Bill Text: IN SB0275 | 2012 | Regular Session | Enrolled
Bill Title: Real estate brokers.
Spectrum: Slight Partisan Bill (Republican 2-1)
Status: (Enrolled - Dead) 2012-03-19 - Signed by the Governor [SB0275 Detail]
Download: Indiana-2012-SB0275-Enrolled.html
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AN ACT to amend the Indiana Code concerning professions and occupations.
(1) One (1) member appointed by the executive of the eligible entity to represent the interests of low income families.
(2) One (1) member appointed by the executive of the eligible entity to represent the interests of owners of subsidized, multifamily housing communities.
(3) One (1) member appointed by the executive of the eligible entity to represent the interests of banks and other financial institutions.
(4) One (1) member appointed by the executive of the eligible entity to represent the interests of the eligible entity.
(5) One (1) member appointed by the executive of the eligible entity to represent real estate brokers.
(6) One (1) member appointed by the executive of the eligible entity to represent construction trades. The member appointed under this subdivision must be nominated to the executive by the local building trades council.
(7) Five (5) members appointed by the legislative body of the eligible entity to represent the community at large. Members appointed under this subdivision must be nominated to the legislative body after a general call for nominations from township trustees, community development corporations, neighborhood associations, community based organizations, and other social services agencies.
(b) Members of the affordable housing fund advisory committee serve for a term of four (4) years, and are eligible for reappointment. If a vacancy exists on the committee, the appointing authority that appointed the former member whose position has become vacant shall appoint an individual to fill the vacancy. A committee member may be removed at any time by the appointing authority that appointed the committee member.
(c) The affordable housing fund advisory committee shall make recommendations to the eligible entity regarding:
(1) the development of policies and procedures for the uses of the affordable housing fund; and
(2) long term sources of capital for the affordable housing fund, including:
(A) revenue from:
(i) development ordinances;
(ii) fees; or
(iii) taxes;
(B) financial market based income;
(C) revenue derived from private sources; and
(D) revenue generated from grants, gifts, donations, or income in any other form from a:
(i) government program;
(ii) foundation; or
(iii) corporation.
(b) As used in this chapter, "licensee" means a person that is issued
a license under this chapter.
(c) As used in this chapter, "loan broker" means any person who, in
return for any consideration from any source procures, attempts to
procure, or assists in procuring, a residential mortgage loan from a
third party or any other person, whether or not the person seeking the
loan actually obtains the loan. "Loan broker" does not include:
(1) any supervised financial organization (as defined in
IC 26-1-4-102.5), including a bank, savings bank, trust company,
savings association, or credit union;
(2) any other financial institution that is:
(A) regulated by any agency of the United States or any state;
and
(B) regularly actively engaged in the business of making
consumer loans that are not secured by real estate or taking
assignment of consumer sales contracts that are not secured by
real estate;
(3) any insurance company;
(4) any person arranging financing for the sale of the person's
product; or
(5) a creditor that is licensed under IC 24-4.4-2-402.
(d) As used in this chapter, "loan brokerage business" means a
person acting as a loan broker.
(e) As used in this chapter, "mortgage loan origination activities"
means performing any of the following activities for compensation or
gain in connection with a residential mortgage loan:
(1) Receiving or recording a borrower's or potential borrower's
residential mortgage loan application information in any form for
use in a credit decision by a creditor.
(2) Offering to negotiate or negotiating terms of a residential
mortgage loan.
(f) As used in this chapter, "borrower's residential mortgage loan
application information" means the address of the proposed residential
real property to be mortgaged and borrower's essential personal and
financial information necessary for an informed credit decision to be
made on the borrower's mortgage loan application.
(g) As used in this chapter, "mortgage loan originator" means an
individual engaged in mortgage loan origination activities. The term
does not include a person who:
(1) performs purely administrative or clerical tasks on behalf of
a mortgage loan originator or acts as a loan processor or
underwriter;
(2) performs only real estate brokerage activities and is licensed
in accordance with IC 25-34.1 or the applicable laws of another
state, unless the person is compensated by a creditor, a loan
broker, a mortgage loan originator, or any agent of a creditor, a
loan broker, or a mortgage loan originator; or
(3) is involved only in extensions of credit relating to time share
plans (as defined in 11 U.S.C. 101(53D)).
(h) As used in this chapter, "mortgage loan originator license"
means a license issued by the commissioner authorizing an individual
to act as a mortgage loan originator on behalf of a loan broker licensee.
(i) As used in this chapter, "person" means an individual, a
partnership, a trust, a corporation, a limited liability company, a limited
liability partnership, a sole proprietorship, a joint venture, a joint stock
company, or another group or entity, however organized.
(j) As used in this chapter, "ultimate equitable owner" means a
person who, directly or indirectly, owns or controls ten percent (10%)
or more of the equity interest in a loan broker licensed or required to be
licensed under this chapter, regardless of whether the person owns or
controls the equity interest through one (1) or more other persons or
one (1) or more proxies, powers of attorney, or variances.
(k) As used in this chapter, "principal manager" means an individual
who:
(1) has at least three (3) years of experience:
(A) as a mortgage loan originator; or
(B) in financial services;
that is acceptable to the commissioner; and
(2) is principally responsible for the supervision and management
of the employees and business affairs of a loan broker licensee.
(l) As used in this chapter, "principal manager license" means a
license issued by the commissioner authorizing an individual to act as:
(1) a principal manager; and
(2) a mortgage loan originator;
on behalf of a loan broker licensee.
(m) As used in this chapter, "bona fide third party fee", with respect
to a residential mortgage loan, includes any of the following:
(1) Fees for real estate appraisals. However, if the residential
mortgage loan is governed by Title XI of the Financial Institutions
Reform, Recovery, and Enforcement Act (12 U.S.C. 3331 through
3352), the fee for an appraisal performed in connection with the
loan is not a bona fide third party fee unless the appraisal is
performed by a person that is licensed or certified under
IC 25-34.1-3-8.
(2) Fees for title examination, abstract of title, title insurance,
property surveys, or similar purposes.
(3) Notary and credit report fees.
(4) Fees for the services provided by a loan broker in procuring
possible business for a creditor if the fees are paid by the creditor.
(n) As used in this chapter, "branch office" means any fixed physical
location from which a loan broker licensee holds itself out as engaging
in the loan brokerage business.
(o) As used in this chapter, "loan processor or underwriter" means
an individual who:
(1) is employed by a loan broker licensee and acts at the direction
of, and subject to the supervision of, the loan broker licensee or
a licensed principal manager employed by the loan broker
licensee; and
(2) performs solely clerical or support duties on behalf of the loan
broker licensee, including any of the following activities with
respect to a residential mortgage loan application received by the
loan broker licensee:
(A) The receipt, collection, distribution, and analysis of
information commonly used in the processing or underwriting
of a residential mortgage loan.
(B) Communicating with a borrower or potential borrower to
obtain the information necessary for the processing or
underwriting of a residential mortgage loan, to the extent that
the communication does not include:
(i) offering or negotiating loan rates or terms; or
(ii) counseling borrowers or potential borrowers about
residential mortgage loan rates or terms.
(p) As used in this chapter, "real estate brokerage activity" means
any activity that involves offering or providing real estate brokerage
services to the public, including any of the following:
(1) Acting as a real estate broker or salesperson for a buyer, seller,
lessor, or lessee of real property.
(2) Bringing together parties interested in the sale, lease, or
exchange of real property.
(3) Negotiating, on behalf of any party, any part of a contract
concerning the sale, lease, or exchange of real property, other than
in connection with obtaining or providing financing for the
transaction.
(4) Engaging in any activity for which the person performing the
activity is required to be licensed under IC 25-34.1 or the
applicable laws of another state.
(5) Offering to engage in any activity, or to act in any capacity
with respect to any activity, described in subdivisions (1) through
(4).
(q) As used in this chapter, "registered mortgage loan originator"
means a mortgage loan originator who:
(1) is an employee of:
(A) a depository institution;
(B) a subsidiary that is:
(i) owned and controlled by a depository institution; and
(ii) regulated by a federal financial institution regulatory
agency (as defined in 12 U.S.C. 3350(6)); or
(C) an institution regulated by the Farm Credit Administration;
and
(2) is registered with and maintains a unique identifier with the
Nationwide Mortgage Licensing System and Registry.
(r) As used in this chapter, "residential mortgage loan" means a loan
that is or will be used primarily for personal, family, or household
purposes and that is secured by a mortgage (or another equivalent
consensual security interest) on a dwelling (as defined in Section
103(w) of the federal Truth in Lending Act (15 U.S.C. 1602(w)) or on
residential real estate on which a dwelling is constructed or intended
to be constructed.
(s) As used in this chapter, "personal information" includes any of
the following:
(1) An individual's first and last names or first initial and last
name.
(2) Any of the following data elements:
(A) A Social Security number.
(B) A driver's license number.
(C) A state identification card number.
(D) A credit card number.
(E) A financial account number or debit card number in
combination with a security code, password, or access code
that would permit access to the person's account.
(3) With respect to an individual, any of the following:
(A) Address.
(B) Telephone number.
(C) Information concerning the individual's:
(i) income or other compensation;
(ii) credit history;
(iii) credit score;
(iv) assets;
(v) liabilities; or
(vi) employment history.
(t) As used in this chapter, personal information is "encrypted" if the personal information:
(1) has been transformed through the use of an algorithmic process into a form in which there is a low probability of assigning meaning without use of a confidential process or key; or
(2) is secured by another method that renders the personal information unreadable or unusable.
(u) As used in this chapter, personal information is "redacted" if the personal information has been altered or truncated so that not more than the last four (4) digits of:
(1) a Social Security number;
(2) a driver's license number;
(3) a state identification number; or
(4) an account number;
are accessible as part of the personal information.
(v) As used in this chapter, "depository institution" has the meaning set forth in the Federal Deposit Insurance Act (12 U.S.C. 1813(c)) and includes any credit union.
(w) As used in this chapter, "state licensed mortgage loan originator" means any individual who:
(1) is a mortgage loan originator;
(2) is not an employee of:
(A) a depository institution;
(B) a subsidiary that is:
(i) owned and controlled by a depository institution; and
(ii) regulated by a federal financial institution regulatory agency (as defined in 12 U.S.C. 3350(6)); or
(C) an institution regulated by the Farm Credit Administration;
(3) is licensed by a state or by the Secretary of the United States Department of Housing and Urban Development under Section 1508 of the S.A.F.E. Mortgage Licensing Act of 2008 (Title V of P.L.110-289); and
(4) is registered as a mortgage loan originator with, and maintains a unique identifier through, the Nationwide Mortgage Licensing System and Registry.
(x) As used in this chapter, "unique identifier" means a number or other identifier that:
(1) permanently identifies a mortgage loan originator; and
(2) is assigned by protocols established by the Nationwide Mortgage Licensing System and Registry and the federal financial
institution regulatory agencies to facilitate:
(A) the electronic tracking of mortgage loan originators; and
(B) the uniform identification of, and public access to, the
employment history of and the publicly adjudicated
disciplinary and enforcement actions against mortgage loan
originators.
(y) As used in this chapter, "residential real estate" means real
property:
(1) that is located in Indiana; and
(2) upon which a dwelling is constructed or intended to be
constructed.
(b) This article does not apply to the following:
(1) An individual who is acting within the scope of the individual's employment as:
(A) a code enforcement official for the state or a political subdivision of the state; or
(B) a representative of a state or local housing agency or authority acting under the authority of the United States Department of Housing and Urban Development.
(2) An individual who is:
(A) either:
(i) registered as an architect under IC 25-4;
(ii) registered as a professional engineer under IC 25-31; or
(iii) licensed as a plumbing contractor or journeyman plumber under IC 25-28.5; and
(B) acting within the scope of the individual's registration or license.
(3) An individual who is licensed under IC 25-34.1 as a real estate broker
(4) An individual who is licensed or certified under IC 25-34.1 as a real estate appraiser and is acting within the scope of the individual's license or certificate.
(5) An individual who holds a certificate of authority under IC 27-1-27-2 as a public adjuster and is acting within the scope of the individual's certificate.
(6) An individual who holds a permit, certificate, or license to:
(A) use and apply pesticides; or
(B) make diagnostic inspections and reports for wood destroying pests;
under IC 15-16-5 and is acting within the scope of the individual's certificate or license.
(7) An individual who holds a license from a political subdivision as a tradesperson or home builder and is acting within the scope of the individual's license.
(1) Four (4) members, each of whom:
(A) is licensed in Indiana as a home inspector; and
(B) has been actively engaged in performing home inspections in Indiana for at least five (5) years immediately before the member's appointment to the board.
(2) One (1) member who:
(A) is a home builder; and
(B) has been actively engaged in home building in Indiana for at least five (5) years immediately before the member's appointment to the board.
(3) One (1) member who:
(A) is a
(B) has been actively engaged in selling, trading, exchanging, optioning, leasing, renting, managing, listing, or appraising residential real estate in Indiana for at least five (5) years immediately before the member's appointment to the board.
(4) One (1) member who represents the public at large and is not associated with the home inspection, home building, or real estate business other than as a consumer.
(b) The members of the board must be residents of Indiana.
(1) "Person" means an individual, a partnership, a corporation, or a limited liability company.
(2) "Commission" means the Indiana real estate commission.
(3) "Real estate" means any right, title, or interest in real property.
(4) "Broker" means a person who:
(A) for consideration, sells, buys, trades, exchanges, options, leases, rents, manages, lists, or appraises real estate or negotiates or offers to perform any of those acts; and
(B) is acting in association with and under the auspices of a managing broker.
(A) condominiums;
(B) townhouses;
(C) manufactured homes; or
(D) homes in a subdivision;
when sold, leased, or otherwise conveyed on a unit-by-unit basis, even if those units are part of a larger building or parcel of real estate containing more than four (4) residential units.
liability partnership, or a corporation that is licensed to do
business as a broker in a jurisdiction other than Indiana.
(15) (12) "Out-of-state commercial salesperson" includes a person
affiliated with an out-of-state commercial broker who is not
licensed as a salesperson broker under this article.
(13) "Managing broker" refers to a broker whom the
commission holds responsible for the actions of licensees who
are affiliated with the managing broker.
(1) administer and enforce the provisions of this article;
(2) adopt rules in accordance with IC 4-22-2 and prescribe forms for licenses, applications,
(3) issue, deny, suspend, and revoke licenses in accordance with this article, which licenses shall remain the property of the commission;
(4) subject to IC 25-1-7, investigate complaints concerning licensees or persons the commission has reason to believe should be licensees, including complaints respecting failure to comply with this article or the rules, and, when appropriate, take action pursuant to IC 25-34.1-6;
(5) bring actions, in the name of the state of Indiana, in an appropriate circuit court in order to enforce compliance with this article or the rules;
(6) inspect the records of a licensee in accordance with rules and standards prescribed by the commission;
(7) conduct, or designate a member or other representative to conduct, public hearings on any matter for which a hearing is required under this article and exercise all powers granted in IC 4-21.5;
(8) adopt a seal containing the words "Indiana Real Estate Commission" and, through its executive director, certify copies and authenticate all acts of the commission;
(9) utilize counsel, consultants, and other persons who are necessary or appropriate to administer and enforce this article and
the rules;
(10) enter into contracts and authorize expenditures that are
necessary or appropriate, subject to IC 25-1-6, to administer and
enforce this article and the rules;
(11) maintain the commission's office, files, records, and property
in the city of Indianapolis;
(12) grant, deny, suspend, and revoke approval of examinations
and courses of study as provided in IC 25-34.1-5;
(13) provide for the filing and approval of surety bonds which are
required by IC 25-34.1-5;
(14) adopt rules in accordance with IC 4-22-2 necessary for the
administration of the investigative fund established under
IC 25-34.1-8-7.5;
(15) annually adopt emergency rules under IC 4-22-2-37.1 to
adopt any or all parts of Uniform Standards of Professional
Appraisal Practice (USPAP), including the comments to the
USPAP, as published by the Appraisal Standards Board of the
Appraisal Foundation, under the authority of Title XI of the
Financial Institutions Reform, Recovery, and Enforcement Act
(12 U.S.C. 3331-3351); and
(16) exercise other specific powers conferred upon the
commission by this article; and
(17) adopt rules under IC 4-22-2 governing education,
including prelicensing, postlicensing, and continuing
education.
(b) The commission shall establish a fee of not more than twenty dollars ($20) for real estate brokers
(1) subsection (b);
(2) section 8(i) of this chapter; and
(3) section 11 of this chapter;
no person shall, for consideration, sell, buy, trade, exchange, option, lease, rent, manage, list, or appraise real estate or negotiate or offer to perform any of those acts in Indiana or with respect to real estate situated in Indiana, without a license.
(b) This article does not apply to:
(1) acts of an attorney which constitute the practice of law;
(2) performance by a public official of acts authorized by law;
(3) acts of a receiver, executor, administrator, commissioner, trustee, or guardian, respecting real estate owned or leased by the person represented, performed pursuant to court order or a will;
(4) rental, for periods of less than thirty (30) days, of rooms, lodging, or other accommodations, by any commercial hotel, motel, tourist facility, or similar establishment which regularly furnishes such accommodations for consideration;
(5) rental of residential apartment units by an individual employed or supervised by a licensed broker;
(6) rental of apartment units which are owned and managed by a person whose only activities regulated by this article are in relation to a maximum of twelve (12) apartment units which are located on a single parcel of real estate or on contiguous parcels of real estate;
(7) referral of real estate business by a broker
(8) acts performed by a person in relation to real estate owned by that person unless that person is licensed under this article, in which case the article does apply to him;
(9) acts performed by a regular, full-time, salaried employee of a person in relation to real estate owned or leased by that person unless the employee is licensed under this article, in which case the article does apply to him;
(10) conduct of a sale at public auction by a licensed auctioneer pursuant to IC 25-6.1;
(11) sale, lease, or other transfer of interests in cemetery lots; and
(12) acts of a broker,
commission shall notify the individual in writing that the individual's
license will become void if the individual does not associate with a
principal broker within thirty (30) days from the date the notification
is mailed. A void license may not be renewed.
(1) be at least eighteen (18) years of age before applying for a license and must not have a conviction for:
(A) an act that would constitute a ground for disciplinary sanction under IC 25-1-11;
(B) a crime that has a direct bearing on the individual's ability to practice competently; or
(C) a crime that indicates the individual has the propensity to endanger the public;
(2) have a high school diploma or a general educational development (GED) diploma under IC 20-20-6 (before its repeal) or IC 22-4.1-18;
(3) have successfully completed an approved broker course of study as prescribed in
(4) apply for a license by submitting the application fee prescribed by the commission and an application specifying the name, address, and age of the applicant, the name under which the applicant intends to conduct business, the address where the business is to be conducted, proof of compliance with subdivisions (2) and (3), and any other information the commission requires;
(5) pass a written examination prepared and administered by the commission or its duly appointed agent; and
(6) within one (1) year after passing the commission examination, submit the license fee established by the commission under IC 25-1-8-2. If an individual applicant fails to file a timely license fee, the commission shall void the application and may not issue a license to that applicant unless that applicant again complies with the requirements of subdivisions (4) and (5) and this
subdivision.
(b) To obtain a broker license, a partnership must:
(1) have as partners only individuals who are licensed brokers;
(2) have at least one (1) partner who:
(A) is a resident of Indiana; or
(B) is a principal managing broker under IC 25-34.1-4-3(b);
(3) cause each employee of the partnership who acts as a broker
or salesperson to be licensed; and
(4) submit the license fee established by the commission under
IC 25-1-8-2 and an application setting forth the name and
residence address of each partner and the information prescribed
in subsection (a)(4).
(c) To obtain a broker license, a corporation must:
(1) have a licensed broker:
(A) residing in Indiana who is either an officer of the
corporation or, if no officer resides in Indiana, the highest
ranking corporate employee in Indiana with authority to bind
the corporation in real estate transactions; or
(B) who is a principal managing broker under
IC 25-34.1-4-3(b);
(2) cause each employee of the corporation who acts as a broker
or salesperson to be licensed; and
(3) submit the license fee established by the commission under
IC 25-1-8-2, an application setting forth the name and residence
address of each officer and the information prescribed in
subsection (a)(4), a copy of the certificate of incorporation, and a
certificate of good standing of the corporation issued by the
secretary of state.
(d) To obtain a broker license, a limited liability company must:
(1) if a member-managed limited liability company:
(A) have as members only individuals who are licensed
brokers; and
(B) have at least one (1) member who is:
(i) a resident of Indiana; or
(ii) a principal managing broker under IC 25-34.1-4-3(b);
(2) if a manager-managed limited liability company, have a
licensed broker:
(A) residing in Indiana who is either a manager of the
company or, if no manager resides in Indiana, the highest
ranking company officer or employee in Indiana with authority
to bind the company in real estate transactions; or
(B) who is a principal managing broker under
IC 25-34.1-4-3(b);
(3) cause each employee of the limited liability company who acts
as a broker or salesperson to be licensed; and
(4) submit the license fee established by the commission under
IC 25-1-8-2 and an application setting forth the information
prescribed in subsection (a)(4), together with:
(A) if a member-managed company, the name and residence
address of each member; or
(B) if a manager-managed company, the name and residence
address of each manager, or of each officer if the company has
officers.
(e) Licenses granted to partnerships, corporations, and limited
liability companies are issued, expire, are renewed, and are effective on
the same terms as licenses granted to individual brokers, except as
provided in subsection (h), and except that expiration or revocation of
the license of:
(1) any partner in a partnership or all individuals in a corporation
satisfying subsection (c)(1); or
(2) a member in a member-managed limited liability company or
all individuals in a manager-managed limited liability company
satisfying subsection (d)(2);
terminates the license of that partnership, corporation, or limited
liability company.
(f) Upon the applicant's compliance with the requirements of
subsection (a), (b), or (c), the commission shall issue the applicant a
broker license and an identification card which certifies the issuance
of the license and indicates the expiration date of the license. The
license shall be displayed at the broker's place of business. For at least
two (2) years after the issuance of a license, the license must be
assigned to a managing broker. An individual who applies for a
broker's license after June 30, 2014, must, during the first two (2)
years after the license is issued, take and pass at least thirty (30)
hours of postlicensing education focused on the practical matters
of real estate transactions instead of the continuing education
requirements under IC 25-34.1-9.
(g) Unless the license is renewed, a broker license expires, for
individuals, on a date specified by the licensing agency under
IC 25-1-6-4 and expires biennially three (3) years after the initial
expiration date. An applicant for renewal shall submit an application
in the manner prescribed by the board commission and pay the renewal
fee established by the commission under IC 25-1-8-2 on or before the
renewal date specified by the licensing agency. If the holder of a
license does not renew the license by the date specified by the licensing
agency, the license expires and becomes invalid without the board
commission taking any action.
(h) If the holder of a license under this section fails to renew the
license on or before the date specified by the licensing agency, the
license may be reinstated by the commission if the holder of the
license, not later than three (3) years after the expiration of the license,
meets the requirements of IC 25-1-8-6(c).
(i) If a license under this section has been expired for more than
three (3) years, the license may be reinstated by the commission if the
holder meets the requirements for reinstatement under IC 25-1-8-6(d).
(j) A partnership, corporation, or limited liability company may not
be a broker-salesperson broker except as authorized in IC 23-1.5. An
individual broker who associates as a broker-salesperson with a
principal managing broker shall immediately notify the commission of
the name and business address of the principal managing broker and
of any changes of principal managing broker that may occur. The
commission shall then change the address of the broker-salesperson
broker on its records to that of the principal managing broker.
(b) A nonresident
(c) The requirements of this section may be waived for individuals of or moving from other jurisdictions if the following requirements are met:
(1) The jurisdiction grants the same privilege to the licensees of this state.
(2) The individual is licensed in that jurisdiction.
(3) The licensing requirements of that jurisdiction are substantially similar to the requirements of this chapter.
(4) The applicant states that the applicant has studied, is familiar with, and will abide by the statutes and rules of this state.
FOLLOWS [EFFECTIVE JULY 1, 2014]: Sec. 6. Each licensee and
each licensee's principal managing broker, if any, shall notify the
commission immediately of any change of name, name under which the
licensee transacts business, business address, or association.
(b) An individual may not be granted an inactive license without the approval of the commission if a disciplinary or suspension hearing is pending against the individual.
(c) An individual with an inactive license:
(1) may not perform an act that requires a
(2) is not required to fulfill the continuing education requirements under IC 25-34.1-9;
(3) is required to pay any fees that a licensee is required to pay; and
(4) must fulfill the:
(A) requirements under IC 25-34.1-9-11 for the current licensing period; or
(B) postlicensing education requirements as described in subsection (f);
whichever is applicable, before applying for reactivation of the individual's license.
(d) Notwithstanding IC 25-34.1-9-11(2), the commission may adopt rules under IC 4-22-2 establishing continuing education requirements for individuals who have reactivated a license with less than twelve (12) months remaining in the licensing period.
(e) Beginning July 1, 2014, a person who was licensed as a salesperson under section 3.1 of this chapter, before its repeal, and who applies for reactivation must complete the twenty-four (24) hour course required to become a broker under this article. The course described under this subsection may count toward the person's continuing education requirements.
(f) Beginning June 30, 2014, a broker licensed after June 30, 2014, who becomes inactive before completing the thirty (30) hour postlicensing education required under section 4.1(f) of this chapter, must complete the thirty (30) hours of postlicensure education before reactivation of the broker's license.
CODE AS A NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2014]: Sec. 10.5. (a) For purposes of this
section, "referral status" means that the commission has granted
an applicant of a license a waiver under IC 25-34.1-9-19 as a result
of the applicant meeting the requirements under
IC 25-34.1-9-19(2).
(b) For purposes of this section, "salesperson" has the meaning
set forth in IC 25-34.1-1-2(5) (before that subdivision was
removed).
(c) For purposes of this section, "salesperson's license" means
a license issued under section 3.1 of this chapter (before its repeal).
(d) Subject to subsection (e), the following applies to an
individual whose salesperson's license is in referral status on June
30, 2014:
(1) On July 1, 2014, the salesperson's license of the individual
becomes a broker's license under this article.
(2) The individual may continue to make referrals to a
licensed broker after June 30, 2014.
(e) An individual whose salesperson's license becomes a broker's
license under subsection (d) may only make referrals to a licensed
broker and may not perform any other act that requires a broker's
license under this article unless the individual does all of the
following:
(1) Completes at least twenty-four (24) hours of the education
described in IC 25-34.1-5-5.
(2) Meets the requirements to be a licensed broker under
IC 25-34.1-3-4.1.
(3) Attests to the commission that the individual has
completed the twenty-four (24) hours of education described
in subdivision (1).
(f) If:
(1) a broker is licensed under this article after June 30, 2014;
and
(2) the broker's license is placed on referral status before the
broker completes the thirty (30) hours of postlicensing
education required under section 4.1(f) of this chapter;
the broker must complete the thirty (30) hours of postlicensing
education before the broker's license may be moved from referral
status and the broker may perform acts that require a broker's
license under this article beyond making referrals to licensed
brokers.
FOLLOWS [EFFECTIVE JULY 1, 2014]: Sec. 11. (a) An out-of-state
commercial broker, for a fee, commission, or other valuable
consideration, or in expectation, or upon the promise of receiving or
collecting a fee, commission, or other valuable consideration, may
perform acts with respect to commercial real estate that require a
license under this article without a license under this article, if the
out-of-state commercial broker does all of the following:
(1) Works in cooperation with a broker who holds a valid license
issued under this article.
(2) Enters into a written agreement with the broker described in
subdivision (1) that includes the terms of cooperation and
compensation and a statement that the out-of-state commercial
broker and the broker's agents will comply with the laws of this
state.
(3) Furnishes the broker described in subdivision (1) with a copy
of the out-of-state commercial broker's current certificate of good
standing or other proof of a license in good standing from a
jurisdiction where the out-of-state commercial broker maintains
a valid real estate license.
(4) Files an irrevocable written consent with the commission that
legal actions arising out of the conduct of the out-of-state
commercial broker or the broker's agents may be commenced
against the out-of-state commercial broker in a court with
jurisdiction in a county in Indiana in which the cause of action
accrues.
(5) Advertises in compliance with state law and includes the
name of the broker described in subdivision (1) in all advertising.
(6) Deposits all escrow funds, security deposits, and other money
received by either the out-of-state commercial broker or the
broker described in subdivision (1) in a trust account maintained
by the broker described in subdivision (1).
(7) Deposits all documentation required by this section and
records and documents related to the transaction with the broker
described in subdivision (1).
(b) The broker described in subsection (a)(1) shall retain the
documentation that is provided by the out-of-state commercial broker
as required under this section, and the records and documents related
to a transaction, for at least five (5) years.
(c) An out-of-state commercial salesperson may perform acts with
respect to commercial real estate that require a salesperson broker to
be licensed under this article without a license under this article if the
out-of-state commercial salesperson meets all of the following
requirements:
(1) The out-of-state commercial salesperson:
(A) is licensed with and works under the direct supervision of
the out-of-state commercial broker;
(B) provides the broker described in subsection (a)(1) with a
copy of the out-of-state commercial salesperson's current
certificate of good standing or other proof of a license in good
standing from the jurisdiction where the out-of-state
commercial salesperson maintains a valid real estate license in
connection with the out-of-state commercial broker; and
(C) collects money, including:
(i) commissions;
(ii) deposits;
(iii) payments;
(iv) rentals; or
(v) escrow funds;
only in the name of and with the consent of the out-of-state
commercial broker under whom the out-of-state commercial
salesperson is licensed.
(2) The out-of-state commercial broker described in subdivision
(1)(A) meets all of the requirements of subsection (a).
(d) A person licensed in a jurisdiction where there is not a legal
distinction between a real estate broker license and a real estate
salesperson license must meet the requirements of subsection (a)
before engaging in an act that requires a license under this article.
(e) (d) An out-of-state commercial broker or out-of-state
commercial salesperson acting under this section shall file a written
consent as provided in section 5(b) of this chapter.
(1) hold a broker's license for at least two (2) years; and
(2) take and pass at least twenty-four (24) hours of broker management courses approved by the commission.
licensees shall notify the commission of the name and address of the
broker who manages each office.
(b) A nonresident:
(1) individual broker; or
(2) individual designated by a partnership, corporation, or limited liability company under section 2 of this chapter;
may be a
(1) shall keep in one (1) or more trust accounts (interest or noninterest bearing) all funds belonging to others that come into the possession of the
(2) shall clearly identify any account containing those funds as a trust account. The trust accounts shall contain all earnest money
deposits, funds held for closing escrows, sale proceeds not yet
disbursed, and all other funds belonging to others.
(b) The principal managing broker shall not use any trust account
for the deposit of any personal funds or other business funds and shall
keep a detailed record of the funds and any interest accrued in each
trust account that identifies the amount of funds held for each
beneficiary. Any interest earned shall be held for the beneficiary.
(c) Upon the death or termination of a principal managing broker
or the expiration, revocation, or suspension of the principal managing
broker's license, the commission shall take custody of each trust
account and may appoint a successor trustee to protect and distribute
the proceeds of that account.
(b) Upon associating with a new
(c) Each
(d) This section applies only to matters of licensing and responsibility under this article and does not affect the transfer of the deceased
[EFFECTIVE JULY 1, 2012]:
Chapter 4.5. License Transition
Sec. 1. Beginning July 1, 2014, the commission may not issue a
new salesperson license under this article.
Sec. 2. An individual who holds a salesperson's license under
this article may not, after June 30, 2014, sell, buy, trade, exchange,
option, lease, rent, manage, list, or appraise real estate or negotiate
or offer to perform any of those acts in Indiana or with respect to
real estate situated in Indiana for consideration without a broker's
license under this article.
Sec. 3. To obtain a broker's license, an individual holding a
license as a salesperson on or after June 30, 2012, must:
(1) complete at least twenty-four (24) hours of education
described in IC 25-34.1-5-5 to be licensed as a broker; and
(2) except for the requirement under IC 25-34.1-3-4.1(a)(2),
meet the requirements to be licensed as a broker under
IC 25-34.1-3-4.1.
Sec. 4. Notwithstanding any other law concerning education or
continuing education for salespersons, a salesperson may obtain
the twenty-four (24) hours of commission approved education
required under section 3 of this chapter at any time after June 30,
2012, and before July 1, 2014.
Sec. 5. The commission shall issue a broker's license to a
licensed salesperson who meets the requirements under sections 3
and 4 of this chapter.
Sec. 6. For the period beginning July 1, 2012, and ending June
30, 2014, notwithstanding any other law concerning continuing
education, the twenty-four (24) hours of additional education
required under section 3 of this chapter may be used to meet the
continuing education requirement for a salesperson under
IC 25-34.1-9-11.
Sec. 7. An individual who is a principal broker on June 30, 2014,
becomes a managing broker on July 1, 2014.
Sec. 8. This chapter expires December 31, 2014.
(1) provide the curriculum prescribed in section 5 of this chapter;
(2) have no more than thirty-five (35) students per instructor per classroom;
(3) provide adequate educational facilities and supportive personnel as is necessary to implement the purpose of this article;
(4) schedule not more than the maximum number of hours of instruction established by the commission in any twenty-four (24) hour period;
(5) administer at least two (2) written examinations during the broker course
(6) within
(7) maintain records of students who successfully complete and pass the course of study for a minimum of five (5) years or, in the event the school should cease operation, the owner shall provide a custodian acceptable to the commission to keep those records and provide copies to students at the fee in effect when the school ceases operation; and
(8) meet any other standards the commission may establish by regulation.
(b) Any instruction conducted in a broker
(1) Requirements for sponsors of courses.
(2) Requirements for instructors to be used by sponsors in providing courses.
(3) Requirements for the curricula for education courses required under this article.
(4) Rules to implement this chapter.
(5) Other issues identified by the commission in implementing this chapter.
(b) The commission shall approve all prelicensing courses.
(c) The commission may, with the advice of the council, approve online education required for licensing under this article.
commits a Class A infraction. Upon conviction for an offense under this section, the court shall add to any fine imposed the amount of any fee or other compensation earned in the commission of the offense. Each transaction constitutes a separate offense.
(b) In all actions for the collection of a fee or other compensation for performing acts regulated by this article, it must be alleged and proved that, at the time the cause of action arose, the party seeking relief was not in violation of this section.
(c) Each enforcement procedure established in this section and IC 25-1-7-14 is supplemental to other enforcement procedures established in this section.
real estate recovery fund. Service of process under this section shall be
made as nearly as practicable in the manner prescribed by the Indiana
Rules of Trial Procedure for service on corporations.
(b) The expenses of administering the fund shall be paid from the money in the fund. The fund consists of:
(1) money from a fee imposed upon licensed or certified appraisers and real estate brokers
(2) civil penalties deposited in the fund under IC 24-5-23.5-9(d);
(3) registration fees imposed on appraisal management companies under IC 25-34.1-11-15; and
(4) civil penalties deposited under IC 25-34.1-11-17.
(c) The treasurer of state shall invest the money in the fund not currently needed to meet the obligations of the fund in the same manner as other public money may be invested.
(d) Except as otherwise provided in this subsection, money in the fund at the end of a state fiscal year does not revert to the state general fund. If the total amount in the investigative fund exceeds seven hundred fifty thousand dollars ($750,000) at the end of a state fiscal year after payment of all claims and expenses, the amount that exceeds seven hundred fifty thousand dollars ($750,000) reverts to the state general fund.
(e) Money in the fund is continually appropriated for use by the
attorney general and the licensing agency to administer and enforce the
provisions of this article and to conduct investigations and take
enforcement action against real estate and appraisal fraud under this
article. The attorney general shall receive five dollars ($5) of each fee
collected under IC 25-34.1-2-7 and IC 25-34.1-3-9.5, and the licensing
agency shall receive any amount that exceeds five dollars ($5) of each
fee collected under IC 25-34.1-2-7 and IC 25-34.1-3-9.5.
(1) Requirements for sponsors of courses under this chapter.
(2) Requirements for instructors to be used by sponsors in providing courses under this chapter.
(3) Requirements for the curricula
(4) Rules to implement this chapter.
(5) Other issues identified by the commission to implement this chapter.
(b) Notwithstanding IC 25-1-4, the commission shall approve all postlicensing and continuing education courses.
(c) The commission may, with the advice of the council, approve online education required for licensing.
renewal period. each year.
(1) At least
(A) License and escrow law.
(B) Anti-trust law.
(C) Civil rights law.
(D) Agency law.
(E) Listing contracts and purchase agreements.
(F) Ethics and professionals standards.
(G) Settlement procedures.
(b) An attorney in good standing licensed to practice law in Indiana may satisfy the requirements of subsection (a) by completing the number of hours required by subsection (a) in continuing legal education courses in the subject matters listed in subsection (a).
(c) An individual who applies for a broker's license after June 30, 2014, must, during the first two (2) years after the license is issued, take and pass at least thirty (30) hours of postlicensing education focused on the practical matters of real estate transactions instead of the continuing education requirements under this chapter.
(d) For license renewal, a managing broker must complete at least twelve (12) hours of continuing education each year. At least four (4) hours of the continuing education must be dedicated to the necessary business and management skills and legal knowledge needed by a managing broker. The commission shall develop or approve the continuing education courses for managing brokers.
CODE AS A NEW SECTION TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2012]: Sec. 11.1. (a) Notwithstanding section
11 of this chapter, from July 1, 2013, until June 30, 2014, a real
estate broker licensed under IC 25-34.1-3-4.1, must complete eight
(8) hours of continuing education.
(b) This section expires July 1, 2014.
(b) A sponsor must submit:
(1) a letter requesting renewal of approval; and
(2) the renewal fee;
at least thirty (30) days before a sponsor's approval expires.
(1) Was not able to fulfill the requirement due to a hardship that resulted from any of the following:
(A) Service in the armed forces of the United States during a substantial part of the renewal period.
(B) An incapacitating illness.
(C) Other circumstances determined by the commission.
(2) Has certified on approved forms to the commission the following:
(A) That the applicant has an active license but will not perform an act that requires a
(B) That the applicant is affiliated with a
An individual granted a waiver under this subdivision may not perform an act that requires a
FOLLOWS [EFFECTIVE JULY 1, 2014]: Sec. 6.8. As used in this
chapter, "licensee" means an individual or entity issued a salesperson's
or broker's real estate license by the Indiana real estate commission.
(b) A licensee who personally represents both the seller and buyer or both the landlord and tenant in a real estate transaction is a limited agent and is required to comply with the provisions of this chapter governing limited agents.
(c) A licensee representing a client in an in-house agency relationship owes the client duties and obligations set forth in this chapter and shall not disclose material or confidential information obtained from the client to other licensees, except to the
(d) A
(e) In all in-house agency relationships, a
broker, the managing broker, and licensees.
(b) At the beginning of an agency relationship, a licensee shall disclose in writing the
(c) Parties to a real estate transaction shall be advised whether compensation will be shared with other
(d) The payment of compensation does not create an agency relationship between a licensee and a seller, landlord, buyer, or tenant.
(1) A mortgage transaction (as defined in IC 24-9-3-7(a)) that:
(A) is:
(i) a first lien purchase money mortgage transaction; or
(ii) a refinancing transaction; and
(B) is closed by a closing agent after December 31, 2009.
(2) A real estate transaction (as defined in IC 24-9-3-7(b)) that:
(A) does not involve a mortgage transaction described in subdivision (1); and
(B) is closed by a closing agent (as defined in IC 6-1.1-12-43(a)(2)) after December 31, 2011.
(b) For purposes of this subsection, a person described in this subsection is involved in a transaction to which this section applies if the person participates in or assists with, or will participate in or assist with, a transaction to which this section applies. The department shall establish and maintain an electronic system for the collection and storage of the following information, to the extent applicable, concerning a transaction to which this section applies:
(1) In the case of a transaction described in subsection (a)(1), the name and license number (under IC 23-2-5) of each loan brokerage business involved in the transaction.
(2) In the case of a transaction described in subsection (a)(1), the name and license or registration number of any mortgage loan originator who is:
(A) either licensed or registered under state or federal law as a mortgage loan originator consistent with the Secure and Fair Enforcement for Mortgage Licensing Act of 2008 (H.R. 3221 Title V); and
(B) involved in the transaction.
(3) The name and license number (under IC 25-34.1) of each:
(A)
(B)
involved in the transaction.
(4) The following information:
(A) The:
(i) name of; and
(ii) code assigned by the National Association of Insurance Commissioners (NAIC) to;
each title insurance underwriter involved in the transaction.
(B) The type of title insurance policy issued in connection with the transaction.
(5) The name and license number (under IC 27-1-15.6) of each title insurance agency and agent involved in the transaction as a closing agent (as defined in IC 6-1.1-12-43(a)(2)).
(6) The following information:
(A) The name and:
(i) license or certificate number (under IC 25-34.1-3-8) of each licensed or certified real estate appraiser; or
(ii) license number (under IC 25-34.1) of each broker;
who appraises the property that is the subject of the transaction.
(B) The name and registration number (under IC 25-34.1-11-10) of any appraisal management company that performs appraisal management services (as defined in IC 25-34.1-11-3) in connection with the transaction.
(7) In the case of a transaction described in subsection (a)(1), the name of the creditor and, if the creditor is required to be licensed under IC 24-4.4, the license number of the creditor.
(8) In the case of a transaction described in subsection (a)(1)(A)(i) or (a)(2), the name of the seller of the property that is the subject of the transaction.
(9) In the case of a transaction described in subsection (a)(1)(A)(i), the following information:
(A) The name of the buyer of the property that is the subject of the transaction.
(B) The purchase price of the property that is the subject of the transaction.
(C) The loan amount of the mortgage transaction.
(10) In the case of a transaction described in subsection (a)(2), the following information:
(A) The name of the buyer of the property that is the subject of the transaction.
(B) The purchase price of the property that is the subject of the transaction.
(11) In the case of a transaction described in subsection (a)(1)(A)(ii), the following information:
(A) The name of the borrower in the mortgage transaction.
(B) The loan amount of the refinancing.
(12) The:
(A) name; and
(B) license number, certificate number, registration number, or other code, as appropriate;
of any other person that is involved in a transaction to which this section applies, as the department may prescribe.
(c) The system established by the department under this section must include a form that:
(1) is uniformly accessible in an electronic format to the closing agent (as defined in IC 6-1.1-12-43(a)(2)) in the transaction; and
(2) allows the closing agent to do the following:
(A) Input information identifying the property that is the subject of the transaction by lot or parcel number, street address, or some other means of identification that the department determines:
(i) is sufficient to identify the property; and
(ii) is determinable by the closing agent.
(B) Subject to subsection (d) and to the extent determinable, input the applicable information described in subsection (b).
(C) Respond to the following questions, if applicable:
(i) "On what date did you receive the closing instructions from the creditor in the transaction?".
(ii) "On what date did the transaction close?".
(D) Submit the form electronically to a data base maintained by the department.
(d) Not later than the time of the closing, each person described in subsection (b), other than a person described in subsection (b)(8),
(b)(9), (b)(10), or (b)(11), shall provide to the closing agent in the
transaction the person's:
(1) legal name; and
(2) license number, certificate number, registration number, or
NAIC code, as appropriate;
to allow the closing agent to comply with subsection (c)(2)(B). In the
case of a transaction described in subsection (a)(1), the person
described in subsection (b)(7) shall, with the cooperation of any person
involved in the transaction and described in subsection (b)(6)(A) or
(b)(6)(B), provide the information described in subsection (b)(6). In the
case of a transaction described in subsection (a)(1)(A)(ii), the person
described in subsection (b)(7) shall also provide the information
described in subsection (b)(11). A person described in subsection
(b)(3)(B) who is involved in the transaction may provide the
information required by this subsection for a person described in
subsection (b)(3)(A) that serves as the principal managing broker for
the person described in subsection (b)(3)(B). The closing agent shall
determine the information described in subsection (b)(8), (b)(9), and
(b)(10) from the HUD-1 settlement statement, or in the case of a
transaction described in subsection (a)(2), from the contract or any
other document executed by the parties in connection with the
transaction.
(e) Except for a person described in subsection (b)(8), (b)(9),
(b)(10), or (b)(11), a person described in subsection (b) who fails to
comply with subsection (d) is subject to a civil penalty of one hundred
dollars ($100) for each closing with respect to which the person fails
to comply with subsection (d). The penalty:
(1) may be enforced by the state agency that has administrative
jurisdiction over the person in the same manner that the agency
enforces the payment of fees or other penalties payable to the
agency; and
(2) shall be paid into the home ownership education account
established by IC 5-20-1-27.
(f) Subject to subsection (g), the department shall make the
information stored in the data base described in subsection (c)(2)(D)
accessible to:
(1) each entity described in IC 4-6-12-4; and
(2) the homeowner protection unit established under IC 4-6-12-2.
(g) The department, a closing agent who submits a form under
subsection (c), each entity described in IC 4-6-12-4, and the
homeowner protection unit established under IC 4-6-12-2 shall exercise
all necessary caution to avoid disclosure of any information:
(1) concerning a person described in subsection (b), including the person's license, registration, or certificate number; and
(2) contained in the data base described in subsection (c)(2)(D);
except to the extent required or authorized by state or federal law.
(h) The department may adopt rules under IC 4-22-2, including emergency rules under IC 4-22-2-37.1, to implement this section. Rules adopted by the department under this subsection may establish procedures for the department to:
(1) establish;
(2) collect; and
(3) change as necessary;
an administrative fee to cover the department's expenses in establishing and maintaining the electronic system required by this section.
(i) If the department adopts a rule under IC 4-22-2 to establish an administrative fee to cover the department's expenses in establishing and maintaining the electronic system required by this section, as allowed under subsection (h), the department may:
(1) require the fee to be paid:
(A) to the closing agent responsible for inputting the information and submitting the form described in subsection (c)(2); and
(B) by the borrower, the seller, or the buyer in the transaction;
(2) allow the closing agent described in subdivision (1)(A) to retain a part of the fee collected to cover the closing agent's costs in inputting the information and submitting the form described in subsection (c)(2); and
(3) require the closing agent to pay the remainder of the fee collected to the department for deposit in the title insurance enforcement fund established by IC 27-7-3.6-1, for the department's use in establishing and maintaining the electronic system required by this section.
(1) is required under a transfer fee covenant; and
(2) is payable:
(A) upon the transfer of an interest in real property; or
(B) for the right to make or accept a transfer of an interest in real property;
regardless of whether the fee or charge is in a fixed amount or is determined as a percentage of the value of the property, of the purchase
price of the property, or of any consideration given for the transfer of
the property.
(b) The term does not include any of the following:
(1) Any consideration payable by the transferee to the transferor
for the interest in the real property being transferred, including
any consideration payable for a separate mineral estate and its
appurtenant surface access rights.
(2) Any commission to a real estate broker or salesperson licensed
under IC 25-34.1 payable:
(A) in connection with the transfer of an interest in real
property; and
(B) under an agreement between the real estate broker or
salesperson and the transferor or transferee.
(3) Any interest, charges, fees, or other amounts payable by a
borrower to a lender under a loan secured by a mortgage against
an interest in real property, including the following:
(A) Any fee payable to the lender for consenting to an
assumption of the loan or to a transfer of the property interest
subject to the mortgage.
(B) Any fees or charges payable to the lender for estoppel
letters or certificates.
(C) Any other consideration allowed by law and payable to the
lender in connection with the loan.
(4) Any rent, reimbursement, charge, fee, or other amount payable
by a lessee to a lessor under a lease, including any fee payable to
the lessor for consenting to an assignment, subletting,
encumbrance, or transfer of the lease.
(5) Any consideration payable to the holder of:
(A) an option to purchase an interest in real property; or
(B) a right of first refusal or first offer to purchase an interest
in real property;
for waiving, releasing, or not exercising the option or right upon
the transfer of the property interest to another person.
(6) Any tax, fee, charge, assessment, fine, or other amount
payable to or imposed by a governmental entity.
(7) Any fee, charge, assessment, fine, or other amount payable to:
(A) a homeowners association;
(B) a condominium association;
(C) a cooperative association;
(D) a mobile home association;
(E) another property owners association; or
(F) an agent representing an association described in clauses
(A) through (E);
under a covenant, law, or contract applicable to the association.
(1) signed by:
(A) the owner of an interest in the commercial real estate or by the owner's authorized agent; or
(B) a prospective buyer or prospective tenant, or by the buyer's or tenant's authorized agent; and
(2) entered into after June 30, 2006.
A lien under this chapter is available to the
(1) the
(2) except as provided in sections 8 and 9 of this chapter, the
of the recorder of the county in which the commercial real estate
or an interest in the commercial real estate is located:
(A) before the recording of the deed for the actual conveyance
or transfer of the commercial real estate against which the
broker is claiming a lien, if the principal managing broker
claims fees or commissions from the party conveying or
transferring an interest in the commercial real estate; or
(B) not later than ninety (90) days after the recording of the
deed or other instrument for the purchase or other conveyance
or transfer of the commercial real estate, if the principal
managing broker claims fees or commissions from the party
receiving a conveyance or transfer of an interest in the
commercial real estate.
(b) A lien under this chapter attaches on the date of the recording of
the notice of the lien under subsection (a)(2) and does not relate back
to the date of the written agreement, contract, or other written
instrument described in subsection (a)(1).
(1) to fees or commissions that arise from a lease, including fees or commissions for a sale of the property, lease expansions, or lease renewals;
(2) if a
(3) if a
(b) Not later than ten (10) days before the planned closing of a transaction involving the sale of commercial real estate, the owner shall notify the following persons of the date of the closing, the time of the closing, the address of the closing, and of the name of the closing agent, title company, or title insurance agent:
(1) One (1) or more
(2) The closing agent, title company, or title insurance agent involved in the transaction.
Notice under this subsection shall be sent by registered or certified mail, return receipt requested, or by another means of service authorized by the Indiana trial rules that provides proof that the addressee has received the notice.
(c) To exercise its rights under this chapter to file a lien after receipt of the notice under subsection (b), the
notify the closing agent, title company, or title insurance agent at the
address in the notice of the amount of the fees or commissions owed
before the time of the closing stated in the notice.
(d) If the principal managing broker does not attend the closing of
a transaction involving the sale of commercial real estate, the owner
shall certify in writing at the closing, under the penalties of perjury:
(1) that:
(A) the owner has notified the principal managing broker in
accordance with subsection (b); and
(B) the principal managing broker received the notice; or
(2) that the principal managing broker has been paid in full.
(1) payment to a
(2) a part of the installment payments is due only after the conveyance or transfer of the commercial real estate involved in the transaction.
(b) Subject to subsection (c), the
(c) A single claim for a lien recorded:
(1) before the transfer or conveyance of the commercial real estate; and
(2) with respect to all payments due in installments;
is valid and enforceable with respect to payments due after the transfer or conveyance. However, as payments or partial payments of fees or commissions are received by the
[EFFECTIVE JULY 1, 2014]: Sec. 9. (a) Subject to subsection (b), in
the case of a lease of commercial real estate, including a sublease or an
assignment of a lease, the notice of a lien under this chapter must be
recorded not later than ninety (90) days after the tenant takes
possession of the leased premises. However, if:
(1) the transferor personally serves, on the principal managing
broker entitled to claim a lien, written notice of the intended
execution of the lease; and
(2) the notice described in subdivision (1) is served not later than
ten (10) days before the date of the intended execution of the
lease;
the principal managing broker's notice of lien must be recorded before
the date indicated in the notice described in subdivision (1) for the
execution of the lease. The lien attaches on the recording of the notice
of lien and does not relate back to the date of the written agreement,
contract, or written instrument under which the principal managing
broker is entitled to fees or commissions.
(b) As used in this subsection, "future fees or commissions" refers
to fees or commissions:
(1) other than those fees or commissions due to a principal
managing broker upon the execution of a lease under subsection
(a); or
(2) due to the principal managing broker upon the exercise of an
option to:
(A) expand the leased premises;
(B) renew or extend a lease; or
(C) purchase the commercial real estate;
under a written agreement, a contract, or another written instrument
signed by the owner or tenant of the commercial real estate. The
principal managing broker may record a memorandum of lien at any
time after execution of the lease or other written agreement, contract,
or written instrument that contains rights to future fees or commissions.
The principal managing broker shall record a notice of lien no later
than ninety (90) days after the occurrence of a condition for which
future fees or commissions are claimed, but may not file a notice of lien
against an owner's property if the tenant is the sole party liable for
payment of the future fees or commissions. Except as provided in
section 11(a) or 13(b) of this chapter, an action to foreclose a lien to
collect future fees or commissions must be commenced not later than
one (1) year after the recording of the notice of the lien. A
memorandum of lien recorded under this chapter must meet the
requirements of section 12(1)(A), 12(1)(B), 12(1)(C), 12(1)(E), 12(2),
12(3), and 12(4) of this chapter. A memorandum of lien shall not
constitute a lien against the real estate but shall provide notice of the
right to future fees or commissions.
(c) If:
(1) commercial real estate is sold or otherwise conveyed before
the date on which future fees or commissions are due; and
(2) the principal managing broker has recorded a valid
memorandum of lien or notice of lien before the sale or other
conveyance of the commercial real estate;
the purchaser or transferee is considered to have notice of and takes
title to the commercial real estate subject to the right to future fees or
commissions and, if applicable, notice of lien. However, if a principal
managing broker claiming future fees or commissions fails to record
a memorandum of lien or notice of lien for the future fees or
commissions before the recording of a deed conveying legal title to the
commercial real estate to the purchaser or transferee, the principal
managing broker may not claim a lien on the commercial real estate.
This subsection does not limit or otherwise affect claims or defenses a
principal managing broker or owner or any other party may have in
law or equity.
the lien shall, not later than one (1) year after recording the notice of
the lien, commence proceedings to foreclose the lien. However, for
future fees or commissions payable over a period in excess of one (1)
year from the occurrence of a condition for which such future fees or
commissions are claimed, the commencement of the suit must be
within one (1) year of the latest date for which future fees or
commissions are due. A principal managing broker's failure to
commence proceedings within the time prescribed by this subsection
extinguishes the lien and a subsequent notice of lien may not be given
for the same claim, nor may that claim be asserted in any other
proceedings under this chapter.
(b) A principal managing broker claiming a lien based upon an
option or other right to purchase or lease commercial real estate shall,
not later than one (1) year after recording the notice of the lien,
commence proceedings to foreclose the lien. A principal managing
broker's failure to commence proceedings within the time prescribed
by this subsection extinguishes the lien and a subsequent notice of lien
may not be given for the same claim, nor may that claim be asserted in
any other proceedings under this chapter.
(c) The foreclosure of a lien recorded under this chapter shall be
conducted under the same rules and same procedures applicable to the
foreclosure of mortgages upon real estate. A complaint under this
section must contain:
(1) a brief statement of the written agreement, contract, or other
written instrument that is the basis for the lien;
(2) the date when the written agreement, contract, or other written
instrument was made;
(3) a description of the services performed by the principal
managing broker;
(4) the amount due and unpaid for the services described in
subdivision (3);
(5) a description of the commercial real estate subject to the
notice of lien; and
(6) other facts reasonably necessary to describe the rights of the
parties.
(1) state:
(A) the name of the claimant;
(B) the name of the owner of the commercial real estate upon
which the lien is claimed;
(C) a legal description of the commercial real estate upon
which the lien is claimed;
(D) the amount for which the lien is claimed; and
(E) the license number of the principal managing broker's
license under IC 25-34.1;
(2) contain a statement that the information contained in the
notice is true and accurate to the knowledge of the signatory;
(3) be signed by the principal managing broker or by a person
authorized to sign on behalf of the principal managing broker;
and
(4) be verified.
(1) a memorandum of lien or notice of lien has been recorded with the office of the recorder of the appropriate county; and
(2) a condition occurs that would preclude the
the
(b) Upon written demand:
(1) served by the owner, buyer, or tenant described in section 5 of this chapter, or the authorized agent of the owner, buyer, or tenant described in section 5 of this chapter, on the
(2) requiring the
(A) bring a suit to enforce the lien; or
(B) file an answer in a pending suit;
the
(c) If:
(1) a memorandum of lien or notice of lien under this chapter has been filed with the office of the recorder and the fees or
commissions upon which the lien is based have been paid to the
principal managing broker claiming the lien; or
(2) the principal managing broker fails to institute a suit to
enforce the lien within the time prescribed by this chapter;
the principal managing broker shall, not later than five (5) days after
receipt of a written demand from the owner, buyer, or tenant described
in section 5 of this chapter for a release or an acknowledgment of
satisfaction of the memorandum or lien, acknowledge satisfaction or
release of the memorandum or lien in writing.
(1) a claim for a lien under this chapter has been filed with the office of the recorder of the county in which commercial real estate or any interest in commercial real estate is located; and
(2) an escrow account is established among:
(A) the one (1) or more parties allegedly responsible for payment of the fees or commissions on which the lien is based;
(B) the
(C) an independent third party as escrowee;
from the proceeds of the conveyance, or from any other source of
funds, in an amount that is at least one hundred ten percent
(110%) of the amount of the lien claimed under this chapter;
the lien against the real estate is extinguished and becomes a lien on
the funds contained in the escrow account. The establishment of an
escrow account described in this section does not constitute cause for
any party to refuse to close the transaction.
(1) Actual damages.
(2) The costs of the action.
(3) Reasonable attorney's fees.
However, if the party establishes that the owner's violation of the notice or certification provisions was fraudulent, a court may award the party damages that do not exceed three (3) times actual damages.
(b) It is a defense to an action brought under this section that the most recent address provided by the
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