so owned or leased.
7 (2) An attorney in fact acting under a duly executed and
8 recorded power of attorney to convey real estate from the
9 owner or lessor or the services rendered by an attorney at
10 law in the performance of the attorney's duty as an attorney
11 at law.
12 (3) Any person acting as receiver, trustee in
13 bankruptcy, administrator, executor, or guardian or while
14 acting under a court order or under the authority of a will
15 or testamentary trust.
16 (4) Any person acting as a resident manager for the
17 owner or any employee acting as the resident manager for a
18 broker managing an apartment building, duplex, or apartment
19 complex, when the resident manager resides on the premises,
20 the premises is his or her primary residence, and the
21 resident manager is engaged in the leasing of the property of
22 which he or she is the resident manager.
23 (5) Any officer or employee of a federal agency in the
24 conduct of official duties.
25 (6) Any officer or employee of the State government or
26 any political subdivision thereof performing official duties.
27 (7) Any multiple listing service or other information
28 exchange that is engaged in the collection and dissemination
29 of information concerning real estate available for sale,
30 purchase, lease, or exchange along with which no other
31 licensed activities are provided.
32 (8) Railroads and other public utilities regulated by
33 the State of Illinois, or the officers or full time employees
34 thereof, unless the performance of any licensed activities is
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1 in connection with the sale, purchase, lease, or other
2 disposition of real estate or investment therein not needing
3 the approval of the appropriate State regulatory authority.
4 (9) Any medium of advertising in the routine course of
5 selling or publishing advertising along with which no other
6 licensed activities are provided.
7 (10) Any resident lessee of a residential dwelling unit
8 who refers for compensation to the owner of the dwelling
9 unit, or to the owner's agent, prospective lessees of
10 dwelling units in the same building or complex as the
11 resident lessee's unit, but only if the resident lessee (i)
12 refers no more than 3 prospective lessees in any 12-month
13 period, (ii) receives compensation of no more than $1,000 or
14 the equivalent of one month's rent, whichever is less, in any
15 12-month period, and (iii) limits his or her activities to
16 referring prospective lessees to the owner, or the owner's
17 agent, and does not show a residential dwelling unit to a
18 prospective lessee, discuss terms or conditions of leasing a
19 dwelling unit with a prospective lessee, or otherwise
20 participate in the negotiation of the leasing of a dwelling
21 unit.
22 Section 5-25. Application for and issuance of broker or
23 salesperson license.
24 (a) Every person who desires to obtain a license shall
25 make application to OBRE in writing upon forms prepared and
26 furnished by OBRE. In addition to any other information
27 required to be contained in the application, every
28 application for an original or renewed license shall include
29 the applicant's Social Security number. Each applicant shall
30 be at least 21 years of age, be of good moral character, and
31 have successfully completed a 4-year course of study in a
32 high school or secondary school approved by the Illinois
33 State Board of Education or an equivalent course of study as
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1 determined by an examination conducted by the Illinois State
2 Board of Education and shall be verified under oath by the
3 applicant. The minimum age of 21 years shall be waived for
4 any person seeking a license as a real estate salesperson who
5 has attained the age of 18 and can provide evidence of the
6 successful completion of at least 4 semesters of
7 post-secondary school study as a full-time student or the
8 equivalent, with major emphasis on real estate courses, in a
9 school approved by OBRE.
10 (b) When an applicant has had his or her license revoked
11 on a prior occasion or when an applicant is found to have
12 committed any of the practices enumerated in Section 20-20 of
13 this Act or when an applicant has been convicted of forgery,
14 embezzlement, obtaining money under false pretenses, larceny,
15 extortion, conspiracy to defraud, or any other similar
16 offense or offenses or has been convicted of a felony
17 involving moral turpitude in any court of competent
18 jurisdiction in this or any other state, district, or
19 territory of the United States or of a foreign country, the
20 Board may consider the prior revocation, conduct, or
21 conviction in its determination of the applicant's moral
22 character and whether to grant the applicant a license. In
23 its consideration of the prior revocation, conduct, or
24 conviction, the Board shall take into account the nature of
25 the conduct, any aggravating or extenuating circumstances,
26 the time elapsed since the revocation, conduct, or
27 conviction, the rehabilitation or restitution performed by
28 the applicant, and any other factors that the Board deems
29 relevant. When an applicant has made a false statement of
30 material fact on his or her application, the false statement
31 may in itself be sufficient grounds to revoke or refuse to
32 issue a license.
33 (c) Every valid application for issuance of an initial
34 license shall be accompanied by a sponsor card and the fees
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1 specified by rule.
2 (d) No applicant shall engage in any of the activities
3 covered by this Act until a valid sponsor card has been
4 issued to such applicant. The sponsor card shall be valid
5 for a maximum period of 45 days from the date of issuance
6 unless extended for good cause as provided by rule.
7 (e) OBRE shall issue to each applicant entitled thereto
8 a license in such form and size as shall be prescribed by
9 OBRE. The procedure for terminating a license shall be
10 printed on the reverse side of the license. Each license
11 shall bear the name of the person so qualified, shall specify
12 whether the person is qualified to act in a broker or
13 salesperson capacity, and shall contain such other
14 information as shall be recommended by the Board and approved
15 by OBRE. Each person licensed under this Act shall display
16 his or her license conspicuously in his or her place of
17 business.
18 Section 5-30. Education requirements to obtain an
19 original broker or salesperson license.
20 (a) All applicants for a broker's license, except
21 applicants who meet the criteria set forth in subsection (c)
22 of this Section shall (i) give satisfactory evidence of
23 having completed at least 120 classroom hours, 45 of which
24 shall be those hours required to obtain a salesperson's
25 license plus 15 hours in brokerage administration courses, in
26 real estate courses approved by the Advisory Council or (ii)
27 for applicants who currently hold a valid real estate
28 salesperson's license, give satisfactory evidence of having
29 completed at least 75 hours in real estate courses, not
30 including the courses that are required to obtain a
31 salesperson's license, approved by the Advisory Council.
32 (b) All applicants for a salesperson's license, except
33 applicants who meet the criteria set forth in subsection (c)
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1 of this Section shall give satisfactory evidence that they
2 have completed at least 45 hours of instruction in real
3 estate courses approved by the Advisory Council.
4 (c) The requirements specified in subsections (a) and
5 (b) of this Section do not apply to applicants who:
6 (1) are currently admitted to practice law by the
7 Supreme Court of Illinois and are currently in active
8 standing; or
9 (2) show evidence of receiving a baccalaureate
10 degree including courses involving real estate or related
11 material from a college or university approved by the
12 Advisory Council.
13 (d) A minimum of 15 of the required hours of pre-license
14 education shall be in the areas of Article 15 of this Act,
15 disclosure and environmental issues, or any other currently
16 topical areas that are determined by the Advisory Council.
17 Section 5-35. Examination; broker or salesperson.
18 (a) Every person who makes application for an original
19 license as a broker or salesperson shall personally take and
20 pass a written examination authorized by OBRE and answer any
21 questions that may be required to determine the good moral
22 character of the applicant and the applicant's competency to
23 transact the business of broker or salesperson, as the case
24 may be, in such a manner as to safeguard the interests of the
25 public. In determining this competency, OBRE shall require
26 proof that the applicant has a good understanding and the
27 knowledge to conduct real estate brokerage and of the
28 provisions of this Act. The examination shall be prepared by
29 an independent testing service designated by OBRE, subject to
30 the approval of the examinations by the Board. The
31 designated independent testing service shall conduct the
32 examinations at such times and places as OBRE shall approve.
33 In addition, every person who desires to take the written
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1 examination shall make application to do so to OBRE or to the
2 designated independent testing service in writing upon forms
3 approved by OBRE. An applicant shall be eligible to take the
4 examination only after successfully completing the education
5 requirements, set forth in Section 5-30 of this Act, and
6 attaining the minimum age specified in this Act. Each
7 applicant shall be required to establish compliance with the
8 eligibility requirements in the manner provided by the rules
9 promulgated for the administration of this Act.
10 (b) If a person who has received a passing score on the
11 written examination described in this Section fails to file
12 an application and meet all requirements for a license under
13 this Act within one year after receiving a passing score on
14 the examination, credit for the examination shall terminate.
15 The person thereafter may make a new application for
16 examination.
17 (c) If an applicant has failed an examination 3 times,
18 the applicant must repeat the pre-license education required
19 to sit for the examination. For the purposes of this
20 Section, the fourth attempt shall be the same as the first.
21 Approved education, as prescribed by this Act for licensure
22 as a salesperson or broker, shall be valid for 3 years after
23 the date of satisfactory completion of the education.
24 Section 5-40. Sponsor card; termination indicated by
25 license endorsement; association with new broker.
26 (a) The sponsoring broker shall prepare upon forms
27 provided by OBRE and deliver to each licensee employed by or
28 associated with the sponsoring broker a sponsor card
29 certifying that the person whose name appears thereon is in
30 fact employed by or associated with the sponsoring broker.
31 The sponsoring broker shall send, by certified mail, return
32 receipt requested, or other delivery service requiring a
33 signature upon delivery, a duplicate of each sponsor card,
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1 along with a valid license or other authorization as provided
2 by rule and the appropriate fee, to OBRE within 24 hours of
3 issuance of the sponsor card. It is a violation of this Act
4 for any broker to issue a sponsor card to any licensee or
5 applicant unless the licensee or applicant presents in hand a
6 valid license or other authorization as provided by rule.
7 (b) When a licensee terminates his or her employment or
8 association with a sponsoring broker or the employment is
9 terminated by the sponsoring broker, the licensee shall
10 obtain from the sponsoring broker his or her license endorsed
11 by the sponsoring broker indicating the termination. The
12 sponsoring broker shall surrender to OBRE a copy of the
13 license of the licensee within 2 days of the termination or
14 shall notify OBRE in writing of the termination and explain
15 why a copy of the license is not surrendered. Failure of the
16 sponsoring broker to surrender the license shall subject the
17 sponsoring broker to discipline under Section 20-20 of this
18 Act. The license of any licensee whose association with a
19 sponsoring broker is terminated shall automatically become
20 inoperative immediately upon the termination unless the
21 licensee accepts employment or becomes associated with a new
22 sponsoring broker pursuant to subsection (c) of this Section.
23 (c) When a licensee accepts employment or association
24 with a new sponsoring broker, the new sponsoring broker shall
25 send, by certified mail, return receipt requested, or other
26 delivery service requiring a signature upon delivery, to OBRE
27 a duplicate sponsor card, along with the licensee's endorsed
28 license or an affidavit of the licensee of why the endorsed
29 license is not surrendered, and shall pay the appropriate fee
30 prescribed by rule to cover administrative expenses attendant
31 to the changes in the registration of the licensee.
32 Section 5-45. Offices.
33 (a) If a sponsoring broker maintains more than one
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1 office within the State, the sponsoring broker shall apply
2 for a branch office license for each office other than the
3 sponsoring broker's principal place of business. The branch
4 office license shall be displayed conspicuously in each
5 branch office. The name of each branch office shall be the
6 same as that of the sponsoring broker's principal office or
7 shall clearly delineate the branch office's relationship with
8 the principal office.
9 (b) The sponsoring broker shall name a managing broker
10 for each branch office and the sponsoring broker shall be
11 responsible for supervising all managing brokers. The
12 sponsoring broker shall notify OBRE in writing of the name of
13 all managing brokers of the sponsoring broker. Any changes
14 in managing brokers shall be reported to OBRE in writing
15 within 15 days of the change. Failure to do so shall subject
16 the sponsoring broker to discipline under Section 20-20 of
17 this Act.
18 (c) The sponsoring broker shall immediately notify OBRE
19 in writing of any opening, closing, or change in location of
20 any principal or branch office.
21 (d) Except as provided in this Section, each sponsoring
22 broker shall maintain a definite office, or place of business
23 within this State for the transaction of real estate
24 business, shall conspicuously display an identification sign
25 on the outside of his or her office of adequate size and
26 visibility, and shall conspicuously display his or her
27 license in his or her office or place of business and also
28 the licenses of all persons associated with or employed by
29 the sponsoring broker who primarily work at that location.
30 The office or place of business shall not be located in any
31 retail or financial business establishment unless it is
32 separated from the other business by a separate and distinct
33 area within the establishment. A broker who is licensed in
34 this State by examination or pursuant to the provisions of
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1 Section 5-60 of this Act shall not be required to maintain a
2 definite office or place of business in this State provided
3 all of the following conditions are met:
4 (1) the broker maintains an active broker's license
5 in the broker's state of domicile;
6 (2) the broker maintains an office in the broker's
7 state of domicile; and
8 (3) the broker has filed with OBRE written
9 statements appointing the Commissioner to act as the
10 broker's agent upon whom all judicial and other process
11 or legal notices directed to the licensee may be served
12 and agreeing to abide by all of the provisions of this
13 Act with respect to his or her real estate activities
14 within the State of Illinois and submitting to the
15 jurisdiction of OBRE.
16 The statements under subdivision (3) of this Section
17 shall be in form and substance the same as those statements
18 required under Section 5-60 of this Act and shall operate to
19 the same extent.
20 (e) Upon the loss of a managing broker who is not
21 replaced by the sponsoring broker or in the event of the
22 death or adjudicated disability of the sole proprietor of an
23 office, a written request for authorization allowing the
24 continued operation of the office may be submitted to OBRE
25 within 15 days of the loss. OBRE may issue a written
26 authorization allowing the continued operation, provided that
27 a licensed broker, or in the case of the death or adjudicated
28 disability of a sole proprietor, the representative of the
29 estate, assumes responsibility, in writing, for the operation
30 of the office and agrees to personally supervise the
31 operation of the office. No such written authorization shall
32 be valid for more than 60 days unless extended by OBRE for
33 good cause shown and upon written request by the broker or
34 representative.
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1 Section 5-50. Expiration date and renewal period of
2 broker, salesperson, or leasing agent license; sponsoring
3 broker; register of licensees; pocket card.
4 (a) The expiration date and renewal period for each
5 license issued under this Act shall be set by rule. Except
6 as otherwise provided in Section 5-55 of this Act, the holder
7 of a license may renew the license within 90 days preceding
8 the expiration date thereof by paying the fees specified by
9 rule. Upon written request from the sponsoring broker, OBRE
10 shall prepare and mail to the sponsoring broker a listing of
11 licensees under this Act who, according to the records of
12 OBRE, are sponsored by that broker. Every licensee
13 associated with or employed by a broker whose license is
14 revoked, suspended, terminated, or expired shall be
15 considered as inoperative until such time as the sponsoring
16 broker's license is reinstated or renewed, or the licensee
17 changes employment as set forth in subsection (c) of Section
18 5-40 of this Act.
19 (b) OBRE shall establish and maintain a register of all
20 persons currently licensed by the State and shall issue and
21 prescribe a form of pocket card. Upon payment by a licensee
22 of the appropriate fee as prescribed by rule for engagement
23 in the activity for which the licensee is qualified and holds
24 a license for the current period, OBRE shall issue a pocket
25 card to the licensee. The pocket card shall be verification
26 that the required fee for the current period has been paid
27 and shall indicate that the person named thereon is licensed
28 for the current renewal period as a broker, salesperson, or
29 leasing agent as the case may be. The pocket card shall
30 further indicate that the person named thereon is authorized
31 by OBRE to engage in the licensed activity appropriate for
32 his or her status (broker, salesperson, or leasing agent).
33 Each licensee shall carry on his or her person his or her
34 pocket card or, if such pocket card has not yet been issued,
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1 a properly issued sponsor card when engaging in any licensed
2 activity and shall display the same on demand.
3 Section 5-55. Expiration and renewal of broker or
4 salesperson license.
5 (a) Any broker or salesperson whose license under this
6 Act has expired shall be eligible to renew the license for a
7 period of 2 years following the expiration date, provided the
8 broker or salesperson pays the fees as prescribed by rule. A
9 broker or salesperson whose license has been expired for more
10 than 2 years shall be required to meet the requirements for a
11 new license.
12 (b) Notwithstanding any other provisions of this Act to
13 the contrary, any broker or salesperson whose license under
14 this Act has expired is eligible to renew the license without
15 paying any lapsed renewal fees or reinstatement fee, provided
16 that the license expired while the broker or salesperson was:
17 (1) on active duty with the United States Army,
18 United States Navy, United States Marine Corps, United
19 States Air Force, United States Coast Guard, or the State
20 Militia called into the service or training of the United
21 States;
22 (2) engaged in training or education under the
23 supervision of the United States prior to induction into
24 military service; or
25 (3) serving as the Director of Real Estate in the
26 State of Illinois or as an employee of OBRE.
27 A broker or salesperson shall be eligible to renew a
28 license under the provisions of this Section for a period of
29 2 years following the termination of the service, education,
30 or training, provided that the termination was by other than
31 dishonorable discharge and provided that the licensee
32 furnishes OBRE an affidavit specifying that the broker or
33 salesperson has been so engaged and that the service,
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1 education, or training has been so terminated.
2 Section 5-60. Broker licensed in another state;
3 nonresident salesperson; reciprocal agreements; agent for
4 service of process.
5 (a) A broker's license may be issued by OBRE to a broker
6 licensed under the laws of another state of the United
7 States, under the following conditions:
8 (1) the broker holds a broker's license in his or
9 her state of domicile;
10 (2) the standards for that state for licensing as a
11 broker are substantially equivalent to or greater than
12 the minimum standards in the State of Illinois;
13 (3) the broker has been actively practicing as a
14 broker in the broker's state of domicile for a period of
15 not less than 2 years, immediately prior to the date of
16 application;
17 (4) the broker furnishes OBRE with a statement
18 under seal of the proper licensing authority of the state
19 in which the broker is licensed showing that the broker
20 has an active broker's license, that the broker is in
21 good standing, and that no complaints are pending against
22 the broker in that state; and
23 (5) the broker completes a course of education and
24 passes a test on Illinois specific real estate brokerage
25 laws.
26 (b) A nonresident salesperson employed by or associated
27 with a nonresident broker holding a broker's license in this
28 State pursuant to this Section may, in the discretion of
29 OBRE, be issued a nonresident salesperson's license under the
30 nonresident broker provided all of the following conditions
31 are met:
32 (1) the salesperson maintains an active license in
33 the state in which he or she is domiciled;
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1 (2) the salesperson is domiciled in the same state
2 as the broker with whom he or she is associated; and
3 (3) the salesperson completes a course of education
4 and passes a test on Illinois specific real estate
5 brokerage laws.
6 The nonresident broker with whom the salesperson is
7 associated shall comply with the provisions of this Act and
8 issue the salesperson a sponsor card upon the form provided
9 by OBRE.
10 (c) As a condition precedent to the issuance of a
11 license to a nonresident broker or salesperson, the broker or
12 salesperson shall agree in writing to abide by all the
13 provisions of this Act with respect to his or her real estate
14 activities within the State of Illinois and submit to the
15 jurisdiction of OBRE as provided in this Act. The agreement
16 shall be filed with OBRE and shall remain in force for so
17 long as the nonresident broker or salesperson is licensed by
18 this State and thereafter with respect to acts or omissions
19 committed while licensed as a broker or salesperson in this
20 State.
21 (d) Prior to the issuance of any license to any
22 nonresident, verification of active licensure issued for the
23 conduct of such business in any other state must be filed
24 with OBRE by the nonresident, and the same fees must be paid
25 as provided in this Act for the obtaining of a broker's or
26 salesperson's license in this State.
27 (e) Licenses previously granted under reciprocal
28 agreements shall remain in force, unless suspended, revoked,
29 or terminated by OBRE for any reason provided for suspension,
30 revocation, or termination of a resident licensee's license.
31 Licenses granted under reciprocal agreements may be renewed
32 in the same manner as a resident's license.
33 (f) Prior to the issuance of a license to a nonresident
34 broker or salesperson, the broker or salesperson shall file
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1 with OBRE a designation in writing that appoints the
2 Commissioner to act as his or her agent upon whom all
3 judicial and other process or legal notices directed to the
4 broker or salesperson may be served. Service upon the agent
5 so designated shall be equivalent to personal service upon
6 the licensee. Copies of the appointment, certified by the
7 Commissioner, shall be deemed sufficient evidence thereof and
8 shall be admitted in evidence with the same force and effect
9 as the original thereof might be admitted. In the written
10 designation, the broker or salesperson shall agree that any
11 lawful process against the licensee that is served upon the
12 agent shall be of the same legal force and validity as if
13 served upon the licensee and that the authority shall
14 continue in force so long as any liability remains
15 outstanding in this State. Upon the receipt of any process
16 or notice, the Commissioner shall forthwith mail a copy of
17 the same by certified mail to the last known business address
18 of the licensee.
19 (g) Any person holding a valid license under this
20 Section shall be eligible to obtain a resident broker's or
21 salesperson's license without examination should that person
22 change their state of domicile to Illinois and that person
23 otherwise meets the qualifications or licensure under this
24 Act.
25 Section 5-65. Fees. OBRE shall provide by rule for fees
26 to be paid by applicants and licensees to cover the
27 reasonable costs of OBRE in administering and enforcing the
28 provisions of this Act. OBRE may also provide by rule for
29 general fees to cover the reasonable expenses of carrying out
30 other functions and responsibilities under this Act.
31 Section 5-70. Continuing education requirement; broker
32 or salesperson.
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1 (a) The requirements of this Section apply to all
2 licensees who have had a license for less than 15 years as of
3 January 1, 1992.
4 (b) Except as otherwise provided in this Section, each
5 person who applies for renewal of his or her license as a
6 real estate broker or real estate salesperson must
7 successfully complete real estate continuing education
8 courses approved by the Advisory Council at the rate of 6
9 hours per year or its equivalent. No license may be renewed
10 except upon the successful completion of the required courses
11 or their equivalent or upon a waiver of those requirements
12 for good cause shown as determined by the Commissioner with
13 the recommendation of the Advisory Council. The requirements
14 of this Article are applicable to all brokers and
15 salespersons except those brokers and salespersons who,
16 during the pre-renewal period:
17 (1) serve in the armed services of the United
18 States;
19 (2) serve as an elected State or federal official;
20 (3) serve as a full-time employee of OBRE; or
21 (4) are admitted to practice law pursuant to
22 Illinois Supreme Court rule.
23 (c) A person who is issued an initial license as a real
24 estate salesperson less than one year prior to the expiration
25 date of that license shall not be required to complete
26 continuing education as a condition of license renewal. A
27 person who is issued an initial license as a real estate
28 broker less than one year prior to the expiration date of
29 that license and who has not been licensed as a real estate
30 salesperson during the pre-renewal period shall not be
31 required to complete continuing education as a condition of
32 license renewal.
33 (d) The continuing education requirement for
34 salespersons and brokers shall consist of a core curriculum
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1 and an elective curriculum, to be established by the Advisory
2 Council. In meeting the continuing education requirements of
3 this Act, at least 3 hours per year or their equivalent shall
4 be required to be completed in the core curriculum. In
5 establishing the core curriculum, the Advisory Council shall
6 consider subjects that will educate licensees on recent
7 changes in applicable laws and new laws and refresh the
8 licensee on areas of the license law and OBRE policy that the
9 Advisory Council deems appropriate, and any other areas that
10 the Advisory Council deems timely and applicable in order to
11 prevent violations of this Act and to protect the public. In
12 establishing the elective curriculum, the Advisory Council
13 shall consider subjects that cover the various aspects of the
14 practice of real estate that are covered under the scope of
15 this Act. However, the elective curriculum shall not include
16 any offerings referred to in Section 5-85 of this Act.
17 (e) The subject areas of continuing education courses
18 approved by the Advisory Council may include without
19 limitation the following:
20 (1) license law and escrow;
21 (2) antitrust;
22 (3) fair housing;
23 (4) agency;
24 (5) appraisal;
25 (6) property management;
26 (7) residential brokerage;
27 (8) farm property management;
28 (9) rights and duties of sellers, buyers, and
29 brokers;
30 (10) commercial brokerage and leasing; and
31 (11) real estate financing.
32 (f) In lieu of credit for those courses listed in
33 subsection (e) of this Section, credit may be earned for
34 serving as a licensed instructor in an approved course of
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1 continuing education. The amount of credit earned for
2 teaching a course shall be the amount of continuing education
3 credit for which the course is approved for licensees taking
4 the course.
5 (g) Credit hours may be earned for self-study programs
6 approved by the Advisory Council.
7 (h) A broker or salesperson may earn credit for a
8 specific continuing education course only once during the
9 prerenewal period.
10 (i) No more than 6 hours of continuing education credit
11 may be earned in one calendar day.
12 Section 5-75. Out-of-state continuing education credit.
13 If a renewal applicant has earned continuing education hours
14 in another state or territory for which he or she is claiming
15 credit toward full compliance in Illinois, the Advisory
16 Council shall review, approve, or disapprove those hours
17 based upon whether the course is one that would be approved
18 under Section 5-70 of this Act, whether the course meets the
19 basic requirements for continuing education under this Act,
20 and any other criteria that is provided by statute or rule.
21 Section 5-80. Evidence of compliance with continuing
22 education requirements.
23 (a) Each renewal applicant shall certify, on his or her
24 renewal application, full compliance with continuing
25 education requirements set forth in Section 5-70. The
26 continuing education school shall retain and submit to OBRE
27 after the completion of each course evidence of those
28 successfully completing the course as provided by rule.
29 (b) OBRE may require additional evidence demonstrating
30 compliance with the continuing education requirements. The
31 renewal applicant shall retain and produce the evidence of
32 compliance upon request of OBRE.
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1 Section 5-85. Offerings not meeting continuing education
2 requirements. The following offerings do not meet the
3 continuing education requirements:
4 (1) Examination preparation offerings, except as
5 provided in Section 5-70 of this Act.
6 (2) Offerings in mechanical office and business
7 skills such as typing, speed reading, memory improvement,
8 advertising, or psychology of sales.
9 (3) Sales promotion or other meetings held in
10 conjunction with the general business of the attendee or
11 his or her employer.
12 (4) Meetings that are a normal part of in-house
13 staff or employee training.
14 The offerings listed in this Section do not limit the
15 Advisory Council's authority to disapprove any course that
16 fails to meet the standards of this Article 5 or rules
17 adopted by OBRE.
18 ARTICLE 10. COMPENSATION AND BUSINESS PRACTICES
19 Section 10-5. Payment of compensation.
20 (a) No licensee shall pay compensation directly to a
21 licensee sponsored by another broker for the performance of
22 licensed activities. No licensee sponsored by a broker may
23 pay compensation to any licensee other than his or her
24 sponsoring broker for the performance of licensed activities
25 unless the licensee paying the compensation is a principal to
26 the transaction. However, a non-sponsoring broker may pay
27 compensation directly to a licensee sponsored by another or a
28 person who is not sponsored by a broker if the payments are
29 made pursuant to terms of an employment agreement that was
30 previously in place between a licensee and the non-sponsoring
31 broker, and the payments are for licensed activity performed
32 by that person while previously sponsored by the now
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1 non-sponsoring broker.
2 (b) No licensee sponsored by a broker shall accept
3 compensation for the performance of activities under this Act
4 except from the broker by whom the licensee is sponsored,
5 except as provided in this Section.
6 (c) Any person that is a licensed personal assistant for
7 another licensee may only be compensated in his or her
8 capacity as a personal assistant by the sponsoring broker for
9 that licensed personal assistant.
10 (d) One sponsoring broker may pay compensation directly
11 to another sponsoring broker for the performance of licensed
12 activities.
13 Section 10-10. Disclosure of compensation.
14 (a) A licensee must disclose to a client the sponsoring
15 broker's compensation and policy with regard to cooperating
16 with brokers who represent other parties in a transaction.
17 (b) A licensee must disclose to a client all sources of
18 compensation related to the transaction received by the
19 licensee from a third party.
20 (c) If a licensee refers a client to a third party in
21 which the licensee has greater than a 1% ownership interest
22 or from which the licensee receives or may receive dividends
23 or other profit sharing distributions, other than a publicly
24 held or traded company, for the purpose of the client
25 obtaining services related to the transaction, then the
26 licensee shall disclose that fact to the client at the time
27 of making the referral.
28 (d) If in any one transaction a sponsoring broker
29 receives compensation from both the buyer and seller or
30 lessee and lessor of real estate, the sponsoring broker shall
31 disclose in writing to a client the fact that the
32 compensation is being paid by both buyer and seller or lessee
33 and lessor.
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1 (e) Nothing in the Act shall prohibit the cooperation
2 with or a payment of compensation to a person not domiciled
3 in this State who is licensed as a real estate broker in his
4 or her state of domicile.
5 Section 10-15. No compensation to persons in violation
6 of Act; compensation to unlicensed persons; consumer.
7 (a) No compensation may be paid to any unlicensed person
8 in exchange for the person performing licensed activities in
9 violation of this Act.
10 (b) No action or suit shall be instituted, nor recovery
11 therein be had, in any court of this State by any person,
12 partnership, registered limited liability partnership,
13 limited liability company, or corporation for compensation
14 for any act done or service performed, the doing or
15 performing of which is prohibited by this Act to other than
16 licensed brokers, salespersons, or leasing agents unless the
17 person, partnership, registered limited liability
18 partnership, limited liability company, or corporation was
19 duly licensed hereunder as a broker, salesperson, or leasing
20 agent under this Act at the time that any such act was done
21 or service performed that would give rise to a cause of
22 action for compensation.
23 (c) A licensee may offer compensation, including prizes,
24 merchandise, services, rebates, discounts, or other
25 consideration to an unlicensed person who is a party to a
26 contract to buy or sell real estate or is a party to a
27 contract for the lease of real estate, so long as the offer
28 complies with the provisions of subdivision (26) of
29 subsection (h) of Section 20-20 of this Act.
30 (d) A licensee may offer cash, gifts, prizes, awards,
31 coupons, merchandise, rebates or chances to win a game of
32 chance, if not prohibited by any other law or statute, to a
33 consumer as an inducement to that consumer to use the
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1 services of the licensee even if the licensee and consumer do
2 not ultimately enter into a broker-client relationship so
3 long as the offer complies with the provisions of subdivision
4 (26) of subsection (h) of Section 20-20 of this Act.
5 Section 10-20. Sponsoring broker; employment agreement.
6 (a) A licensee may perform activities as a licensee only
7 for his or her sponsoring broker. A licensee must have only
8 one sponsoring broker at any one time.
9 (b) Every broker who employs licensees or has an
10 independent contractor relationship with a licensee shall
11 have a written employment agreement with each such licensee.
12 The broker having this written employment agreement with the
13 licensee must be that licensee's sponsoring broker.
14 (c) Every sponsoring broker must have a written
15 employment agreement with each licensee the broker sponsors.
16 The agreement shall address the employment or independent
17 contractor relationship terms, including without limitation
18 supervision, duties, compensation, and termination.
19 (d) Every sponsoring broker must have a written
20 employment agreement with each licensed personal assistant
21 who assists a licensee sponsored by the sponsoring broker.
22 This requirement applies to all licensed personal assistants
23 whether or not they perform licensed activities in their
24 capacity as a personal assistant. The agreement shall address
25 the employment or independent contractor relationship terms,
26 including without limitation supervision, duties,
27 compensation, and termination.
28 (e) Notwithstanding the fact that a sponsoring broker
29 has an employment agreement with a licensee, a sponsoring
30 broker may pay compensation directly to a corporation solely
31 owned by that licensee that has been formed for the purpose
32 of receiving compensation earned by the licensee. A
33 corporation formed for the purpose herein stated in this
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1 subsection (e) shall not be required to be licensed under
2 this Act so long as the person who is the sole shareholder of
3 the corporation is licensed.
4 Section 10-25. Expiration of brokerage agreement. No
5 licensee shall obtain any written brokerage agreement that
6 does not provide for automatic expiration within a definite
7 period of time. No notice of termination at the final
8 expiration thereof shall be required. Any written brokerage
9 agreement not containing a provision for automatic expiration
10 shall be void. When the license of any sponsoring broker is
11 suspended or revoked, any brokerage agreement with the
12 sponsoring broker shall be deemed to expire upon the
13 effective date of the suspension or revocation.
14 Section 10-27. Disclosure of licensee status. Each
15 licensee shall disclose, in writing, his or her status as a
16 licensee to all parties in a transaction when the licensee is
17 selling, leasing, or purchasing any interest, direct or
18 indirect, in the real estate that is the subject of the
19 transaction.
20 Section 10-30. Advertising.
21 (a) No advertising shall be fraudulent, deceptive,
22 inherently misleading, or proven to be misleading in
23 practice. It shall be considered misleading or untruthful
24 if, when taken as a whole, there is a distinct and reasonable
25 possibility that it will be misunderstood or will deceive the
26 ordinary purchaser, seller, lessee, lessor, or owner.
27 Advertising shall contain all information necessary to
28 communicate the information contained therein to the public
29 in a direct and readily comprehensible manner.
30 (b) No blind advertisements may be used by any licensee
31 except as provided for in this Section.
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1 (c) A licensee shall disclose, in writing, to all
2 parties in a transaction his or her status as a licensee and
3 any and all interest the licensee has or may have in the real
4 estate constituting the subject matter thereof, directly or
5 indirectly, according to the following guidelines:
6 (1) On broker yard signs or in broker
7 advertisements, no disclosure of ownership is necessary.
8 However, the ownership shall be indicated on any property
9 data form and disclosed to persons responding to any
10 advertisement or any sign. The term "broker owned" or
11 "agent owned" is sufficient disclosure.
12 (2) A sponsored or inoperative licensee selling or
13 leasing property, owned solely by the sponsored or
14 inoperative licensee, without utilizing brokerage
15 services of their sponsoring broker or any other
16 licensee, may advertise "By Owner". For purposes of this
17 Section, property is "solely owned" by a sponsored or
18 inoperative licensee if he or she (i) has a 100%
19 ownership interest alone, (ii) has ownership as a joint
20 tenant or tenant by the entirety, or (iii) holds a 100%
21 beneficial interest in a land trust. Sponsored or
22 inoperative licensees selling or leasing "By Owner" shall
23 comply with the following if advertising by owner:
24 (A) On "By Owner" yard signs, the sponsored or
25 inoperative licensee shall indicate "broker owned"
26 or "agent owned." "By Owner" advertisements used in
27 any medium of advertising shall include the term
28 "broker owned" or "agent owned."
29 (B) If a sponsored or inoperative licensee
30 runs advertisements, for the purpose of purchasing
31 or leasing real estate, he or she shall disclose in
32 the advertisements his or her status as a licensee.
33 (C) A sponsored or inoperative licensee shall
34 not use the sponsoring broker's name or the
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1 sponsoring broker's company name in connection with
2 the sale, lease, or advertisement of the property
3 nor utilize the sponsoring broker's or company's
4 name in connection with the sale, lease, or
5 advertising of the property in a manner likely to
6 create confusion among the public as to whether or
7 not the services of a real estate company are being
8 utilized or whether or not a real estate company has
9 an ownership interest in the property.
10 (d) A sponsored licensee may not advertise under his or
11 her own name. Advertising shall be under the direct
12 supervision of the sponsoring or managing broker and in the
13 sponsoring broker's business name, which in the case of a
14 franchise shall include the franchise affiliation as well as
15 the name of the individual firm. This provision does not
16 apply under the following circumstances:
17 (1) When a licensee enters into a brokerage
18 agreement relating to his or her own real estate, or real
19 estate in which he or she has an ownership interest, with
20 another licensed broker; or
21 (2) When a licensee is selling or leasing his or
22 her own real estate or buying or leasing real estate for
23 himself or herself, after providing the appropriate
24 written disclosure of his or her ownership interest as
25 required in paragraph (2) of subsection (c) of this
26 Section.
27 (e) No licensee shall list his or her name under the
28 heading or title "Real Estate" in the telephone directory or
29 otherwise advertise in his or her own name to the general
30 public through any medium of advertising as being in the real
31 estate business without listing his or her sponsoring
32 broker's business name.
33 (f) The sponsoring broker's business name and the name
34 of the licensee must appear in all advertisements, including
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1 business cards. Nothing in this Act shall be construed to
2 require specific print size as between the broker's business
3 name and the name of the licensee.
4 ARTICLE 15. AGENCY RELATIONSHIPS
5 Section 15-5. Legislative intent.
6 (a) The General Assembly finds that application of the
7 common law of agency to the relationships among real estate
8 brokers and salespersons and consumers of real estate
9 brokerage services has resulted in misunderstandings and
10 consequences that have been contrary to the best interests of
11 the public. The General Assembly further finds that the real
12 estate brokerage industry has a significant impact upon the
13 economy of the State of Illinois and that it is in the best
14 interest of the public to provide codification of the
15 relationships between real estate brokers and salespersons
16 and consumers of real estate brokerage services in order to
17 prevent detrimental misunderstandings and misinterpretations
18 of the relationships by consumers, real estate brokers, and
19 salespersons and thus promote and provide stability in the
20 real estate market. This Article 15 is enacted to govern the
21 relationships between consumers of real estate brokerage
22 services and real estate brokers and salespersons to the
23 extent not governed by an individual written agreement
24 between a sponsoring broker and a consumer, providing that
25 there is a relationship other than designated agency. This
26 Article 15 applies to the exclusion of the common law
27 concepts of principal and agent and to the fiduciary duties,
28 which have been applied to real estate brokers, salespersons,
29 and real estate brokerage services.
30 (b) The General Assembly further finds that this Article
31 15 is not intended to prescribe or affect contractual
32 relationships between real estate brokers and the broker's
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1 affiliated licensees.
2 (c) This Article 15 may serve as a basis for private
3 rights of action and defenses by sellers, buyers, landlords,
4 tenants, real estate brokers, and real estate salespersons.
5 The private rights of action, however, do not extend to the
6 provisions of any other Articles of this Act.
7 Section 15-10. Relationships between licensees and
8 consumers. Licensees shall be considered to be representing
9 the consumer they are working with as a designated agent for
10 the consumer unless:
11 (1) there is a written agreement between the
12 sponsoring broker and the consumer providing that there
13 is a different relationship; or
14 (2) the licensee is performing only ministerial
15 acts on behalf of the consumer.
16 Section 15-15. Duties of licensees representing clients.
17 (a) A licensee representing a client shall:
18 (1) Perform the terms of the brokerage agreement
19 between a broker and the client.
20 (2) Promote the best interest of the client by:
21 (A) Seeking a transaction at the price and
22 terms stated in the brokerage agreement or at a
23 price and terms otherwise acceptable to the client.
24 (B) Timely presenting all offers to and from
25 the client, unless the client has waived this duty.
26 (C) Disclosing to the client material facts
27 concerning the transaction of which the licensee has
28 actual knowledge, unless that information is
29 confidential information. Material facts do not
30 include the following when located on or related to
31 real estate that is not the subject of the
32 transaction: (i) physical conditions that do not
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1 have a substantial adverse effect on the value of
2 the real estate, (ii) fact situations, or (iii)
3 occurrences.
4 (D) Timely accounting for all money and
5 property received in which the client has, may have,
6 or should have had an interest.
7 (E) Obeying specific directions of the client
8 that are not otherwise contrary to applicable
9 statutes, ordinances, or rules.
10 (F) Acting in a manner consistent with
11 promoting the client's best interests as opposed to
12 a licensee's or any other person's self-interest.
13 (3) Exercise reasonable skill and care in the
14 performance of brokerage services.
15 (4) Keep confidential all confidential information
16 received from the client.
17 (5) Comply with all requirements of this Act and
18 all applicable statutes and regulations, including
19 without limitation fair housing and civil rights
20 statutes.
21 (b) A licensee representing a client does not breach a
22 duty or obligation to the client by showing alternative
23 properties to prospective buyers or tenants or by showing
24 properties in which the client is interested to other
25 prospective buyers or tenants.
26 (c) A licensee representing a buyer or tenant client
27 will not be presumed to have breached a duty or obligation to
28 that client by working on the basis that the licensee will
29 receive a higher fee or compensation based on higher selling
30 price or lease cost.
31 (d) A licensee shall not be liable to a client for
32 providing false information to the client if the false
33 information was provided to the licensee by a customer unless
34 the licensee knew or should have known the information was
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1 false.
2 (e) Nothing in the Section shall be construed as
3 changing a licensee's duty under common law as to negligent
4 or fraudulent misrepresentation of material information.
5 Section 15-20. Failure to disclose information not
6 affecting physical condition. No cause of action shall arise
7 against a licensee for the failure to disclose: (i) that an
8 occupant of the property was afflicted with Human
9 Immunodeficiency Virus (HIV) or any other medical condition
10 (ii) that the property was the site of an act or occurrence
11 that had no effect on the physical condition of the property
12 or its environment or the structures located thereon; (iii)
13 fact situations on property that is not the subject of the
14 transaction; or (iv) physical conditions located on property
15 that is not the subject of the transaction that do not have a
16 substantial adverse effect on the value of the real estate
17 that is the subject of the transaction.
18 Section 15-25. Licensee's relationship with customers.
19 (a) Licensees shall treat all customers honestly and
20 shall not negligently or knowingly give them false
21 information. A licensee engaged by a seller client shall
22 timely disclose to customers who are prospective buyers all
23 latent material adverse facts pertaining to the physical
24 condition of the property that are actually known by the
25 licensee and that could not be discovered by a reasonably
26 diligent inspection of the property by the customer. A
27 licensee shall not be liable to a customer for providing
28 false information to the customer if the false information
29 was provided to the licensee by the licensee's client and the
30 licensee did not have actual knowledge that the information
31 was false. No cause of action shall arise on behalf of any
32 person against a licensee for revealing information in
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1 compliance with this Section.
2 (b) A licensee representing a client in a real estate
3 transaction may provide assistance to a customer by
4 performing ministerial acts. Performing those ministerial
5 acts shall not be construed in a manner that would violate
6 the brokerage agreement with the client, and performing those
7 ministerial acts for the customer shall not be construed in a
8 manner as to form a brokerage agreement with the customer.
9 Section 15-30. Duties after termination of brokerage
10 agreement. Except as may be provided in a written agreement
11 between the broker and the client, neither a sponsoring
12 broker nor any licensee affiliated with the sponsoring broker
13 owes any further duties to the client after termination,
14 expiration, or completion of performance of the brokerage
15 agreement, except:
16 (1) to account for all moneys and property relating
17 to the transaction; and
18 (2) to keep confidential all confidential
19 information received during the course of the brokerage
20 agreement.
21 Section 15-35. Agency relationship disclosure.
22 (a) A consumer shall be advised of the following no
23 later than entering into a brokerage agreement with the
24 sponsoring broker:
25 (1) That a designated agency relationship exists,
26 unless there is written agreement between the sponsoring
27 broker and the consumer providing for a different
28 brokerage relationship.
29 (2) The name or names of his or her designated
30 agent or agents in writing.
31 (3) The sponsoring broker's compensation and policy
32 with regard to cooperating with brokers who represent
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1 other parties in a transaction.
2 (b) A licensee shall disclose in writing to a customer
3 that the licensee is not acting as the agent of the customer
4 at a time intended to prevent disclosure of confidential
5 information from a customer to a licensee, but in no event
6 later than the preparation of an offer to purchase or lease
7 real property. This subsection (b) does not apply to
8 residential lease or rental transactions unless the lease or
9 rental agreement includes an option to purchase real estate.
10 Section 15-40. Compensation does not determine agency.
11 Compensation does not determine agency relationship. The
12 payment or promise of payment of compensation to a licensee
13 is not determinative of whether an agency relationship has
14 been created between any licensee and a consumer.
15 Section 15-45. Dual agency.
16 (a) A licensee may act as a dual agent only with the
17 informed written consent of all clients. Informed written
18 consent shall be presumed to have been given by any client
19 who signs a document that includes the following:
20 "The undersigned (insert name(s)), ("Licensee"), may
21 undertake a dual representation (represent both the
22 seller or landlord and the buyer or tenant) for the sale
23 or lease of property. The undersigned acknowledge they
24 were informed of the possibility of this type of
25 representation. Before signing this document please read
26 the following: Representing more than one party to a
27 transaction presents a conflict of interest since both
28 clients may rely upon Licensee's advice and the client's
29 respective interests may be adverse to each other.
30 Licensee will undertake this representation only with the
31 written consent of ALL clients in the transaction. Any
32 agreement between the clients as to a final contract
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1 price and other terms is a result of negotiations between
2 the clients acting in their own best interests and on
3 their own behalf. You acknowledge that Licensee has
4 explained the implications of dual representation,
5 including the risks involved, and understand that you
6 have been advised to seek independent advice from your
7 advisors or attorneys before signing any documents in
8 this transaction.
9 WHAT A LICENSEE CAN DO FOR CLIENTS
10 WHEN ACTING AS A DUAL AGENT
11 1. Treat all clients honestly.
12 2. Provide information about the property to the buyer
13 or tenant.
14 3. Disclose all latent material defects in the property
15 that are known to the Licensee.
16 4. Disclose financial qualification of the buyer or
17 tenant to the seller or landlord.
18 5. Explain real estate terms.
19 6. Help the buyer or tenant to arrange for property
20 inspections.
21 7. Explain closing costs and procedures.
22 8. Help the buyer compare financing alternatives.
23 9. Provide information about comparable properties that
24 have sold so both clients may make educated decisions on
25 what price to accept or offer.
26 WHAT LICENSEE CANNOT DISCLOSE TO CLIENTS WHEN
27 ACTING AS A DUAL AGENT
28 1. Confidential information that Licensee may know about
29 a client, without that client's permission.
30 2. The price the seller or landlord will take other than
31 the listing price without permission of the seller or
32 landlord.
33 3. The price the buyer or tenant is willing to pay
34 without permission of the buyer or tenant.
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1 4. A recommended or suggested price the buyer or tenant
2 should offer.
3 5. A recommended or suggested price the seller or
4 landlord should counter with or accept.
5 If either client is uncomfortable with this
6 disclosure and dual representation, please let Licensee
7 know. You are not required to sign this document unless
8 you want to allow Licensee to proceed as a Dual Agent in
9 this transaction. By signing below, you acknowledge that
10 you have read and understand this form and voluntarily
11 consent to Licensee acting as a Dual Agent (that is, to
12 represent BOTH the seller or landlord and the buyer or
13 tenant) should that become necessary.".
14 (b) The dual agency disclosure form provided for in
15 subsection (a) of this Section must be presented by a
16 licensee, who offers dual representation, to the client at
17 the time the brokerage agreement is entered into and may be
18 signed by the client at that time or at any time before the
19 licensee acts as a dual agent as to the client.
20 (c) A licensee acting in a dual agency capacity in a
21 transaction must obtain a written confirmation from the
22 licensee's clients of their prior consent for the licensee to
23 act as a dual agent in the transaction. This confirmation
24 should be obtained at the time the clients are executing any
25 offer or contract to purchase or lease in a transaction in
26 which the licensee is acting as a dual agent. This
27 confirmation may be included in another document, such as a
28 contract to purchase, in which case the client must not only
29 sign the document but also initial the confirmation of dual
30 agency provision. That confirmation must state, at a
31 minimum, the following:
32 "The undersigned confirm that they have previously
33 consented to (insert name(s)), ("Licensee"), acting as a
34 Dual Agent in providing brokerage services on their
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1 behalf and specifically consent to Licensee acting as a
2 Dual Agent in regard to the transaction referred to in
3 this document.".
4 (d) No cause of action shall arise on behalf of any
5 person against a dual agent for making disclosures allowed or
6 required by this Article, and the dual agent does not
7 terminate any agency relationship by making the allowed or
8 required disclosures.
9 (e) In the case of dual agency, each client and the
10 licensee possess only actual knowledge and information.
11 There shall be no imputation of knowledge or information
12 among or between clients, brokers, or their affiliated
13 licensees.
14 (f) In any transaction, a licensee may without liability
15 withdraw from representing a client who has not consented to
16 a disclosed dual agency. The withdrawal shall not prejudice
17 the ability of the licensee to continue to represent the
18 other client in the transaction or limit the licensee from
19 representing the client in other transactions. When a
20 withdrawal as contemplated in this subsection (f) occurs, the
21 licensee shall not receive a referral fee for referring a
22 client to another licensee unless written disclosure is made
23 to both the withdrawing client and the client that continues
24 to be represented by the licensee.
25 Section 15-50. Designated agency.
26 (a) A sponsoring broker entering into an agreement with
27 any person for the listing of property or for the purpose of
28 representing any person in the buying, selling, exchanging,
29 renting, or leasing of real estate may specifically designate
30 those licensees employed by or affiliated with the sponsoring
31 broker who will be acting as legal agents of that person to
32 the exclusion of all other licensees employed by or
33 affiliated with the sponsoring broker. A sponsoring broker
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1 entering into an agreement under the provisions of this
2 Section shall not be considered to be acting for more than
3 one party in a transaction if the licensees specifically
4 designated as legal agents of a person are not representing
5 more than one party in a transaction.
6 (b) A sponsoring broker designating affiliated licensees
7 to act as agents of clients shall take ordinary and necessary
8 care to protect confidential information disclosed by a
9 client to his or her designated agent.
10 (c) A designated agent may disclose to his or her
11 sponsoring broker or persons specified by the sponsoring
12 broker confidential information of a client for the purpose
13 of seeking advice or assistance for the benefit of the client
14 in regard to a possible transaction. Confidential
15 information shall not be disclosed by the sponsoring broker
16 or other specified representative of the sponsoring broker
17 unless otherwise required by this Act or requested or
18 permitted by the client who originally disclosed the
19 confidential information.
20 Section 15-55. No subagency. A broker is not considered
21 to be a subagent of a client of another broker solely by
22 reason of membership or other affiliation by the brokers in a
23 multiple listing service or other similar information source,
24 and an offer of subagency may not be made through a multiple
25 listing service or other similar information source.
26 Section 15-60. Vicarious liability. A consumer shall not
27 be vicariously liable for the acts or omissions of a licensee
28 in providing licensed activities for or on behalf of the
29 consumer.
30 Section 15-65. Regulatory enforcement. Nothing contained
31 in this Article limits OBRE in its regulation of licensees
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1 under other Articles of this Act and the substantive rules
2 adopted by OBRE. OBRE, with the advice of the Board, is
3 authorized to promulgate any rules that may be necessary for
4 the implementation and enforcement of this Article 15.
5 Section 15-70. Actions for damages.
6 (a) In any action brought under this Article 15, the
7 court may, in its discretion, award only actual damages and
8 court costs or grant injunctive relief, when appropriate.
9 (b) Any action under this Article 15 shall be forever
10 barred unless commenced within 2 years after the person
11 bringing the action knew or should reasonably have known of
12 such act or omission. In no event shall the action be
13 brought more than 5 years after the date on which the act or
14 omission occurred. If the person entitled to bring the
15 action is under the age of 18 or under legal disability the
16 period of limitations shall not begin to run until the
17 disability is removed.
18 ARTICLE 20. DISCIPLINARY PROVISIONS
19 Section 20-5. Index of decisions. OBRE shall maintain an
20 index of formal decisions regarding the issuance, refusal to
21 issue, renewal, refusal to renew, revocation, and suspension
22 of licenses and probationary or other disciplinary action
23 taken under this Act on or after July 1, 1999. The decisions
24 shall be indexed according to the Sections of statutes and
25 the administrative rules, if any, that are the basis for the
26 decision. The index shall be available to the public during
27 regular business hours.
28 Section 20-10. Unlicensed practice; civil penalty.
29 (a) Any person who practices, offers to practice,
30 attempts to practice, or holds oneself out to practice as a
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1 real estate broker, real estate salesperson, or leasing agent
2 without being licensed under this Act shall, in addition to
3 any other penalty provided by law, pay a civil fine to OBRE
4 in an amount not to exceed $25,000 for each offense as
5 determined by OBRE. The civil fine shall be assessed by OBRE
6 after a hearing is held in accordance with the provisions set
7 forth in this Act regarding the provision of a hearing for
8 the discipline of a license.
9 (b) OBRE has the authority and power to investigate any
10 and all unlicensed activity.
11 (c) The civil fine shall be paid within 60 days after
12 the effective date of the order imposing the civil fine. The
13 order shall constitute a judgement and may be filed and
14 execution had thereon in the same manner from any court of
15 record.
16 Section 20-15. Violations. The commission of a single
17 act prohibited by this Act or prohibited by the rules
18 promulgated under this Act or a violation of a disciplinary
19 order issued under this Act constitutes a violation of this
20 Act.
21 Section 20-20. Disciplinary actions; causes. OBRE may
22 refuse to issue or renew a license, may place on probation,
23 suspend, or revoke any license, or may censure, reprimand, or
24 otherwise discipline or impose a civil fine not to exceed
25 $25,000 upon any licensee hereunder for any one or any
26 combination of the following causes:
27 (a) When the applicant or licensee has, by false or
28 fraudulent representation, obtained or sought to obtain a
29 license.
30 (b) When the applicant or licensee has been convicted of
31 any crime, an essential element of which is dishonesty or
32 fraud or larceny, embezzlement, or obtaining money, property,
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1 or credit by false pretenses or by means of a confidence
2 game, has been convicted in this or another state of a crime
3 that is a felony under the laws of this State, or has been
4 convicted of a felony in a federal court.
5 (c) When the applicant or licensee has been adjudged to
6 be a person under legal disability or subject to involuntary
7 admission or to meet the standard for judicial admission as
8 provided in the Mental Health and Developmental Disabilities
9 Code.
10 (d) When the licensee performs or attempts to perform
11 any act as a broker or salesperson in a retail sales
12 establishment from an office, desk, or space that is not
13 separated from the main retail business by a separate and
14 distinct area within the establishment.
15 (e) Discipline of a licensee by another state, the
16 District of Columbia, a territory, a foreign nation, a
17 governmental agency, or any other entity authorized to impose
18 discipline if at least one of the grounds for that discipline
19 is the same as or the equivalent of one of the grounds for
20 discipline set forth in this Act, in which case the only
21 issue will be whether one of the grounds for that discipline
22 is the same or equivalent to one of the grounds for
23 discipline under this Act.
24 (f) When the applicant or licensee has engaged in real
25 estate activity without a license or after the licensee's
26 license was expired or while the license was inoperative.
27 (g) When the applicant or licensee attempts to subvert
28 or cheat on the Real Estate License Exam or continuing
29 education exam or aids and abets an applicant to subvert or
30 cheat on the Real Estate License Exam or continuing education
31 exam administered pursuant to this Act.
32 (h) When the licensee in performing, attempting to
33 perform, or pretending to perform any act as a broker,
34 salesperson, or leasing agent or when the licensee in
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1 handling his or her own property, whether held by deed,
2 option, or otherwise, is found guilty of:
3 (1) Making any substantial misrepresentation or
4 untruthful advertising.
5 (2) Making any false promises of a character likely
6 to influence, persuade, or induce.
7 (3) Pursuing a continued and flagrant course of
8 misrepresentation or the making of false promises through
9 licensees, employees, agents, advertising, or otherwise.
10 (4) Any misleading or untruthful advertising, or
11 using any trade name or insignia of membership in any
12 real estate organization of which the licensee is not a
13 member.
14 (5) Acting for more than one party in a transaction
15 without providing written notice to all parties for whom
16 the licensee acts.
17 (6) Representing or attempting to represent a
18 broker other than the sponsoring broker.
19 (7) Failure to account for or to remit any moneys
20 or documents coming into his or her possession that
21 belong to others.
22 (8) Failure to maintain and deposit in a special
23 account, separate and apart from personal and other
24 business accounts, all escrow moneys belonging to others
25 entrusted to a licensee while acting as a real estate
26 broker, escrow agent, or temporary custodian of the funds
27 of others or failure to maintain all escrow moneys on
28 deposit in the account until the transactions are
29 consummated or terminated, except to the extent that the
30 moneys, or any part thereof, shall be disbursed prior to
31 the consummation or termination in accordance with (i)
32 the written direction of the principals to the
33 transaction or their duly authorized agents, (ii)
34 directions providing for the release, payment, or
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1 distribution of escrow moneys contained in any written
2 contract signed by the principals to the transaction or
3 their duly authorized agents, or (iii) pursuant to an
4 order of a court of competent jurisdiction. The account
5 shall be noninterest bearing, unless the character of the
6 deposit is such that payment of interest thereon is
7 otherwise required by law or unless the principals to the
8 transaction specifically require, in writing, that the
9 deposit be placed in an interest bearing account.
10 (9) Failure to make available to the real estate
11 enforcement personnel of OBRE during normal business
12 hours all escrow records and related documents maintained
13 in connection with the practice of real estate within 24
14 hours of a request for those documents by OBRE personnel.
15 (10) Failing to furnish copies upon request of all
16 documents relating to a real estate transaction to all
17 parties executing them.
18 (11) Failure of a sponsoring broker to timely
19 provide information, sponsor cards, or termination of
20 licenses to OBRE.
21 (12) Engaging in dishonorable, unethical, or
22 unprofessional conduct of a character likely to deceive,
23 defraud, or harm the public.
24 (13) Commingling the money or property of others
25 with his or her own.
26 (14) Employing any person on a purely temporary or
27 single deal basis as a means of evading the law regarding
28 payment of commission to nonlicensees on some
29 contemplated transactions.
30 (15) Permitting the use of his or her license as a
31 broker to enable a salesperson or unlicensed person to
32 operate a real estate business without actual
33 participation therein and control thereof by the broker.
34 (16) Any other conduct, whether of the same or a
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1 different character from that specified in this Section,
2 that constitutes dishonest dealing.
3 (17) Displaying a "for rent" or "for sale" sign on
4 any property without the written consent of an owner or
5 his or her duly authorized agent or advertising by any
6 means that any property is for sale or for rent without
7 the written consent of the owner or his or her authorized
8 agent.
9 (18) Failing to provide information requested by
10 OBRE, within 30 days of the request, either as the result
11 of a formal or informal complaint to OBRE or as a result
12 of a random audit conducted by OBRE, which would indicate
13 a violation of this Act.
14 (19) Advertising by means of a blind advertisement,
15 except as otherwise permitted in Section 10-30 of this
16 Act.
17 (20) Offering guaranteed sales plans, as defined in
18 clause (A) of this subdivision (20), except to the extent
19 hereinafter set forth:
20 (A) A "guaranteed sales plan" is any real
21 estate purchase or sales plan whereby a licensee
22 enters into a conditional or unconditional written
23 contract with a seller by the terms of which a
24 licensee agrees to purchase a property of the seller
25 within a specified period of time at a specific
26 price in the event the property is not sold in
27 accordance with the terms of a listing contract
28 between the sponsoring broker and the seller or on
29 other terms acceptable to the seller.
30 (B) A licensee offering a guaranteed sales
31 plan shall provide the details and conditions of the
32 plan in writing to the party to whom the plan is
33 offered.
34 (C) A licensee offering a guaranteed sales
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1 plan shall provide to the party to whom the plan is
2 offered evidence of sufficient financial resources
3 to satisfy the commitment to purchase undertaken by
4 the broker in the plan.
5 (D) Any licensee offering a guaranteed sales
6 plan shall undertake to market the property of the
7 seller subject to the plan in the same manner in
8 which the broker would market any other property,
9 unless the agreement with the seller provides
10 otherwise.
11 (E) Any licensee who fails to perform on a
12 guaranteed sales plan in strict accordance with its
13 terms shall be subject to all the penalties provided
14 in this Act for violations thereof and, in addition,
15 shall be subject to a civil fine payable to the
16 party injured by the default in an amount of up to
17 $25,000.
18 (21) Influencing or attempting to influence, by any
19 words or acts, a prospective seller, purchaser, occupant,
20 landlord, or tenant of real estate, in connection with
21 viewing, buying, or leasing real estate, so as to promote
22 or tend to promote the continuance or maintenance of
23 racially and religiously segregated housing or so as to
24 retard, obstruct, or discourage racially integrated
25 housing on or in any street, block, neighborhood, or
26 community.
27 (22) Engaging in any act that constitutes a
28 violation of any provision of Article 3 of the Illinois
29 Human Rights Act, whether or not a complaint has been
30 filed with or adjudicated by the Human Rights Commission.
31 (23) Inducing any party to a contract of sale or
32 lease or brokerage agreement to break the contract of
33 sale or lease or brokerage agreement for the purpose of
34 substituting, in lieu thereof, a new contract for sale or
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1 lease or brokerage agreement with a third party.
2 (24) Negotiating a sale, exchange, or lease of real
3 estate directly with any person if the licensee knows
4 that the person has a written exclusive brokerage
5 agreement with another broker, unless specifically
6 authorized by that broker.
7 (25) When a licensee is also an attorney, acting as
8 the attorney for either the buyer or the seller in the
9 same transaction in which the licensee is acting or has
10 acted as a broker or salesperson.
11 (26) Advertising or offering merchandise or
12 services as free if any conditions or obligations
13 necessary for receiving the merchandise or services are
14 not disclosed in the same advertisement or offer. These
15 conditions or obligations include without limitation the
16 requirement that the recipient attend a promotional
17 activity or visit a real estate site. As used in this
18 subdivision (26), "free" includes terms such as "award",
19 "prize", "no charge," "free of charge," "without charge",
20 and similar words or phrases that reasonably lead a
21 person to believe that he or she may receive or has been
22 selected to receive something of value, without any
23 conditions or obligations on the part of the recipient.
24 (27) Disregarding or violating any provision of the
25 Land Sales Registration Act of 1989, the Illinois Real
26 Estate Time-Share Act, or the published rules promulgated
27 by OBRE to enforce those Acts.
28 (28) Violating the terms of a disciplinary order
29 issued by OBRE.
30 (29) Paying compensation in violation of Article 10
31 of this Act.
32 (30) Requiring a party to a transaction who is not
33 a client of the licensee to allow the licensee to retain
34 a portion of the escrow moneys for payment of the
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1 licensee's commission or expenses as a condition for
2 release of the escrow moneys to that party.
3 (31) Disregarding or violating any provision of
4 this Act or the published rules promulgated by OBRE to
5 enforce this Act or aiding or abetting any individual,
6 partnership, registered limited liability partnership,
7 limited liability company, or corporation in disregarding
8 any provision of this Act or the published rules
9 promulgated by OBRE to enforce this Act.
10 Section 20-25. Returned checks; fees. Any person who
11 delivers a check or other payment to OBRE that is returned to
12 OBRE unpaid by the financial institution upon which it is
13 drawn shall pay to OBRE, in addition to the amount already
14 owed to OBRE, a fee of $50. The fees imposed by this Section
15 are in addition to any other discipline provided under this
16 Act for unlicensed practice or practice on a nonrenewed
17 license. OBRE shall notify the person that payment of fees
18 and fines shall be paid to OBRE by certified check or money
19 order within 30 calendar days of the notification. If, after
20 the expiration of 30 days from the date of the notification,
21 the person has failed to submit the necessary remittance,
22 OBRE shall automatically terminate the license or deny the
23 application, without hearing. If, after termination or
24 denial, the person seeks a license, he or she shall apply to
25 OBRE for restoration or issuance of the license and pay all
26 fees and fines due to OBRE. OBRE may establish a fee for the
27 processing of an application for restoration of a license to
28 pay all expenses of processing this application. The
29 Commissioner may waive the fees due under this Section in
30 individual cases where the Commissioner finds that the fees
31 would be unreasonable or unnecessarily burdensome.
32 Section 20-30. Standards of practice of leasing agents;
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1 disciplinary procedures. OBRE may by rule, with the advice of
2 the Board, prescribe standards of practice to be followed by
3 licensed leasing agents. Standards of practice shall include
4 without limitation acts or omissions that leasing agents are
5 prohibited from engaging in, disciplinary procedures, and
6 penalties for violating provisions of this Act. Disciplinary
7 procedures shall conform with disciplinary procedures for
8 licensed real estate brokers and salespersons. Complaints
9 shall be heard as provided for in this Act.
10 Section 20-35. Violations of tax Acts. OBRE may refuse
11 to issue or renew or may suspend the license of any person
12 who fails to file a return, pay the tax, penalty, or interest
13 shown in a filed return, or pay any final assessment of tax,
14 penalty, or interest, as required by any tax Act administered
15 by the Department of Revenue, until such time as the
16 requirements of any such tax Act are satisfied.
17 Section 20-40. Disciplinary action for educational loan
18 defaults. OBRE shall deny a license or renewal authorized by
19 this Act to a person who has defaulted on an educational loan
20 or scholarship provided or guaranteed by the Illinois Student
21 Assistance Commission or any governmental agency of this
22 State; however, OBRE may issue a license or renewal if the
23 person has established a satisfactory repayment record as
24 determined by the Illinois Student Assistance Commission or
25 other appropriate governmental agency of this State.
26 Additionally, a license issued by OBRE may be suspended or
27 revoked if the Commissioner, after the opportunity for a
28 hearing under this Article, finds that the licensee has
29 failed to make satisfactory repayment to the Illinois Student
30 Assistance Commission for a delinquent or defaulted loan.
31 Section 20-45. Nonpayment of child support. In cases in
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1 which the Department of Public Aid has previously determined
2 that a licensee or a potential licensee is more than 30 days
3 delinquent in the payment of child support and has
4 subsequently certified the delinquency to OBRE, OBRE may
5 refuse to issue or renew or may revoke or suspend that
6 person's license or may take other disciplinary action
7 against that person based solely upon the certification of
8 delinquency made by the Department of Public Aid.
9 Redetermination of the delinquency by OBRE shall not be
10 required. In cases regarding the renewal of a license, OBRE
11 shall not renew any license if the Department of Public Aid
12 has certified the licensee to be more than 30 days delinquent
13 in the payment of child support unless the licensee has
14 arranged for payment of past and current child support
15 obligations in a manner satisfactory to the Department of
16 Public Aid. OBRE may impose conditions, restrictions, or
17 disciplinary action upon that renewal.
18 Section 20-50. Illegal discrimination. When there has
19 been an adjudication in a civil or criminal proceeding that a
20 licensee has illegally discriminated while engaged in any
21 activity for which a license is required under this Act,
22 OBRE, upon the recommendation of the Board as to the extent
23 of the suspension or revocation, shall suspend or revoke the
24 license of that licensee in a timely manner, unless the
25 adjudication is in the appeal process. When there has been an
26 order in an administrative proceeding finding that a licensee
27 has illegally discriminated while engaged in any activity for
28 which a license is required under this Act, OBRE, upon
29 recommendation of the Board as to the nature and extent of
30 the discipline, shall take one or more of the disciplinary
31 actions provided for in Section 20-20 of this Act in a timely
32 manner, unless the administrative order is in the appeal
33 process.
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1 Section 20-55. Illinois Administrative Procedure Act.
2 The Illinois Administrative Procedure Act is hereby expressly
3 adopted and incorporated herein as if all of the provisions
4 of that Act were included in this Act, except that the
5 provision of subsection (d) of Section 10-65 of the Illinois
6 Administrative Procedure Act that provides that at hearings
7 the licensee has the right to show compliance with all lawful
8 requirements for retention, continuation, or renewal of the
9 license is specifically excluded. For the purposes of this
10 Act, the notice required under the Illinois Administrative
11 Procedure Act is deemed sufficient when mailed to the last
12 known address of a party.
13 Section 20-60. Hearing; investigation; notice;
14 disciplinary consent order.
15 (a) OBRE may conduct hearings through the Board or a
16 duly appointed hearing officer on proceedings to suspend,
17 revoke, or to refuse to issue or renew licenses of persons
18 applying for licensure or licensed under this Act or to
19 censure, reprimand, or impose a civil fine not to exceed
20 $25,000 upon any licensee hereunder and may revoke, suspend,
21 or refuse to issue or renew these licenses or censure,
22 reprimand, or impose a civil fine not to exceed $25,000 upon
23 any licensee hereunder.
24 (b) Upon the motion of either OBRE or the Board or upon
25 the verified complaint in writing of any persons setting
26 forth facts that if proven would constitute grounds for
27 suspension or revocation under this Act, OBRE, the Board, or
28 its subcommittee shall cause to be investigated the actions
29 of any person so accused who holds a license or is holding
30 himself or herself out to be a licensee. This person is
31 hereinafter called the accused.
32 (c) Prior to initiating any formal disciplinary
33 proceedings resulting from an investigation conducted
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1 pursuant to subsection (b) of this Section, that matter shall
2 be reviewed by a subcommittee of the Board according to
3 procedures established by rule. The subcommittee shall make a
4 recommendation to the full Board as to the validity of the
5 complaint and may recommend that the Board not proceed with
6 formal disciplinary proceedings if the complaint is
7 determined to be frivolous or without merit.
8 (d) Except as provided for in Section 20-65 of this Act,
9 OBRE shall, before suspending, revoking, placing on
10 probationary status, or taking any other disciplinary action
11 as OBRE may deem proper with regard to any license:
12 (1) notify the accused in writing at least 30 days
13 prior to the date set for the hearing of any charges made
14 and the time and place for the hearing of the charges to
15 be heard before the Board under oath; and
16 (2) inform the accused that upon failure to file an
17 answer and request a hearing before the date originally
18 set for the hearing, default will be taken against the
19 accused and his or her license may be suspended, revoked,
20 or placed on probationary status, or other disciplinary
21 action, including limiting the scope, nature, or extent
22 of the accused's practice, as OBRE may deem proper, may
23 be taken with regard thereto.
24 In case the person fails to file an answer after
25 receiving notice, his or her license may, in the discretion
26 of OBRE, be suspended, revoked, or placed on probationary
27 status, or OBRE may take whatever disciplinary action deemed
28 proper, including limiting the scope, nature, or extent of
29 the person's practice or the imposition of a fine, without a
30 hearing, if the act or acts charged constitute sufficient
31 grounds for such action under this Act.
32 (e) At the time and place fixed in the notice, the Board
33 shall proceed to hearing of the charges and both the accused
34 person and the complainant shall be accorded ample
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1 opportunity to present in person or by counsel such
2 statements, testimony, evidence and argument as may be
3 pertinent to the charges or to any defense thereto. The
4 Board or its hearing officer may continue a hearing date upon
5 its own motion or upon an accused's motion for one period not
6 to exceed 30 days. The Board or its hearing officer may
7 grant further continuances for periods not to exceed 30 days
8 only upon good cause being shown by the moving party. The
9 non-moving party shall have the opportunity to object to a
10 continuance on the record at a hearing upon the motion to
11 continue. All motions for continuances and any denial or
12 grant thereof shall be in writing. All motions shall be
13 submitted not later than 48 hours before the scheduled
14 hearing unless made upon an emergency basis. In determining
15 whether good cause for a continuance is shown, the Board or
16 its hearing officer shall consider such factors as the volume
17 of cases pending, the nature and complexity of legal issues
18 raised, the diligence of the party making the request, the
19 availability of party's legal representative or witnesses,
20 and the number of previous requests for continuance.
21 (f) Any unlawful act or violation of any of the
22 provisions of this Act upon the part of any licensees
23 employed by a real estate broker or associated by written
24 agreement with the real estate broker, or unlicensed employee
25 of a licensed broker, shall not be cause for the revocation
26 of the license of any such broker, partial or otherwise,
27 unless it appears to the satisfaction of OBRE that the broker
28 had knowledge thereof.
29 (g) OBRE or the Board has power to subpoena any persons
30 or documents for the purpose of investigation or hearing with
31 the same fees and mileage and in the same manner as
32 prescribed by law for judicial procedure in civil cases in
33 courts of this State. The Commissioner, the Director, any
34 member of the Board, a certified court reporter, or a hearing
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1 officer shall each have power to administer oaths to
2 witnesses at any hearing which OBRE is authorized under this
3 Act to conduct.
4 (h) Any circuit court or any judge thereof, upon the
5 application of the accused person, complainant, OBRE, or the
6 Board, may, by order entered, require the attendance of
7 witnesses and the production of relevant books and papers
8 before the Board in any hearing relative to the application
9 for or refusal, recall, suspension, or revocation of a
10 license, and the court or judge may compel obedience to the
11 court's or the judge's order by proceedings for contempt.
12 (i) OBRE, at its expense, shall preserve a record of all
13 proceedings at the formal hearing of any case involving the
14 refusal to issue or the revocation, suspension, or other
15 discipline of a licensee. The notice of hearing, complaint
16 and all other documents in the nature of pleadings and
17 written motions filed in the proceedings, the transcript of
18 testimony, the report of the Board, and the orders of OBRE
19 shall be the record of the proceeding. At all hearings or
20 pre-hearing conferences, OBRE and the accused shall be
21 entitled to have a court reporter in attendance for purposes
22 of transcribing the proceeding or pre-hearing conference at
23 the expense of the party requesting the court reporter's
24 attendance. A copy of the transcribed proceeding shall be
25 available to the other party for the cost of a copy of the
26 transcript.
27 (j) The Board shall present to the Commissioner its
28 written report of its findings and recommendations. A copy
29 of the report shall be served upon the accused, either
30 personally or by certified mail as provided in this Act for
31 the service of the citation. Within 20 days after the
32 service, the accused may present to the Commissioner a motion
33 in writing for a rehearing that shall specify the particular
34 grounds therefor. If the accused shall order and pay for a
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1 transcript of the record as provided in this Act, the time
2 elapsing thereafter and before the transcript is ready for
3 delivery to the accused shall not be counted as part of the
4 20 days. Whenever the Commissioner is satisfied that
5 substantial justice has not been done, the Commissioner may
6 order a rehearing by the Board or other special committee
7 appointed by the Commissioner or may remand the matter to the
8 Board for their reconsideration of the matter based on the
9 pleadings and evidence presented to the Board. In all
10 instances, under this Act, in which the Board has rendered a
11 recommendation to the Commissioner with respect to a
12 particular licensee or applicant, the Commissioner shall, in
13 the event that he or she disagrees with or takes action
14 contrary to the recommendation of the Board, file with the
15 Board and the Secretary of State his specific written reasons
16 of disagreement with the Board. The reasons shall be filed
17 within 60 days of the Board's recommendation to the
18 Commissioner and prior to any contrary action. At the
19 expiration of the time specified for filing a motion for a
20 rehearing, the Commissioner shall have the right to take the
21 action recommended by the Board. Upon the suspension or
22 revocation of a license, the licensee shall be required to
23 surrender his or her license to OBRE, and upon failure or
24 refusal to do so, OBRE shall have the right to seize the
25 license.
26 (k) At any time after the suspension or revocation of
27 any license, OBRE may restore it to the accused without
28 examination, upon the written recommendation of the Board.
29 (l) An order of revocation or suspension or a certified
30 copy thereof, over the seal of OBRE and purporting to be
31 signed by the Commissioner, shall be prima facie proof that:
32 (1) The signature is the genuine signature of the
33 Commissioner.
34 (2) The Commissioner is duly appointed and
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1 qualified.
2 (3) The Board and the members thereof are
3 qualified.
4 Such proof may be rebutted.
5 (m) Notwithstanding any provisions concerning the
6 conduct of hearings and recommendations for disciplinary
7 actions, OBRE as directed by the Commissioner has the
8 authority to negotiate agreements with licensees and
9 applicants resulting in disciplinary consent orders. These
10 consent orders may provide for any of the forms of discipline
11 provided in this Act. These consent orders shall provide
12 that they were not entered into as a result of any coercion
13 by OBRE. Any such consent order shall be filed with the
14 Commissioner along with the Board's recommendation and
15 accepted or rejected by the Commissioner within 60 days of
16 the Board's recommendation.
17 Section 20-65. Temporary suspension. The Commissioner
18 may temporarily suspend the license of a licensee without a
19 hearing, simultaneously with the institution of proceedings
20 for a hearing provided for in Section 20-60 of this Act, if
21 the Commissioner finds that the evidence indicates that the
22 public interest, safety, or welfare imperatively requires
23 emergency action. In the event that the Commissioner
24 temporarily suspends the license without a hearing before the
25 Board, a hearing shall be held within 30 days after the
26 suspension has occurred. The suspended licensee may seek a
27 continuance of the hearing during which the suspension shall
28 remain in effect. The proceeding shall be concluded without
29 appreciable delay.
30 Section 20-70. Restoration of license. At any time
31 after the suspension, revocation, placement on probationary
32 status, or other disciplinary action taken under this Act
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1 with reference to any license, OBRE may restore the license
2 to the licensee without examination, upon the written
3 recommendation of the Board.
4 Section 20-75. Administrative Review Law; certification
5 fee; summary report of final disciplinary actions. All final
6 administrative decisions of OBRE shall be subject to judicial
7 review pursuant to the provisions of the Administrative
8 Review Law and the rules adopted pursuant thereto. The term
9 "administrative decision" is defined in Section 3-101 of the
10 Administrative Review Law. OBRE shall not be required to
11 certify any record or file any answer or otherwise appear
12 unless the party filing the complaint pays to OBRE the
13 certification fee provided for by rule representing costs of
14 the certification. Failure on the part of the plaintiff to
15 make such a deposit shall be grounds for dismissal of the
16 action. OBRE shall prepare from time to time, but in no event
17 less often than once every other month, a summary report of
18 final disciplinary actions taken since the previous summary
19 report. The summary report shall contain a brief description
20 of the action that brought about the discipline and the final
21 disciplinary action taken. The summary report shall be made
22 available upon request.
23 Section 20-80. Penalties; injunction. Any person
24 violating any provision of this Act other than subdivision
25 (4) of subsection (h) of Section 20-20 and other than Section
26 5-15 or any person failing to account for or to remit any
27 moneys coming into his or her possession that belong to
28 others or commingling the money or other property of his or
29 her principal with his or her own, upon conviction for the
30 first offense, is guilty of a Class C misdemeanor, and if a
31 limited liability company, registered limited liability
32 partnership, or corporation, is guilty of a business offense
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1 and shall be fined not to exceed $2,000. Upon conviction of a
2 second or subsequent offense the violator, if an individual,
3 is guilty of a Class A misdemeanor, and if a limited
4 liability company, registered limited liability partnership,
5 or corporation, is guilty of a business offense and shall be
6 fined not less than $2,000 nor more than $5,000. Any person,
7 limited liability company, registered limited liability
8 partnership, or corporation violating any provision of
9 Section 5-15 of this Act, upon conviction for the first
10 offense, if an individual, is guilty of a Class A
11 misdemeanor, and if a limited liability company, registered
12 limited liability partnership, or corporation, is guilty of a
13 business offense and shall be fined not to exceed $10,000.
14 Upon conviction of a second or subsequent offense the
15 violator, if an individual, is guilty of a Class 4 felony,
16 and if a limited liability company, registered limited
17 liability partnership, or corporation, is guilty of a
18 business offense and shall be fined not less than $10,000 nor
19 more than $25,000. Any officer or agent of a corporation or
20 member or agent of a partnership, limited liability company,
21 or registered limited liability partnership who shall
22 personally participate in or be an accessory to any violation
23 of this Act by the corporation, limited liability company,
24 registered limited liability partnership, or partnership
25 shall be subject to the penalties herein prescribed for
26 individuals, and the State's Attorney of the county where the
27 offense is committed shall prosecute all persons violating
28 the provisions of this Act upon proper complaint being made.
29 All fines and penalties shall be deposited in the Real Estate
30 Recovery Fund in the State Treasury. OBRE shall have the duty
31 and the right on behalf of the People of the State of
32 Illinois to originate injunction proceedings against any
33 person acting or purporting to act as a licensee without a
34 license issued under the provisions of this Act. OBRE shall
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1 also have the duty and the right on behalf of the People of
2 the State of Illinois to originate injunction proceedings
3 against any licensee to enjoin acts by the licensee that
4 constitute violations of this Act.
5 Section 20-85. Recovery from Real Estate Recovery Fund.
6 OBRE shall maintain a Real Estate Recovery Fund from which
7 any person aggrieved by an act, representation, transaction,
8 or conduct of a licensee or unlicensed employee of a licensee
9 that is in violation of this Act or the rules promulgated
10 pursuant thereto, constitutes embezzlement of money or
11 property, or results in money or property being unlawfully
12 obtained from any person by false pretenses, artifice,
13 trickery, or forgery or by reason of any fraud,
14 misrepresentation, discrimination, or deceit by or on the
15 part of any such licensee or the unlicensed employee of a
16 licensee and that results in a loss of actual cash money, as
17 opposed to losses in market value, may recover. The aggrieved
18 person may recover, by order of the circuit court of the
19 county where the violation occurred, an amount of not more
20 than $10,000 from the Fund for damages sustained by the act,
21 representation, transaction, or conduct, together with costs
22 of suit and attorney's fees incurred in connection therewith
23 of not to exceed 15% of the amount of the recovery ordered
24 paid from the Fund. However, no licensed broker or
25 salesperson may recover from the Fund unless the court finds
26 that the person suffered a loss resulting from intentional
27 misconduct. The court order shall not include interest on
28 the judgment. The maximum liability against the Fund arising
29 out of any one act shall be as provided in this Section, and
30 the judgment order shall spread the award equitably among all
31 co-owners or otherwise aggrieved persons, if any. The maximum
32 liability against the Fund arising out of the activities of
33 any one licensee or one unlicensed employee of a licensee,
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1 since January 1, 1974, shall be $50,000. Nothing in this
2 Section shall be construed to authorize recovery from the
3 Fund unless the loss of the aggrieved person results from an
4 act or omission of a licensed broker, salesperson, or
5 unlicensed employee who was at the time of the act or
6 omission acting in such capacity or was apparently acting in
7 such capacity and unless the aggrieved person has obtained a
8 valid judgment as provided in Section 20-90 of this Act. No
9 person aggrieved by an act, representation, or transaction
10 that is in violation of the Illinois Real Estate Time-Share
11 Act or the Land Sales Registration Act of 1989 may recover
12 from the Fund.
13 Section 20-90. Collection from Real Estate Recovery
14 Fund; procedure.
15 (a) No action for a judgment that subsequently results
16 in an order for collection from the Real Estate Recovery Fund
17 shall be started later than 2 years after the date on which
18 the aggrieved person knew, or through the use of reasonable
19 diligence should have known, of the acts or omissions giving
20 rise to a right of recovery from the Real Estate Recovery
21 Fund.
22 (b) When any aggrieved person commences action for a
23 judgment that may result in collection from the Real Estate
24 Recovery Fund, the aggrieved person must name as parties
25 defendant to that action any and all individual real estate
26 brokers, real estate salespersons, or their employees who
27 allegedly committed or are responsible for acts or omissions
28 giving rise to a right of recovery from the Real Estate
29 Recovery Fund. Failure to name as parties defendant such
30 individual brokers, salespersons, or their employees shall
31 preclude recovery from the Real Estate Recovery Fund of any
32 portion of any judgment received in such an action. The
33 aggrieved party may also name as additional parties defendant
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1 any corporations, limited liability companies, partnerships,
2 registered limited liability partnership, or other business
3 associations that may be responsible for acts giving rise to
4 a right of recovery from the Real Estate Recovery Fund.
5 (c) When any aggrieved person commences action for a
6 judgment that may result in collection from the Real Estate
7 Recovery Fund, the aggrieved person must notify OBRE in
8 writing to this effect within 7 days of the commencement of
9 the action. Failure to so notify OBRE shall preclude
10 recovery from the Real Estate Recovery Fund of any portion of
11 any judgment received in such an action. After receiving
12 notice of the commencement of such an action, OBRE upon
13 timely application shall be permitted to intervene as a party
14 defendant to that action.
15 (d) When any aggrieved person commences action for a
16 judgment that may result in collection from the Real Estate
17 Recovery Fund, and the aggrieved person is unable to obtain
18 legal and proper service upon the defendant under the
19 provisions of Illinois law concerning service of process in
20 civil actions, the aggrieved person may petition the court
21 where the action to obtain judgment was begun for an order to
22 allow service of legal process on the Commissioner. Service
23 of process on the Commissioner shall be taken and held in
24 that court to be as valid and binding as if due service had
25 been made upon the defendant. In case any process mentioned
26 in this Section is served upon the Commissioner, the
27 Commissioner shall forward a copy of the process by certified
28 mail to the licensee's last address on record with OBRE. Any
29 judgment obtained after service of process on the
30 Commissioner under this Act shall apply to and be enforceable
31 against the Real Estate Recovery Fund only. OBRE may
32 intervene in and defend any such action.
33 (e) When an aggrieved party commences action for a
34 judgment that may result in collection from the Real Estate
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1 Recovery Fund, and the court before which that action is
2 commenced enters judgment by default against the defendant
3 and in favor of the aggrieved party, the court shall upon
4 motion of OBRE set aside that judgment by default. After
5 such a judgment by default has been set aside, OBRE shall
6 appear as party defendant to that action, and thereafter the
7 court shall require proof of the allegations in the pleadings
8 upon which relief is sought.
9 (f) The aggrieved person shall give written notice to
10 OBRE within 30 days of the entry of any judgment that may
11 result in collection from the Real Estate Recovery Fund. The
12 aggrieved person shall provide OBRE within 20 days prior
13 written notice of all supplementary proceedings so as to
14 allow OBRE to participate in all efforts to collect on the
15 judgment.
16 (g) When any aggrieved person recovers a valid judgment
17 in any court of competent jurisdiction against any licensee
18 or an unlicensed employee of any broker, upon the grounds of
19 fraud, misrepresentation, discrimination, or deceit, the
20 aggrieved person may, upon the termination of all
21 proceedings, including review and appeals in connection with
22 the judgment, file a verified claim in the court in which the
23 judgment was entered and, upon 30 days' written notice to
24 OBRE, and to the person against whom the judgment was
25 obtained, may apply to the court for an order directing
26 payment out of the Real Estate Recovery Fund of the amount
27 unpaid upon the judgment, not including interest on the
28 judgment, and subject to the limitations stated in Section
29 20-85 of this Act. The aggrieved person must set out in that
30 verified claim and at an evidentiary hearing to be held by
31 the court upon the application the aggrieved party shall be
32 required to show that the aggrieved person:
33 (1) Is not a spouse of the debtor or the personal
34 representative of such spouse.
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1 (2) Has complied with all the requirements of this
2 Section.
3 (3) Has obtained a judgment stating the amount
4 thereof and the amount owing thereon, not including
5 interest thereon, at the date of the application.
6 (4) Has made all reasonable searches and inquiries
7 to ascertain whether the judgment debtor is possessed of
8 real or personal property or other assets, liable to be
9 sold or applied in satisfaction of the judgment.
10 (5) By such search has discovered no personal or
11 real property or other assets liable to be sold or
12 applied, or has discovered certain of them, describing
13 them as owned by the judgment debtor and liable to be so
14 applied and has taken all necessary action and
15 proceedings for the realization thereof, and the amount
16 thereby realized was insufficient to satisfy the
17 judgment, stating the amount so realized and the balance
18 remaining due on the judgment after application of the
19 amount realized.
20 (6) Has diligently pursued all remedies against all
21 the judgment debtors and all other persons liable to the
22 aggrieved person in the transaction for which recovery is
23 sought from the Real Estate Recovery Fund, including the
24 filing of an adversary action to have the debts declared
25 non-dischargeable in any bankruptcy petition matter filed
26 by any judgment debtor or person liable to the aggrieved
27 person.
28 The aggrieved person shall also be required to prove the
29 amount of attorney's fees sought to be recovered and the
30 reasonableness of those fees up to the maximum allowed
31 pursuant to Section 20-85 of this Act.
32 (h) The court shall make an order directed to OBRE
33 requiring payment from the Real Estate Recovery Fund of
34 whatever sum it finds to be payable upon the claim, pursuant
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1 to and in accordance with the limitations contained in
2 Section 20-85 of this Act, if the court is satisfied, upon
3 the hearing, of the truth of all matters required to be shown
4 by the aggrieved person under subsection (g) of this Section
5 and that the aggrieved person has fully pursued and exhausted
6 all remedies available for recovering the amount awarded by
7 the judgment of the court.
8 (i) Should OBRE pay from the Real Estate Recovery Fund
9 any amount in settlement of a claim or toward satisfaction of
10 a judgment against a licensed broker or salesperson or an
11 unlicensed employee of a broker, the licensee's license shall
12 be automatically terminated upon the issuance of a court
13 order authorizing payment from the Real Estate Recovery Fund.
14 No petition for restoration of a license shall be heard until
15 repayment has been made in full, plus interest at the rate
16 prescribed in Section 12-109 of the Code of Civil Procedure
17 of the amount paid from the Real Estate Recovery Fund on
18 their account. A discharge in bankruptcy shall not relieve a
19 person from the penalties and disabilities provided in this
20 subsection (i).
21 (j) If, at any time, the money deposited in the Real
22 Estate Recovery Fund is insufficient to satisfy any duly
23 authorized claim or portion thereof, OBRE shall, when
24 sufficient money has been deposited in the Real Estate
25 Recovery Fund, satisfy such unpaid claims or portions
26 thereof, in the order that such claims or portions thereof
27 were originally filed, plus accumulated interest at the rate
28 prescribed in Section 12-109 of the Code of Civil Procedure.
29 Section 20-95. Power of OBRE to defend. When OBRE
30 receives any process, notice, order, or other document
31 provided for or required under Section 20-90 of this Act, it
32 may enter an appearance, file an answer, appear at the court
33 hearing, defend the action, or take whatever other action it
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1 deems appropriate on behalf and in the name of the defendant
2 and take recourse through any appropriate method of review on
3 behalf of and in the name of the defendant.
4 Section 20-100. Subrogation of OBRE to rights of
5 judgment creditor. When, upon the order of the court, OBRE
6 has paid from the Real Estate Recovery Fund any sum to the
7 judgment creditor, OBRE shall be subrogated to all of the
8 rights of the judgment creditor and the judgment creditor
9 shall assign all rights, title, and interest in the judgment
10 to OBRE and any amount and interest so recovered by OBRE on
11 the judgment shall be deposited in the Real Estate Recovery
12 Fund.
13 Section 20-105. Waiver of rights for failure to comply.
14 The failure of an aggrieved person to comply with this Act
15 relating to the Real Estate Recovery Fund shall constitute a
16 waiver of any rights under Sections 20-85 and 20-90 of this
17 Act.
18 Section 20-110. Disciplinary actions of OBRE not
19 limited. Nothing contained in Sections 20-80 through 20-100
20 of this Act limits the authority of OBRE to take disciplinary
21 action against any licensee for a violation of this Act or
22 the rules of OBRE, nor shall the repayment in full of all
23 obligations to the Real Estate Recovery Fund by any licensee
24 nullify or modify the effect of any other disciplinary
25 proceeding brought pursuant to this Act.
26 Section 20-115. Time limit on action. No action may be
27 taken by OBRE against any person for violation of the terms
28 of this Act or its rules unless the action is commenced
29 within 5 years after the occurrence of the alleged violation.
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1 Section 20-120. Action to enjoin. Engaging in business
2 as a licensee by any person in violation of this Act is
3 declared to be harmful to the public welfare and to be a
4 public nuisance. An action to enjoin any person from such
5 unlawful activity may be maintained in the name of the People
6 of the State of Illinois by the Attorney General, by the
7 State's Attorney of the county in which the action is
8 brought, by OBRE, or by any resident citizen. This remedy
9 shall be in addition to other remedies provided for violation
10 of this Act.
11 Section 20-125. No private right of action. Except as
12 otherwise expressly provided for in this Act, nothing in this
13 Act shall be construed to grant to any person a private right
14 of action for damages or to enforce the provisions of this
15 Act or the rules issued under this Act.
16 ARTICLE 25. ADMINISTRATION OF LICENSES
17 Section 25-5. OBRE; powers and duties. OBRE shall
18 exercise the powers and duties prescribed by the Civil
19 Administrative Code of Illinois for the administration of
20 licensing acts and shall exercise such other powers and
21 duties as are prescribed by this Act. OBRE may contract with
22 third parties for services necessary for the proper
23 administration of this Act.
24 Section 25-10. Real Estate Administration and
25 Disciplinary Board; duties. There is created the Real Estate
26 Administration and Disciplinary Board. The Board shall be
27 composed of 9 persons appointed by the Governor. Members
28 shall be appointed to the Board subject to the following
29 conditions:
30 (1) All members shall have been residents and
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1 citizens of this State for at least 6 years prior to the
2 date of appointment.
3 (2) Six members shall have been actively engaged as
4 brokers or salespersons or both for at least the 10 years
5 prior to the appointment.
6 (3) Three members of the Board shall be public
7 members who represent consumer interests.
8 None of these members shall be a person who is licensed
9 under this Act, the spouse of a person licensed under this
10 Act, or a person who has an ownership interest in a real
11 estate brokerage business. The members' terms shall be 4
12 years and the expiration of their terms shall be staggered.
13 Appointments to fill vacancies shall be for the unexpired
14 portion of the term. A member may be reappointed for
15 successive terms but no person shall be appointed to more
16 than 2 terms or any part thereof in his or her lifetime.
17 Persons holding office as members of the Board immediately
18 prior to July 1, 1999 under the Real Estate License Act of
19 1983 shall continue as members of the Board until the
20 expiration of the term for which they were appointed and
21 until their successors are appointed and qualified. The
22 membership of the Board should reasonably reflect the
23 geographic distribution of the licensee population in this
24 State. In making the appointments, the Governor shall give
25 due consideration to the recommendations by members and
26 organizations of the profession. The Governor may terminate
27 the appointment of any member for cause that in the opinion
28 of the Governor reasonably justifies the termination. Cause
29 for termination shall include without limitation misconduct,
30 incapacity, neglect of duty, or missing 4 board meetings
31 during any one calendar year. Each member of the Board shall
32 receive a per diem stipend in an amount to be determined by
33 the Commissioner. Each member shall be paid his or her
34 necessary expenses while engaged in the performance of his or
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1 her duties. Such compensation and expenses shall be paid out
2 of the Real Estate License Administration Fund. The
3 Commissioner shall consider the recommendations of the Board
4 on questions involving standards of professional conduct,
5 discipline, and examination of candidates under this Act.
6 OBRE, after notifying and considering the recommendations of
7 the Board, if any, may issue rules, consistent with the
8 provisions of this Act, for the administration and
9 enforcement thereof and may prescribe forms that shall be
10 used in connection therewith. None of the functions, powers,
11 or duties enumerated in Sections 20-20 and 30-5 and
12 subsections (a) and (j) of Section 20-60 of this Act shall be
13 exercised by OBRE except upon the action and report in
14 writing of the Board.
15 Section 25-13. Rules. OBRE, after notifying and
16 considering the recommendations of the Board, if any, shall
17 adopt, promulgate, and issue any rules that may be necessary
18 for the implementation and enforcement of this Act.
19 Section 25-15. Director of Real Estate; duties. There
20 shall be in OBRE a Director and a Deputy Director of Real
21 Estate, appointed by the Commissioner, who shall hold a
22 currently valid broker's license, which shall be surrendered
23 to OBRE during the appointment. The Director of Real Estate
24 shall report to the Commissioner and shall do the following:
25 (1) act as Chairperson of the Board, ex-officio,
26 without vote;
27 (2) be the direct liaison between OBRE, the
28 profession, and real estate organizations and
29 associations;
30 (3) prepare and circulate to licensees any
31 educational and informational material that OBRE deems
32 necessary for providing guidance or assistance to
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1 licensees;
2 (4) appoint any necessary committees to assist in
3 the performance of the functions and duties of OBRE under
4 this Act; and
5 (5) subject to the administrative approval of the
6 Commissioner, supervise all real estate activities of
7 OBRE.
8 The Commissioner shall appoint, for a term of 4 years, a
9 Deputy Director of Real Estate who shall hold a currently
10 valid broker's license, which shall be surrendered to OBRE
11 during the appointment. Under direction of the Director of
12 Real Estate, the Deputy Director of Real Estate shall be
13 responsible for the administration of the licensing,
14 disciplinary, and education provisions of this Act. The
15 Deputy Director shall also assist the Director of Real Estate
16 in the performance of his or her duties.
17 In designating the Director and Deputy Director of Real
18 Estate, the Commissioner shall give due consideration to
19 recommendations by members and organizations of the
20 profession.
21 Section 25-20. Staff. OBRE shall employ sufficient staff
22 to carry out the provisions of this Act.
23 Section 25-25. Real Estate Research and Education Fund.
24 A special fund to be known as the Real Estate Research and
25 Education Fund is created and shall be held in trust in the
26 State Treasury. Annually, on September 15th, the State
27 Treasurer shall cause a transfer of $125,000 to the Real
28 Estate Research and Education Fund from the Real Estate
29 License Administration Fund. The Real Estate Research and
30 Education Fund shall be administered by OBRE. Money
31 deposited in the Real Estate Research and Education Fund may
32 be used for research and education at state institutions of
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1 higher education or other organizations for research and the
2 advancement of education in the real estate industry. Of the
3 $125,000 annually transferred into the Real Estate Research
4 and Education Fund, $15,000 shall be used to fund a
5 scholarship program for persons of minority racial origin who
6 wish to pursue a course of study in the field of real estate.
7 For the purposes of this Section, "course of study" means a
8 course or courses that are part of a program of courses in
9 the field of real estate designed to further an individual's
10 knowledge or expertise in the field of real estate. These
11 courses shall include without limitation courses that a
12 salesperson licensed under this Act must complete to qualify
13 for a real estate broker's license, courses required to
14 obtain the Graduate Realtors Institute designation, and any
15 other courses or programs offered by accredited colleges,
16 universities, or other institutions of higher education in
17 Illinois. The scholarship program shall be administered by
18 OBRE or its designee. Moneys in the Real Estate Research and
19 Education Fund may be invested and reinvested in the same
20 manner as funds in the Real Estate Recovery Fund and all
21 earnings, interest, and dividends received from such
22 investments shall be deposited in the Real Estate Research
23 and Education Fund and may be used for the same purposes as
24 moneys transferred to the Real Estate Research and Education
25 Fund.
26 Section 25-30. Real Estate License Administration Fund;
27 audit. A special fund to be known as the Real Estate License
28 Administration Fund is created in the State Treasury. All
29 fees received by OBRE under this Act shall be deposited in
30 the Real Estate License Administration Fund. The moneys
31 deposited in the Real Estate License Administration Fund
32 shall be appropriated to OBRE for expenses of OBRE and the
33 Board in the administration of this Act and for the
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1 administration of any Act administered by OBRE providing
2 revenue to this Fund. Moneys in the Real Estate License
3 Administration Fund may be invested and reinvested in the
4 same manner as funds in the Real Estate Recovery Fund. All
5 earnings received from such investment shall be deposited in
6 the Real Estate License Administration Fund and may be used
7 for the same purposes as fees deposited in the Real Estate
8 License Administration Fund. Upon the completion of any audit
9 of OBRE, as prescribed by the Illinois State Auditing Act,
10 which includes an audit of the Real Estate License
11 Administration Fund, OBRE shall make the audit open to
12 inspection by any interested person.
13 Section 25-35. Real Estate Recovery Fund. A special fund
14 to be known as the Real Estate Recovery Fund is created in
15 the State Treasury. The sums received by OBRE pursuant to
16 the provisions of Sections 20-20, 20-30, and 20-80 through
17 20-100 of this Act shall be deposited into the State Treasury
18 and held in the Real Estate Recovery Fund. The money in the
19 Real Estate Recovery Fund shall be used by OBRE exclusively
20 for carrying out the purposes established by this Act. If,
21 at any time, the balance remaining in the Real Estate
22 Recovery Fund is less than $750,000, the State Treasurer
23 shall cause a transfer of moneys to the Real Estate Recovery
24 Fund from the Real Estate License Administration Fund in an
25 amount necessary to establish a balance of $800,000 in the
26 Real Estate Recovery Fund. These funds may be invested and
27 reinvested in the same manner as authorized for pension funds
28 in Article 14 of the Illinois Pension Code. All earnings,
29 interest, and dividends received from investment of funds in
30 the Real Estate Recovery Fund shall be deposited into the
31 Real Estate License Administration Fund and shall be used for
32 the same purposes as other moneys deposited in the Real
33 Estate License Administration Fund.
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1 Section 25-40. Exclusive State powers and functions;
2 municipal powers. It is declared to be the public policy of
3 this State, pursuant to paragraphs (h) and (i) of Section 6
4 of Article VII of the Illinois Constitution of 1970, that any
5 power or function set forth in this Act to be exercised by
6 the State is an exclusive State power or function. Such
7 power or function shall not be exercised concurrently, either
8 directly or indirectly, by any unit of local government,
9 including home rule units, except as otherwise provided in
10 this Act. Nothing in this Section shall be construed to
11 affect or impair the validity of Section 11-11.1-1 of the
12 Illinois Municipal Code, as amended, or to deny to the
13 corporate authorities of any municipality the powers granted
14 in the Illinois Municipal Code to enact ordinances
15 prescribing fair housing practices; defining unfair housing
16 practices; establishing Fair Housing or Human Relations
17 Commissions and standards for the operation of these
18 commissions in the administration and enforcement of such
19 ordinances; prohibiting discrimination based on race, color,
20 creed, ancestry, national origin or physical or mental
21 handicap in the listing, sale, assignment, exchange,
22 transfer, lease, rental, or financing of real property for
23 the purpose of the residential occupancy thereof; and
24 prescribing penalties for violations of such ordinances.
25 ARTICLE 30. SCHOOLS AND INSTRUCTORS
26 Section 30-5. Licensing of pre-license schools, school
27 branches, and instructors.
28 (a) No person shall operate a pre-license school or
29 school branch without possessing a valid pre-license school
30 or school branch license issued by OBRE. No person shall act
31 as a pre-license instructor at a pre-license school or school
32 branch without possessing a valid pre-license instructor
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1 license issued by OBRE. Every person who desires to obtain a
2 pre-license school, school branch, or pre-license instructor
3 license shall make application to OBRE in writing in form and
4 substance satisfactory to OBRE and pay the required fees
5 prescribed by rule. In addition to any other information
6 required to be contained in the application, every
7 application for an original or renewed license shall include
8 the applicant's Social Security number. OBRE shall issue a
9 pre-license school, school branch, or pre-license instructor
10 license to applicants who meet qualification criteria
11 established by rule. OBRE may refuse to issue, suspend,
12 revoke, or otherwise discipline a pre-license school, school
13 branch, or pre-license instructor license or may withdraw
14 approval of a course offered by a pre-license school for good
15 cause. Disciplinary proceedings shall be conducted by the
16 Board in the same manner as other disciplinary proceedings
17 under this Act.
18 (b) All pre-license instructors must teach at least one
19 course within the period of licensure or take an instructor
20 training program approved by OBRE in lieu thereof. A
21 pre-license instructor may teach at more than one licensed
22 pre-license school.
23 (c) The term of license for pre-license schools,
24 branches, and instructors shall be 2 years as established by
25 rule.
26 (d) OBRE or the Advisory Council may, after notice,
27 cause a pre-license school to attend an informal conference
28 before the Advisory Council for failure to comply with any
29 requirement for licensure or for failure to comply with any
30 provision of this Act or the rules for the administration of
31 this Act. The Advisory Council shall make a recommendation
32 to the Board as a result of its findings at the conclusion of
33 any such informal conference.
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1 Section 30-10. Advisory Council; powers and duties.
2 There is created within OBRE an Advisory Council to be
3 comprised of 7 members appointed by the Governor for 4-year
4 staggered terms. No member shall serve more than 8 years in
5 a lifetime. Three of the members shall be licensees who are
6 current members of the Board, one member shall be a
7 representative of an Illinois real estate trade organization
8 who is not a member of the Board, one member shall be a
9 representative of a licensed pre-license school or continuing
10 education school, and one member shall be a representative of
11 an institution of higher education that offers pre-license
12 and continuing education courses. The Director shall serve
13 as the chairman of the Advisory Council, ex officio, without
14 vote. The Advisory Council shall recommend criteria for the
15 licensing of pre-license schools, pre-license instructors,
16 continuing education schools, and continuing education
17 instructors; review applications for these licenses to
18 determine if the applicants meet the qualifications for
19 licensure established in this Act and by rule; approve
20 pre-license school and continuing education curricula; and
21 make recommendations to the Board regarding rules to be
22 adopted for the administration of the education provisions of
23 this Act.
24 Section 30-15. Licensing of continuing education
25 schools; approval of courses.
26 (a) Only continuing education schools in possession of a
27 valid continuing education school license may provide real
28 estate continuing education courses that will satisfy the
29 requirements of this Act. Pre-license schools licensed to
30 offer pre-license education courses for salespersons and
31 brokers shall qualify for a continuing education school
32 license upon completion of an application and the submission
33 of the required fee. Every entity that desires to obtain a
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1 continuing education school license shall make application to
2 OBRE in writing in forms prescribed by OBRE and pay the fee
3 prescribed by rule. In addition to any other information
4 required to be contained in the application, every
5 application for an original or renewed license shall include
6 the applicant's Social Security number.
7 (b) The criteria for a continuing education license
8 shall include the following:
9 (1) A sound financial base for establishing,
10 promoting, and delivering the necessary courses. Budget
11 planning for the School's courses should be clearly
12 projected.
13 (2) A sufficient number of qualified, licensed
14 instructors as provided by rule.
15 (3) Adequate support personnel to assist with
16 administrative matters and technical assistance.
17 (4) Maintenance and availability of records of
18 participation for licensees.
19 (5) The ability to provide each participant who
20 successfully completes an approved program with a
21 certificate of completion signed by the administrator of
22 a licensed continuing education school on forms provided
23 by OBRE.
24 (6) The continuing education school must have a
25 written policy dealing with procedures for the management
26 of grievances and fee refunds.
27 (7) The continuing education school shall maintain
28 lesson plans and examinations for each course.
29 (8) The continuing education school shall require a
30 70% passing grade for successful completion of any
31 continuing education course.
32 (9) The continuing education school shall identify
33 and use instructors who will teach in a planned program.
34 Suggested criteria for instructor selections include:
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1 (A) appropriate credentials;
2 (B) competence as a teacher;
3 (C) knowledge of content area; and
4 (D) qualification by experience.
5 (c) Advertising and promotion of continuing education
6 activities must be carried out in a responsible fashion,
7 clearly showing the educational objectives of the activity,
8 the nature of the audience that may benefit from the
9 activity, the cost of the activity to the participant and the
10 items covered by the cost, the amount of credit that can be
11 earned, and the credentials of the faculty.
12 (d) OBRE may or upon request of the Advisory Council
13 shall, after notice, cause a continuing education school to
14 attend an informal conference before the Advisory Council for
15 failure to comply with any requirement for licensure or for
16 failure to comply with any provision of this Act or the rules
17 for the administration of this Act. The Advisory Council
18 shall make a recommendation to the Board as a result of its
19 findings at the conclusion of any such informal conference.
20 (e) All continuing education schools shall maintain
21 these minimum criteria and pay the required fee in order to
22 retain their continuing education school license.
23 (f) All continuing education schools shall submit, at
24 the time of initial application and with each license
25 renewal, a list of courses with course materials to be
26 offered by the continuing education school. OBRE, however,
27 shall establish a mechanism whereby continuing education
28 schools may apply for and obtain approval for continuing
29 education courses that are submitted after the time of
30 initial application or renewal. OBRE shall provide to each
31 continuing education school a certificate for each approved
32 continuing education course. All continuing education
33 courses shall be valid for the period coinciding with the
34 term of license of the continuing education school. All
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1 continuing education schools shall provide a copy of the
2 certificate of the continuing education course within the
3 course materials given to each student or shall display a
4 copy of the certificate of the continuing education course in
5 a conspicuous place at the location of the class.
6 (g) Each continuing education school shall provide to
7 OBRE a monthly report in a format determined by OBRE, with
8 information concerning students who successfully completed
9 all approved continuing education courses offered by the
10 continuing education school for the prior month.
11 (h) OBRE, upon the recommendation of the Advisory
12 Council, may temporarily suspend a licensed continuing
13 education school's approved courses without hearing and
14 refuse to accept successful completion of or participation in
15 any of these continuing education courses for continuing
16 education credit from that school upon the failure of that
17 continuing education school to comply with the provisions of
18 this Act or the rules for the administration of this Act,
19 until such time as OBRE receives satisfactory assurance of
20 compliance. OBRE shall notify the continuing education
21 school of the noncompliance and may initiate disciplinary
22 proceedings pursuant to this Act. OBRE may refuse to issue,
23 suspend, revoke, or otherwise discipline the license of a
24 continuing education school or may withdraw approval of a
25 continuing education course for good cause. Failure to
26 comply with the requirements of this Section or any other
27 requirements established by rule shall be deemed to be good
28 cause. Disciplinary proceedings shall be conducted by the
29 Board in the same manner as other disciplinary proceedings
30 under this Act.
31 Section 30-20. Fees for continuing education school
32 license; renewal; term. All applications for a continuing
33 education school license shall be accompanied by a
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1 nonrefundable application fee in an amount established by
2 rule. All continuing education schools shall be required to
3 submit a renewal application, the required fee as established
4 by rule, and a listing of the courses to be offered during
5 the year to renew their continuing education school licenses.
6 The term for a continuing education school license shall be 2
7 years and as established by rule. The fees collected under
8 this Article 30 shall be deposited in the Real Estate License
9 Administration Fund and shall be used to defray the cost of
10 administration of the program and per diem of the Advisory
11 Council as determined by the Commissioner.
12 Section 30-25. Licensing of continuing education
13 instructors.
14 (a) Only persons approved by the Advisory Council and in
15 possession of a valid continuing education instructor license
16 issued by OBRE may instruct continuing education courses.
17 (b) Every person who desires to obtain a continuing
18 education instructor license shall make application to OBRE
19 in writing on forms prescribed by the Office, accompanied by
20 the fee prescribed by rule. In addition to any other
21 information required to be contained in the application,
22 every application for an original or renewed license shall
23 include the applicant's Social Security number. OBRE shall
24 issue a continuing education instructor license to applicants
25 who meet qualification criteria established by this Act or
26 rule.
27 (c) OBRE may refuse to issue, suspend, revoke, or
28 otherwise discipline a continuing education instructor for
29 good cause. Disciplinary proceedings shall be conducted by
30 the Board in the same manner as other disciplinary
31 proceedings under this Act. The term of a license for a
32 continuing education instructor shall be 2 years and as
33 established by rule. All Continuing Education Instructors
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1 must teach at least one course within the period of licensure
2 or take an instructor training program approved by OBRE in
3 lieu thereof.
4 Section 30-30. Recommendation of rules. The Advisory
5 Council shall recommend to the Board rules that provide for
6 the administration of this Article 30. These rules shall
7 include without limitation the following provisions:
8 (1) The rules shall define what constitutes a
9 school or a school branch offering work in subjects
10 relating to real estate transactions that shall include
11 the subjects upon which an applicant is examined in
12 determining fitness to receive a license. The rules
13 shall provide for the establishment of a uniform and
14 reasonable standard of instruction and maintenance to be
15 observed by these schools.
16 (2) The rules shall establish minimum criteria to
17 qualify for and maintain a license as a pre-license
18 school, pre-license school instructor, continuing
19 education school, and continuing education instructor.
20 (3) The rules shall provide for acts and omissions
21 for which the license of a pre-license school,
22 pre-license school instructor, continuing education
23 school, or continuing education instructor may be
24 disciplined under this Act.
25 (4) The rules shall provide for the term, date of
26 expiration, and renewal process for the licenses of
27 pre-license schools, pre-license school instructors,
28 continuing education schools, and continuing education
29 school instructors.
30 ARTICLE 35. TRANSITION RULES
31 Section 35-5. Savings provisions.
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1 (a) This Act is intended to replace the Real Estate
2 License Act of 1983 in all respects.
3 (b) Beginning July 1, 1999, the rights, powers, and
4 duties exercised by the Office of Banks and Real Estate under
5 the Real Estate License Act of 1983 shall continue to be
6 vested in, be the obligation of, and shall be exercised by
7 the Office of Banks and Real Estate under the provisions of
8 this Act.
9 (c) This Act does not affect any act done, ratified, or
10 cancelled, or any right occurring or established, or any
11 action or proceeding had or commenced in an administrative,
12 civil, or criminal cause before July 1, 1999, by the Office
13 of Banks and Real Estate under the Real Estate License Act of
14 1983, and those actions or proceedings may be prosecuted and
15 continued by the Office of Banks and Real Estate under this
16 Act.
17 (d) This Act does not affect any license, certificate,
18 permit, or other form of licensure or authorization issued by
19 the Office of Banks and Real Estate under the Real Estate
20 License Act of 1983, and all such licenses, certificates,
21 permits, or other form of licensure or authorization shall
22 continue to be valid under the terms and conditions of this
23 Act.
24 (e) The rules adopted by the Office of Banks and Real
25 Estate relating to the Real Estate License Act of 1983,
26 unless inconsistent with the provisions of this Act, are not
27 affected by this Act, and on July 1, 1999 those rules become
28 the rules under this Act. The Office of Banks and Real
29 Estate shall, as soon as practicable, adopt new or amended
30 rules consistent with the provisions of this Act.
31 (f) This Act does not affect any discipline, suspension,
32 or termination taken under the Real Estate License Act of
33 1983 and that discipline, suspension, or termination shall be
34 continued under this Act.
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1 (g) This Act does not affect any appointments, term
2 limitations, years served, or other matters relating to
3 individuals serving on any board or council under the Real
4 Estate License Act of 1983, and these appointments, term
5 limitations, years served, and other matters shall be
6 continued under this Act.
7 Section 35-10. Money in Funds. Transfer of moneys and
8 appropriations moneys held in or appropriations to the Real
9 Estate License Administration Fund, Real Estate Recovery
10 Fund, or Real Estate Research and Education Fund for the
11 purpose of administering and enforcing the Real Estate
12 License Act of 1983 shall be transferred to and held in those
13 same funds for the purpose of administering and enforcing the
14 provisions of this Act.
15 ARTICLE 905. AMENDATORY PROVISIONS
16 Section 905-5. The Regulatory Agency Sunset Act is
17 amended by changing Section 4.10 and adding Section 4.20 as
18 follows:
19 (5 ILCS 80/4.10) (from Ch. 127, par. 1904.10)
20 Sec. 4.10. The following Acts are repealed December 31,
21 1999:
22 The Fire Equipment Distributor and Employee Regulation
23 Act.
24 The Professional Engineering Practice Act of 1989.
25 The Structural Engineering Licensing Act of 1989.
26 The Illinois Architecture Practice Act of 1989.
27 The Illinois Landscape Architecture Act of 1989.
28 The Illinois Professional Land Surveyor Act of 1989.
29 The Land Sales Registration Act of 1989.
30 The Real Estate License Act of 1983.
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1 (Source: P.A. 86-667; 86-702; 86-711; 86-925; 86-932; 86-987;
2 86-1007; 86-1028.)
3 (5 ILCS 80/4.20 new)
4 Sec. 4.20. Act repealed on January 1, 2010. The
5 following Act is repealed on January 1, 2010:
6 The Real Estate License Act of 1999.
7 Section 905-10. The Civil Administrative Code of
8 Illinois is amended by changing Section 60 as follows:
9 (20 ILCS 2105/60) (from Ch. 127, par. 60)
10 Sec. 60. Powers and duties. The Department of
11 Professional Regulation shall have, subject to the provisions
12 of this Act, the following powers and duties:
13 1. To authorize examinations in English to ascertain the
14 qualifications and fitness of applicants to exercise the
15 profession, trade, or occupation for which the examination is
16 held.
17 2. To prescribe rules and regulations for a fair and
18 wholly impartial method of examination of candidates to
19 exercise the respective professions, trades, or occupations.
20 3. To pass upon the qualifications of applicants for
21 licenses, certificates, and authorities, whether by
22 examination, by reciprocity, or by endorsement.
23 4. To prescribe rules and regulations defining, for the
24 respective professions, trades, and occupations, what shall
25 constitute a school, college, or university, or department of
26 a university, or other institutions, reputable and in good
27 standing and to determine the reputability and good standing
28 of a school, college, or university, or department of a
29 university, or other institution, reputable and in good
30 standing by reference to a compliance with such rules and
31 regulations: provided, that no school, college, or
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1 university, or department of a university or other
2 institution that refuses admittance to applicants solely on
3 account of race, color, creed, sex, or national origin shall
4 be considered reputable and in good standing.
5 5. To conduct hearings on proceedings to revoke,
6 suspend, refuse to renew, place on probationary status, or
7 take other disciplinary action as may be authorized in any
8 licensing Act administered by the Department with regard to
9 licenses, certificates, or authorities of persons exercising
10 the respective professions, trades, or occupations, and to
11 revoke, suspend, refuse to renew, place on probationary
12 status, or take other disciplinary action as may be
13 authorized in any licensing Act administered by the
14 Department with regard to such licenses, certificates, or
15 authorities. The Department shall issue a monthly
16 disciplinary report. The Department shall deny any license
17 or renewal authorized by this Act to any person who has
18 defaulted on an educational loan or scholarship provided by
19 or guaranteed by the Illinois Student Assistance Commission
20 or any governmental agency of this State; however, the
21 Department may issue a license or renewal if the
22 aforementioned persons have established a satisfactory
23 repayment record as determined by the Illinois Student
24 Assistance Commission or other appropriate governmental
25 agency of this State. Additionally, beginning June 1, 1996,
26 any license issued by the Department may be suspended or
27 revoked if the Department, after the opportunity for a
28 hearing under the appropriate licensing Act, finds that the
29 licensee has failed to make satisfactory repayment to the
30 Illinois Student Assistance Commission for a delinquent or
31 defaulted loan. For the purposes of this Section,
32 "satisfactory repayment record" shall be defined by rule. The
33 Department shall refuse to issue or renew a license to, or
34 shall suspend or revoke a license of, any person who, after
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1 receiving notice, fails to comply with a subpoena or warrant
2 relating to a paternity or child support proceeding.
3 However, the Department may issue a license or renewal upon
4 compliance with the subpoena or warrant.
5 The Department, without further process or hearings,
6 shall revoke, suspend, or deny any license or renewal
7 authorized by this Act to a person who is certified by the
8 Illinois Department of Public Aid as being more than 30 days
9 delinquent in complying with a child support order; the
10 Department may, however, issue a license or renewal if the
11 person has established a satisfactory repayment record as
12 determined by the Illinois Department of Public Aid. The
13 Department may implement this paragraph as added by Public
14 Act 89-6 through the use of emergency rules in accordance
15 with Section 5-45 of the Illinois Administrative Procedure
16 Act. For purposes of the Illinois Administrative Procedure
17 Act, the adoption of rules to implement this paragraph shall
18 be considered an emergency and necessary for the public
19 interest, safety, and welfare.
20 6. To transfer jurisdiction of any realty under the
21 control of the Department to any other Department of the
22 State Government, or to acquire or accept Federal lands, when
23 such transfer, acquisition or acceptance is advantageous to
24 the State and is approved in writing by the Governor.
25 7. To formulate rules and regulations as may be
26 necessary for the enforcement of any act administered by the
27 Department.
28 8. To exchange with the Illinois Department of Public
29 Aid information that may be necessary for the enforcement of
30 child support orders entered pursuant to the Illinois Public
31 Aid Code, the Illinois Marriage and Dissolution of Marriage
32 Act, the Non-Support of Spouse and Children Act, the Revised
33 Uniform Reciprocal Enforcement of Support Act, the Uniform
34 Interstate Family Support Act, or the Illinois Parentage Act
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1 of 1984. Notwithstanding any provisions in this Code to the
2 contrary, the Department of Professional Regulation shall not
3 be liable under any federal or State law to any person for
4 any disclosure of information to the Illinois Department of
5 Public Aid under this paragraph 8 or for any other action
6 taken in good faith to comply with the requirements of this
7 paragraph 8.
8 9. To perform such other duties as may be prescribed by
9 law.
10 The Department may, when a fee is payable to the
11 Department for a wall certificate of registration provided by
12 the Department of Central Management Services, require that
13 portion of the payment for printing and distribution costs be
14 made directly or through the Department, to the Department of
15 Central Management Services for deposit in the Paper and
16 Printing Revolving Fund, the remainder shall be deposited in
17 the General Revenue Fund.
18 For the purpose of securing and preparing evidence, and
19 for the purchase of controlled substances, professional
20 services, and equipment necessary for enforcement activities,
21 recoupment of investigative costs and other activities
22 directed at suppressing the misuse and abuse of controlled
23 substances, including those activities set forth in Sections
24 504 and 508 of the Illinois Controlled Substances Act, the
25 Director and agents appointed and authorized by the Director
26 may expend such sums from the Professional Regulation
27 Evidence Fund as the Director deems necessary from the
28 amounts appropriated for that purpose and such sums may be
29 advanced to the agent when the Director deems such procedure
30 to be in the public interest. Sums for the purchase of
31 controlled substances, professional services, and equipment
32 necessary for enforcement activities and other activities as
33 set forth in this Section shall be advanced to the agent who
34 is to make such purchase from the Professional Regulation
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1 Evidence Fund on vouchers signed by the Director. The
2 Director and such agents are authorized to maintain one or
3 more commercial checking accounts with any State banking
4 corporation or corporations organized under or subject to the
5 Illinois Banking Act for the deposit and withdrawal of moneys
6 to be used for the purposes set forth in this Section;
7 provided, that no check may be written nor any withdrawal
8 made from any such account except upon the written signatures
9 of 2 persons designated by the Director to write such checks
10 and make such withdrawals. Vouchers for such expenditures
11 must be signed by the Director and all such expenditures
12 shall be audited by the Director and the audit shall be
13 submitted to the Department of Central Management Services
14 for approval.
15 Whenever the Department is authorized or required by law
16 to consider some aspect of criminal history record
17 information for the purpose of carrying out its statutory
18 powers and responsibilities, then, upon request and payment
19 of fees in conformance with the requirements of subsection 22
20 of Section 55a of the Civil Administrative Code of Illinois,
21 the Department of State Police is authorized to furnish,
22 pursuant to positive identification, such information
23 contained in State files as is necessary to fulfill the
24 request.
25 The provisions of this Section do not apply to private
26 business and vocational schools as defined by Section 1 of
27 the Private Business and Vocational Schools Act.
28 Beginning July 1, 1995, this Section does not apply to
29 those professions, trades, and occupations licensed under the
30 Real Estate License Act of 1999 1983 nor does it apply to any
31 permits, certificates, or other authorizations to do business
32 provided for in the Land Sales Registration Act of 1989 or
33 the Illinois Real Estate Time-Share Act.
34 (Source: P.A. 89-6, eff. 3-6-95; 89-23, eff. 7-1-95; 89-237,
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1 eff. 8-4-95; 89-411, eff. 6-1-96; 89-626, eff. 8-9-96; 90-18,
2 eff. 7-1-97.)
3 Section 905-15. The Residential Mortgage License Act of
4 1987 is amended by changing Section 1-4 as follows:
5 (205 ILCS 635/1-4) (from Ch. 17, par. 2321-4)
6 Sec. 1-4. Definitions.
7 (a) "Residential real property" or "residential real
8 estate" shall mean real property located in this State
9 improved by a one-to-four family dwelling used or occupied,
10 wholly or partly, as the home or residence of one or more
11 persons and may refer, subject to regulations of the
12 Commissioner, to unimproved real property upon which those
13 kinds dwellings are to be constructed.
14 (b) "Making a residential mortgage loan" or "funding a
15 residential mortgage loan" shall mean for compensation or
16 gain, either directly or indirectly, advancing funds or
17 making a commitment to advance funds to a loan applicant for
18 a residential mortgage loan.
19 (c) "Soliciting, processing, placing, or negotiating a
20 residential mortgage loan" shall mean for compensation or
21 gain, either directly or indirectly, accepting or offering to
22 accept an application for a residential mortgage loan,
23 assisting or offering to assist in the processing of an
24 application for a residential mortgage loan on behalf of a
25 borrower, or negotiating or offering to negotiate the terms
26 or conditions of a residential mortgage loan with a lender on
27 behalf of a borrower including, but not limited to, the
28 submission of credit packages for the approval of lenders,
29 the preparation of residential mortgage loan closing
30 documents, including a closing in the name of a broker.
31 (d) "Exempt entity" shall mean the following:
32 (1) (i) Any banking organization or foreign banking
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1 corporation licensed by the Illinois Commissioner of
2 Banks and Real Estate or the United States Comptroller of
3 the Currency to transact business in this State; (ii) any
4 national bank, federally chartered savings and loan
5 association, federal savings bank, federal credit union;
6 (iii) any pension trust, bank trust, or bank trust
7 company; (iv) any savings and loan association, savings
8 bank, or credit union organized under the laws of this or
9 any other state; (v) any Illinois Consumer Installment
10 Loan Act licensee; (vi) any insurance company authorized
11 to transact business in this State; (vii) any entity
12 engaged solely in commercial mortgage lending; (viii) any
13 service corporation of a savings and loan association or
14 savings bank organized under the laws of this State or
15 the service corporation of a federally chartered savings
16 and loan association or savings bank having its principal
17 place of business in this State, other than a service
18 corporation licensed or entitled to reciprocity under the
19 Real Estate License Act of 1999 1983; or (ix) any first
20 tier subsidiary of a bank, the charter of which is issued
21 under the Illinois Banking Act by the Illinois
22 Commissioner of Banks and Real Estate, or the first tier
23 subsidiary of a bank chartered by the United States
24 Comptroller of the Currency and that has its principal
25 place of business in this State, provided that the first
26 tier subsidiary is regularly examined by the Illinois
27 Commissioner of Banks and Real Estate or the Comptroller
28 of the Currency, or a consumer compliance examination is
29 regularly conducted by the Federal Reserve Board.
30 (2) Any person or entity that either (i) has a
31 physical presence in Illinois or (ii) does not originate
32 mortgage loans in the ordinary course of business making
33 or acquiring residential mortgage loans with his or her
34 or its own funds for his or her or its own investment
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1 without intent to make, acquire, or resell more than 10
2 residential mortgage loans in any one calendar year.
3 (3) Any person employed by a licensee to assist in
4 the performance of the activities regulated by this Act
5 who is compensated in any manner by only one licensee.
6 (4) Any person licensed pursuant to the Real Estate
7 License Act of 1999 1983, who engages only in the taking
8 of applications and credit and appraisal information to
9 forward to a licensee or an exempt entity under this Act
10 and who is compensated by either a licensee or an exempt
11 entity under this Act, but is not compensated by either
12 the buyer (applicant) or the seller.
13 (5) Any individual, corporation, partnership, or
14 other entity that originates, services, or brokers
15 residential mortgage loans, as these activities are
16 defined in this Act, and who or which receives no
17 compensation for those activities, subject to the
18 Commissioner's regulations with regard to the nature and
19 amount of compensation.
20 (6) A person who prepares supporting documentation
21 for a residential mortgage loan application taken by a
22 licensee and performs ministerial functions pursuant to
23 specific instructions of the licensee who neither
24 requires nor permits the preparer to exercise his or her
25 discretion or judgment; provided that this activity is
26 engaged in pursuant to a binding, written agreement
27 between the licensee and the preparer that:
28 (A) holds the licensee fully accountable for
29 the preparer's action; and
30 (B) otherwise meets the requirements of this
31 Section and this Act, does not undermine the
32 purposes of this Act, and is approved by the
33 Commissioner.
34 (e) "Licensee" or "residential mortgage licensee" shall
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1 mean a person, partnership, association, corporation, or any
2 other entity who or which is licensed pursuant to this Act to
3 engage in the activities regulated by this Act.
4 (f) "Mortgage loan" "residential mortgage loan" or "home
5 mortgage loan" shall mean a loan to or for the benefit of any
6 natural person made primarily for personal, family, or
7 household use, primarily secured by either a mortgage on
8 residential real property or certificates of stock or other
9 evidence of ownership interests in and proprietary leases
10 from, corporations, partnerships, or limited liability
11 companies formed for the purpose of cooperative ownership of
12 residential real property, all located in Illinois.
13 (g) "Lender" shall mean any person, partnership,
14 association, corporation, or any other entity who either
15 lends or invests money in residential mortgage loans.
16 (h) "Ultimate equitable owner" shall mean a person who,
17 directly or indirectly, owns or controls an ownership
18 interest in a corporation, foreign corporation, alien
19 business organization, trust, or any other form of business
20 organization regardless of whether the person owns or
21 controls the ownership interest through one or more persons
22 or one or more proxies, powers of attorney, nominees,
23 corporations, associations, partnerships, trusts, joint stock
24 companies, or other entities or devices, or any combination
25 thereof.
26 (i) "Residential mortgage financing transaction" shall
27 mean the negotiation, acquisition, sale, or arrangement for
28 or the offer to negotiate, acquire, sell, or arrange for, a
29 residential mortgage loan or residential mortgage loan
30 commitment.
31 (j) "Personal residence address" shall mean a street
32 address and shall not include a post office box number.
33 (k) "Residential mortgage loan commitment" shall mean a
34 contract for residential mortgage loan financing.
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1 (l) "Party to a residential mortgage financing
2 transaction" shall mean a borrower, lender, or loan broker in
3 a residential mortgage financing transaction.
4 (m) "Payments" shall mean payment of all or any of the
5 following: principal, interest and escrow reserves for taxes,
6 insurance and other related reserves, and reimbursement for
7 lender advances.
8 (n) "Commissioner" shall mean the Commissioner of Banks
9 and Real Estate or a person authorized by the Commissioner,
10 the Office of Banks and Real Estate Act, or this Act to act
11 in the Commissioner's stead .
12 (o) "Loan brokering", "brokering", or "brokerage
13 service" shall mean the act of helping to obtain from another
14 entity, for a borrower, a loan secured by residential real
15 estate situated in Illinois or assisting a borrower in
16 obtaining a loan secured by residential real estate situated
17 in Illinois in return for consideration to be paid by either
18 the borrower or the lender including, but not limited to,
19 contracting for the delivery of residential mortgage loans to
20 a third party lender and soliciting, processing, placing, or
21 negotiating residential mortgage loans.
22 (p) "Loan broker" or "broker" shall mean a person,
23 partnership, association, corporation, or limited liability
24 company, other than those persons, partnerships,
25 associations, corporations, or limited liability companies
26 exempted from licensing pursuant to Section 1-4, subsection
27 (d), of this Act, who performs the activities described in
28 subsections (c) and (o) of this Section.
29 (q) "Servicing" shall mean the collection or remittance
30 for or the right or obligation to collect or remit for any
31 lender, noteowner, noteholder, or for a licensee's own
32 account, of payments, interests, principal, and trust items
33 such as hazard insurance and taxes on a residential mortgage
34 loan in accordance with the terms of the residential mortgage
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1 loan; and includes loan payment follow-up, delinquency loan
2 follow-up, loan analysis and any notifications to the
3 borrower that are necessary to enable the borrower to keep
4 the loan current and in good standing.
5 (r) "Full service office" shall mean office and staff in
6 Illinois reasonably adequate to handle efficiently
7 communications, questions, and other matters relating to any
8 application for, or an existing home mortgage secured by
9 residential real estate situated in Illinois with respect to
10 which the licensee is brokering, funding originating,
11 purchasing, or servicing. The management and operation of
12 each full service office must include observance of good
13 business practices such as adequate, organized, and accurate
14 books and records; ample phone lines, hours of business,
15 staff training and supervision, and provision for a mechanism
16 to resolve consumer inquiries, complaints, and problems. The
17 Commissioner shall issue regulations with regard to these
18 requirements and shall include an evaluation of compliance
19 with this Section in his or her periodic examination of each
20 licensee.
21 (s) "Purchasing" shall mean the purchase of conventional
22 or government-insured mortgage loans secured by residential
23 real estate situated in Illinois from either the lender or
24 from the secondary market.
25 (t) "Borrower" shall mean the person or persons who seek
26 the services of a loan broker, originator, or lender.
27 (u) "Originating" shall mean the issuing of commitments
28 for and funding of residential mortgage loans.
29 (v) "Loan brokerage agreement" shall mean a written
30 agreement in which a broker or loan broker agrees to do
31 either of the following:
32 (1) obtain a residential mortgage loan for the
33 borrower or assist the borrower in obtaining a
34 residential mortgage loan; or
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1 (2) consider making a residential mortgage loan to
2 the borrower.
3 (w) "Advertisement" shall mean the attempt by
4 publication, dissemination, or circulation to induce,
5 directly or indirectly, any person to enter into a
6 residential mortgage loan agreement or residential mortgage
7 loan brokerage agreement relative to a mortgage secured by
8 residential real estate situated in Illinois.
9 (x) "Residential Mortgage Board" shall mean the
10 Residential Mortgage Board created in Section 1-5 of this
11 Act.
12 (y) "Government-insured mortgage loan" shall mean any
13 mortgage loan made on the security of residential real estate
14 insured by the Department of Housing and Urban Development or
15 Farmers Home Loan Administration, or guaranteed by the
16 Veterans Administration.
17 (z) "Annual audit" shall mean a certified audit of the
18 licensee's books and records and systems of internal control
19 performed by a certified public accountant in accordance with
20 generally accepted accounting principles and generally
21 accepted auditing standards.
22 (aa) "Financial institution" shall mean a savings and
23 loan association, savings bank, credit union, or a bank
24 organized under the laws of Illinois or a savings and loan
25 association, savings bank, credit union or a bank organized
26 under the laws of the United States and headquartered in
27 Illinois.
28 (bb) "Escrow agent" shall mean a third party, individual
29 or entity charged with the fiduciary obligation for holding
30 escrow funds on a residential mortgage loan pending final
31 payout of those funds in accordance with the terms of the
32 residential mortgage loan.
33 (cc) "Net worth" shall have the meaning ascribed thereto
34 in Section 3-5 of this Act.
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1 (dd) "Affiliate" shall mean:
2 (1) any entity that directly controls or is
3 controlled by the licensee and any other company that is
4 directly affecting activities regulated by this Act that
5 is controlled by the company that controls the licensee;
6 (2) any entity:
7 (A) that is controlled, directly or
8 indirectly, by a trust or otherwise, by or for the
9 benefit of shareholders who beneficially or
10 otherwise control, directly or indirectly, by trust
11 or otherwise, the licensee or any company that
12 controls the licensee; or
13 (B) a majority of the directors or trustees of
14 which constitute a majority of the persons holding
15 any such office with the licensee or any company
16 that controls the licensee;
17 (3) any company, including a real estate investment
18 trust, that is sponsored and advised on a contractual
19 basis by the licensee or any subsidiary or affiliate of
20 the licensee.
21 The Commissioner may define by rule and regulation any
22 terms used in this Act for the efficient and clear
23 administration of this Act.
24 (ee) "First tier subsidiary" shall be defined by
25 regulation incorporating the comparable definitions used by
26 the Office of the Comptroller of the Currency and the
27 Illinois Commissioner of Banks and Real Estate.
28 (ff) "Gross delinquency rate" means the quotient
29 determined by dividing (1) the sum of (i) the number of
30 government-insured residential mortgage loans funded or
31 purchased by a licensee in the preceding calendar year that
32 are delinquent and (ii) the number of conventional
33 residential mortgage loans funded or purchased by the
34 licensee in the preceding calendar year that are delinquent
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1 by (2) the sum of (i) the number of government-insured
2 residential mortgage loans funded or purchased by the
3 licensee in the preceding calendar year and (ii) the number
4 of conventional residential mortgage loans funded or
5 purchased by the licensee in the preceding calendar year.
6 (gg) "Delinquency rate factor" means the factor set by
7 rule of the Commissioner that is multiplied by the average
8 gross delinquency rate of licensees, determined annually for
9 the immediately preceding calendar year, for the purpose of
10 determining which licensees shall be examined by the
11 Commissioner pursuant to subsection (b) of Section 4-8 of
12 this Act.
13 (Source: P.A. 89-355, eff. 8-17-95; 89-508, eff. 7-3-96;
14 90-772, eff. 1-1-99.)
15 Section 905-20. The Title Insurance Act is amended by
16 changing Section 3 as follows:
17 (215 ILCS 155/3) (from Ch. 73, par. 1403)
18 Sec. 3. As used in this Act, the words and phrases
19 following shall have the following meanings unless the
20 context requires otherwise:
21 (1) "Business of guaranteeing or insuring titles to real
22 estate" means the making as insurer or guarantor, or
23 proposing to make as insurer or guarantor, of any contract or
24 policy of title insurance; the transacting or proposing to
25 transact, any phase of title insurance, including, as an
26 insurer or guarantor, examination of title, solicitation,
27 negotiation preliminary to the execution of a contract of
28 title insurance, and execution of a contract of title
29 insurance, insuring and transacting matters subsequent to the
30 execution of the contract and arising out of it, other than
31 reinsurance; the performance of any service in conjunction
32 with the issuance of any contract or policy of title
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1 insurance, including but not limited to the handling of any
2 escrow, settlement or closing, if conducted by a title
3 insurance company or title insurance agent; or the doing, or
4 proposing to do, any business in substance equivalent to any
5 of the foregoing in a manner designed to evade the provisions
6 of this Act.
7 (2) "Title insurance company" means any domestic company
8 organized under the laws of this State for the purpose of
9 conducting the business of guaranteeing or insuring titles to
10 real estate and any title insurance company organized under
11 the laws of another State, the District of Columbia or
12 foreign government and authorized to transact the business of
13 guaranteeing or insuring titles to real estate in this State.
14 (3) "Title insurance agent" means a person, firm,
15 partnership, association, corporation or other legal entity
16 registered by a title insurance company and authorized by
17 such company to determine insurability of title in accordance
18 with generally acceptable underwriting rules and standards in
19 reliance on either the public records or a search package
20 prepared from a title plant, or both, and authorized in
21 addition to do any of the following: act as an escrow agent,
22 solicit title insurance, collect premiums, issue title
23 reports, binders or commitments to insure and policies in its
24 behalf, provided, however, the term "title insurance agent"
25 shall not include officers and salaried employees of any
26 title insurance company.
27 (4) "Producer of title business" is any person, firm,
28 partnership, association, corporation or other legal entity
29 engaged in this State in the trade, business, occupation or
30 profession of (i) buying or selling interests in real
31 property, (ii) making loans secured by interests in real
32 property, or (iii) acting as broker, agent, attorney, or
33 representative of natural persons or other legal entities
34 that buy or sell interests in real property or that lend
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1 money with such interests as security.
2 (5) "Associate" is any firm, association, partnership,
3 corporation or other legal entity organized for profit in
4 which a producer of title business is a director, officer, or
5 partner thereof, or owner of a financial interest, as defined
6 herein, in such entity; any legal entity that controls, is
7 controlled by, or is under common control with a producer of
8 title business; and any natural person or legal entity with
9 whom a producer of title business has any agreement,
10 arrangement, or understanding or pursues any course of
11 conduct the purpose of which is to evade the provisions of
12 this Act.
13 (6) "Financial interest" is any ownership interest,
14 legal or beneficial, except ownership of publicly traded
15 stock.
16 (7) "Refer" means to place or cause to be placed, or to
17 exercise any power or influence over the placing of title
18 business, whether or not the consent or approval of any other
19 person is sought or obtained with respect to the referral.
20 (8) "Escrow Agent" means any title insurance company or
21 any title insurance agent acting on behalf of a title
22 insurance company which receives deposits, in trust, of funds
23 or documents, or both, for the purpose of effecting the sale,
24 transfer, encumbrance or lease of real property to be held by
25 such escrow agent until title to the real property that is
26 the subject of the escrow is in a prescribed condition.
27 (9) "Independent Escrowee" means any firm, person,
28 partnership, association, corporation or other legal entity,
29 other than a title insurance company or a title insurance
30 agent, which receives deposits, in trust, of funds or
31 documents, or both, for the purpose of effecting the sale,
32 transfer, encumbrance or lease of real property to be held by
33 such escrowee until title to the real property that is the
34 subject of the escrow is in a prescribed condition. Federal
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1 and State chartered banks, savings and loan associations,
2 credit unions, mortgage bankers, banks or trust companies
3 authorized to do business under the Illinois Corporate
4 Fiduciary Act, licensees under the Consumer Installment Loan
5 Act, real estate brokers licensed pursuant to the Real Estate
6 License Act of 1999 1983, as such Acts are now or hereafter
7 amended, and licensed attorneys when engaged in the
8 attorney-client relationship are exempt from the escrow
9 provisions of this Act.
10 (10) "Single risk" means the insured amount of any title
11 insurance policy, except that where 2 or more title insurance
12 policies are issued simultaneously covering different estates
13 in the same real property, "single risk" means the sum of the
14 insured amounts of all such title insurance policies. Any
15 title insurance policy insuring a mortgage interest, a claim
16 payment under which reduces the insured amount of a fee or
17 leasehold title insurance policy, shall be excluded in
18 computing the amount of a single risk to the extent that the
19 insured amount of the mortgage title insurance policy does
20 not exceed the insured amount of the fee or leasehold title
21 insurance policy.
22 (11) "Department" means the Department of Financial
23 Institutions.
24 (12) "Director" means the Director of Financial
25 Institutions.
26 (Source: P.A. 86-239.)
27 Section 905-25. The Illinois Highway Code is amended by
28 changing Section 5-907 as follows:
29 (605 ILCS 5/5-907) (from Ch. 121, par. 5-907)
30 Sec. 5-907. Advisory Committee. A road improvement impact
31 fee advisory committee shall be created by the unit of local
32 government intending to impose impact fees. The Advisory
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1 Committee shall consist of not less than 10 members and not
2 more than 20 members. Not less than 40% of the members of
3 the committee shall be representatives of the real estate,
4 development, and building industries and the labor
5 communities and may not be employees or officials of the unit
6 of local government.
7 The members of the Advisory Committee shall be selected
8 as follows:
9 (1) The representatives of real estate shall be
10 licensed under the Real Estate License Act of 1999 1983
11 and shall be designated by the President of the Illinois
12 Association of Realtors from a local Board from the
13 service area or areas of the unit of local government.
14 (2) The representatives of the development industry
15 shall be designated by the Regional Developers
16 Association.
17 (3) The representatives of the building industry
18 shall be designated representatives of the Regional Home
19 Builders representing the unit of local government's
20 geographic area as appointed from time to time by that
21 Association's president.
22 (4) The labor representatives shall be chosen by
23 either the Central Labor Council or the Building and
24 Construction Trades Council having jurisdiction within
25 the unit of local government.
26 If the unit of local government is a county, at least 30%
27 of the members serving on the commission must be
28 representatives of the municipalities within the county. The
29 municipal representatives shall be selected by a convention
30 of mayors in the county, who shall elect from their
31 membership municipal representatives to serve on the Advisory
32 Committee. The members representing the county shall be
33 appointed by the chief executive officer of the county.
34 If the unit of local government is a municipality, the
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1 non-public representatives shall be appointed by the chief
2 executive officer of the municipality.
3 If the unit of local government has a planning or zoning
4 commission, the unit of local government may elect to use its
5 planning or zoning commission to serve as the Advisory
6 Committee, provided that not less than 40% of the committee
7 members include representatives of the real estate,
8 development, and building industries and the labor
9 communities who are not employees or officials of the unit of
10 local government. A unit of local government may appoint
11 additional members to serve on the planning or zoning
12 commission as ad hoc voting members whenever the planning or
13 zoning commission functions as the Advisory Committee;
14 provided that no less than 40% of the members include
15 representatives of the real estate, development, and building
16 industries and the labor communities.
17 (Source: P.A. 86-97.)
18 Section 905-30. The Illinois Real Estate Time-Share Act
19 is amended by changing Sections 19, 33, and 34 as follows:
20 (765 ILCS 100/19) (from Ch. 30, par. 719)
21 Sec. 19. (a) Any person acting as a sales agent of a
22 time-share estate of real property without having first
23 complied with the Real Estate License Act of 1999 1983 shall
24 be guilty of a Class A misdemeanor.
25 Upon conviction of a second offense the violator shall be
26 guilty of a Class A misdemeanor.
27 Upon conviction of a third or subsequent offense the
28 violator shall be guilty of a Class 4 felony and shall be
29 fined not less than $15,000 nor more than $50,000.
30 (b) In addition to any other remedies, the Commissioner,
31 through the Attorney General, is authorized to file a
32 complaint and apply to any circuit court wherein such alleged
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1 acts are occurring, and such circuit court may upon hearing
2 and for cause shown, grant a temporary restraining order or a
3 preliminary or permanent injunction, without bond,
4 restraining any person from violating this Act whether or not
5 there exists other judicial remedies.
6 (c) The Commissioner by and through the Attorney General
7 may file a complaint for violation of this Act.
8 (d) The penalties and remedies provided by this Act
9 shall not be exclusive, but shall be in addition to all other
10 penalties or remedies provided by law.
11 (Source: P.A. 89-508, eff. 7-3-96.)
12 (765 ILCS 100/33) (from Ch. 30, par. 733)
13 Sec. 33. If a time-share program involves the offering,
14 sale, exchange or lease of real property, then any sales
15 agent, involved in the transaction must comply with the Real
16 Estate License Act of 1999 1983.
17 (Source: P.A. 84-821.)
18 (765 ILCS 100/34) (from Ch. 30, par. 734)
19 Sec. 34. All fees in the Real Estate Time-Share
20 Registration Fund on the effective date of this amendatory
21 Act of 1986 shall be transferred by the State Treasurer to
22 the Real Estate License Administration Fund, established in
23 Section 17 of the Real Estate License Act of 1999 1983. All
24 fees received under this Act on or after that date shall be
25 deposited into the Real Estate License Administration Fund.
26 (Source: P.A. 89-508, eff. 7-3-96.)
27 Section 905-35. The Commercial Real Estate Broker Lien
28 Act is amended by changing Section 5 as follows:
29 (770 ILCS 15/5) (from Ch. 82, par. 655)
30 Sec. 5. Definitions. As used in this Act:
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1 "Commercial real estate" means any real estate located in
2 Illinois other than (i) real estate containing one to 6
3 residential units, (ii) real estate on which no buildings or
4 structures are located, or (iii) real estate classified as
5 farmland for assessment purposes under the Property Tax Code.
6 Commercial real estate shall not include single family
7 residential units such as condominiums, townhouses, or homes
8 in a subdivision when sold, leased, or otherwise conveyed on
9 a unit by unit basis even though these units may be part of a
10 larger building or parcel of real estate containing more than
11 6 residential units.
12 "Real estate", "broker", and "employee" are defined as in
13 the Real Estate License Act of 1999 1983.
14 "Interest in commercial real estate" shall include,
15 without limitation, any interest in a land trust as defined
16 in Section 15-1205 of the Code of Civil Procedure.
17 (Source: P.A. 87-779; 88-354; 88-670, eff. 12-2-94.)
18 Section 905-40. The Illinois Business Brokers Act of
19 1995 is amended by changing Section 10-80 as follows:
20 (815 ILCS 307/10-80)
21 Sec. 10-80. Persons exempt from registration and other
22 duties under law; burden of proof thereof.
23 (a) The following persons are exempt from the
24 requirements of this Act:
25 (1) Any attorney who is licensed to practice in
26 this State, while engaged in the practice of law and
27 whose service in relation to the business broker
28 transaction is incidental to the attorney's practice.
29 (2) Any person licensed as a real estate broker or
30 salesperson under the Illinois Real Estate License Act of
31 1999 1983 who is primarily engaged in business activities
32 for which a license is required under that Act and who,
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1 on an incidental basis, acts as a business broker.
2 (3) Any dealer, salesperson, or investment adviser
3 registered pursuant to the Illinois Securities Law of
4 1953 or any investment adviser representative, or any
5 person who is regularly engaged in the business of
6 offering or selling securities in a transaction exempted
7 under subsection C, H, M, R, Q, or S of Section 4 of the
8 Illinois Securities Law of 1953 or subsection G of
9 Section 4 of the Illinois Securities Law of 1953 provided
10 that such person is registered pursuant to federal
11 securities law.
12 (4) An associated person described in subdivision
13 (h)(2) of Section 15 of the Federal 1934 Act.
14 (5) An investment adviser registered pursuant to
15 Section 203 of the Federal 1940 Investment Advisors Act.
16 (6) A person described in subdivision (a)(11) of
17 Section 202 of the Federal 1940 Investment Advisors Act.
18 (7) Any person who is selling a business owned or
19 operated (in whole or in part) by that person in a one
20 time transaction.
21 (b) This Act shall not be deemed to apply in any manner,
22 directly or indirectly, to: (i) a State bank or national
23 bank, as those terms are defined in the Illinois Banking Act,
24 or any subsidiary of a State bank or national bank; (ii) a
25 bank holding company, as that term is defined in the Illinois
26 Bank Holding Company Act of 1957, or any subsidiary of a bank
27 holding company; (iii) a foreign banking corporation, as that
28 term is defined in the Foreign Banking Office Act, or any
29 subsidiary of a foreign banking corporation; (iv) a
30 representative office, as that term is defined in the
31 Foreign Bank Representative Office Act; (v) a corporate
32 fiduciary, as that term is defined in the Corporate Fiduciary
33 Act, or any subsidiary of a corporate fiduciary; (vi) a
34 savings bank organized under the Savings Bank Act, or a
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1 federal savings bank organized under federal law, or any
2 subsidiary of a savings bank or federal savings bank; (vii) a
3 savings bank holding company organized under the Savings Bank
4 Act, or any subsidiary of a savings bank holding company;
5 (viii) an association or federal association, as those terms
6 are defined in the Illinois Savings and Loan Act of 1985, or
7 any subsidiary of an association or federal association; (ix)
8 a foreign savings and loan association or foreign savings
9 bank subject to the Illinois Savings and Loan Act of 1985, or
10 any subsidiary of a foreign savings and loan association or
11 foreign savings bank; or (x) a savings and loan association
12 holding company, as that term is defined in the Illinois
13 Savings and Loan Act of 1985, or any subsidiary of a savings
14 and loan association holding company.
15 (b-1) Persons registered under the Illinois Franchise
16 Disclosure Act of 1987 (and their employees) are exempt from
17 the requirements of this Act as to: offers and sales in
18 connection with franchising activities; or assisting any of
19 their franchisees in the offer or sale of a franchise by any
20 such franchisee for the franchisee's own account regardless
21 of whether the sale is effected by or through the registered
22 persons.
23 (b-2) Any certified public accountant licensed to
24 practice in Illinois, while engaged in the practice as a
25 certified public accountant and whose service in relation to
26 the business broker transaction is incidental to his or her
27 practice, is exempt from the requirements of this Act.
28 (b-3) Any publisher, or regular employee of such
29 publisher, of a bona fide newspaper or news magazine of
30 regular and established paid circulation who, in the routine
31 course of selling advertising, advertises businesses for sale
32 and in which no other related services are provided is exempt
33 from the requirements of this Act.
34 (c) The burden of proof of any exemption or
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1 classification provided in this Act shall be on the party
2 claiming the exemption or classification.
3 (Source: P.A. 89-209, eff. 1-1-96; 89-665, eff. 8-14-96;
4 90-70, eff. 7-8-97.)
5 Section 905-45. The Telephone Solicitations Act is
6 amended by changing Section 10 as follows:
7 (815 ILCS 413/10)
8 Sec. 10. Jurisdiction. No person shall solicit the sale
9 of goods or services in this State except in accordance with
10 this Act. The provisions of this Act shall not apply to
11 telecommunications carriers as defined in Article XIII of the
12 Public Utilities Act or to any bank, trust company, savings
13 and loan association, credit union, licensee under the
14 Consumer Installment Loan Act, licensed insurer, licensee
15 under the Real Estate License Act of 1999 1983, or any
16 affiliate, subsidiary, employee, or agent of any such
17 entities.
18 (Source: P.A. 90-541, eff. 6-1-98.)
19 ARTICLE 990. REPEALER
20 (225 ILCS 455/Act rep.)
21 Section 990-90. The Real Estate License Act of 1983 is
22 repealed.
23 ARTICLE 999. EFFECTIVE DATE
24 Section 999-99. Effective date. This Act takes effect
25 January 1, 2000.