Bill Text: IN SB0275 | 2012 | Regular Session | Introduced
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-Introduced.html
Citations Affected: IC 23-1.5-1-13.5; IC 23-2-5-3; IC 25-20.2;
IC 25-34.1; IC 27-7-3-15.5; IC 32-21-14-2; IC 32-28-12.5.
Synopsis: Real estate brokers. Provides for the licensure of real estate
brokers and managing real estate brokers. Eliminates the license for
real estate salesperson and the certification for principal real estate
brokers. Provides that licences issued under this article are issued for
three years. (Currently licenses are issued for two years.) Revises
continuing education requirements. Makes conforming changes.
Effective: July 1, 2012.
January 4, 2012, read first time and referred to Committee on Public Policy.
PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana Constitution) is being amended, the text of the existing provision will appear in this style type, additions will appear in this style type, and deletions will appear in
Additions: Whenever a new statutory provision is being enacted (or a new constitutional provision adopted), the text of the new provision will appear in this style type. Also, the word NEW will appear in that style type in the introductory clause of each SECTION that adds a new provision to the Indiana Code or the Indiana Constitution.
Conflict reconciliation: Text in a statute in this style type or
A BILL FOR AN ACT to amend the Indiana Code concerning
professions and occupations.
(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 secured by a mortgage, deed of trust, or other consensual security interest on real estate in Indiana on which there is located or intended to be constructed a dwelling (as defined in the federal Truth in Lending Act (15 U.S.C. 1602(v)) that is or will be used primarily for personal, family, or household purposes.
(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.
SECTION 63, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2012]: Sec. 1. (a) This article applies to an individual who
conducts home inspections for compensation.
(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 broker-salesperson, or salesperson and is acting within the
scope of the individual's license.
(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, 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.
broker-salesperson.
(8) (5) "License" means a broker or salesperson license issued
under this article and which is not expired, suspended, or revoked.
(9) (6) "Licensee" means a person who holds a license issued
under this article. The term does not include a person who holds
a real estate appraiser license or certificate issued under the real
estate appraiser licensure and certification program established
under IC 25-34.1-3-8.
(10) (7) "Course approval" means approval of a broker or
salesperson course granted under this article which is not expired,
suspended, or revoked.
(11) (8) "Licensing agency" means the Indiana professional
licensing agency established by IC 25-1-5-3.
(12) (9) "Board" refers to the real estate appraiser licensure and
certification board established under IC 25-34.1-8-1.
(13) (10) "Commercial real estate" means a parcel of real estate
other than real estate containing one (1) to four (4) residential
units. This term does not include single family residential units
such as:
(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.
(14) (11) "Out-of-state commercial broker" includes a person, a
partnership, an association, a limited liability company, a limited
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 under this article.
(13) "Managing broker" refers to a broker licensed under
IC 25-34.1-9-4.2.
(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.
(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 salesperson, or
referral company which is licensed under the laws of another
state, to or from brokers and salespersons licensed by this state;
(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, or salesperson, who is licensed under the
laws of another state, which are performed pursuant to, and under
restrictions provided by, written permission that is granted by the
commission in its sole discretion, except that such a person shall
comply with the requirements of section 5(c) of this chapter.
age of the applicant, the name under which the applicant intends
to conduct business, the principal broker's address where the
business is to be conducted, proof of compliance with subdivision
(2), and any other information the commission requires;
(4) pass a written examination prepared and administered by the
commission or its duly appointed agent; and
(5) submit not more than one (1) year after passing the written
examination under subdivision (4) a sworn certification of a
principal broker that the principal broker intends to associate with
the applicant and maintain that association until notice of
termination of the association is given to the commission.
(b) Upon the applicant's compliance with the requirements of
subsection (a), the commission shall:
(1) issue a wall certificate in the name of the salesperson to the
principal broker who certified the applicant's association with the
principal broker; and
(2) issue to the salesperson a pocket identification card which
certifies that the salesperson is licensed and indicates the
expiration date of the license and the name of the principal
broker.
(c) A salesperson shall:
(1) act under the auspices of the principal broker responsible for
that salesperson's conduct under this article;
(2) be associated with only one (1) principal broker;
(3) maintain evidence of licensure in the office, branch office, or
sales outlet of the principal broker;
(4) advertise only in the name of the principal broker, with the
principal broker's name in letters of advertising larger than that of
the salesperson's name; and
(5) not maintain any real estate office apart from that office
provided by the principal broker.
(d) Upon termination of a salesperson's association with a principal
broker, the salesperson's license shall be returned to the commission
within five (5) business days. The commission shall reissue the license
to any principal broker whose certification, as prescribed in subsection
(a)(5), is filed with the commission, and the commission shall issue a
new identification card to the salesperson reflecting that change.
(e) Unless a license is renewed, a salesperson license expires on a
date specified by the licensing agency under IC 25-1-6-4 and expires
biennially after the initial expiration date. An applicant for renewal
shall submit an application in the manner prescribed by the board and
pay the renewal fee established by the board 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 taking any action.
(f) 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).
(g) 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).
(h) A salesperson license may be issued to an individual who is not
yet associated with a principal broker but who otherwise meets the
requirements of subsection (a). A license issued under this subsection
shall be held by the commission in an unassigned status until the date
the individual submits the certification of a principal broker required
by subsection (a)(5). If the individual does not submit the application
for licensure within one (1) year after passing the commission
examination, the commission shall void the application and may not
issue a license to that applicant unless the applicant again complies
with the requirements of subsection (a)(4) through (a)(5).
(i) If an individual holding a salesperson license is not associated
with a principal broker for two (2) successive renewal periods, the
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.
(b) This section expires July 1, 2014.
(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 satisfied section 3.1(a)(2) of this chapter and have had
continuous active experience for one (1) year immediately
preceding the application as a licensed salesperson in Indiana.
However, this one (1) year experience requirement may be
waived by the commission upon a finding of equivalent
experience;
(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 IC 25-34.1-5-5(b); IC 25-34.1-5-5;
(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 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 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 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 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. During the first two (2) years after
the license is issued, an individual with a broker's license must take
and pass thirty (30) hours of post-licensing education focused on
the practical matters of real estate transactions instead of the
continuing education requirements of 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 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
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 except as authorized in IC 23-1.5. An
individual broker who associates as a broker-salesperson with a
principal broker shall immediately notify the commission of the name
and business address of the principal broker and of any changes of
principal broker that may occur. The commission shall then change the
address of the broker-salesperson on its records to that of the principal
broker.
(k) On July 1, 2014, an individual who:
(1) holds a salesperson license on June 30, 2012; and
(2) meets the broker licensing requirements of this section;
is a licensed 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.
(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 salesperson or broker's
license;
(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 requirements under IC 25-34.1-9-11 for the
current licensing period 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.
(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
(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) An out-of-state commercial broker or salesperson acting under this section shall file a written consent as provided in section 5(b) of this chapter.
(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
JULY 1, 2012]: Sec. 5. (a) Each principal managing broker:
(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 principal managing broker or of any
associated salesperson or broker-salesperson; broker; and
(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
(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 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
license law and professional standards, law of agency, contracts,
interests in real property, evidence of title, deeds, legal property
descriptions, mathematics, taxes, valuation of real property, financing,
listing contracts and purchase agreements, settlement procedures,
property management, government regulations, and planning and
zoning.
(b) The required curriculum for brokers shall consist of a total of at
least twenty-four (24) ninety (90) hours of instruction and shall include
the following subjects: principles, practices, Indiana license law and
professional standards, law of agency, contracts, financing, settlement
procedures, escrow responsibility, recordkeeping, government
regulations, and appraising.
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.
FOLLOWS [EFFECTIVE JULY 1, 2012]: Sec. 10. If the commission
is required to make any payment from the real estate recovery fund in
settlement of a claim or toward the satisfaction of a judgment under
this chapter, the commission shall suspend the judgment debtor's
license and, if the judgment debtor is licensed under IC 25-34.1-3-3.1,
IC 25-34.1-3-4.1 the license of the individual designated broker, under
this article. The licensee is not eligible to be licensed again as either a
broker or a salesperson until the licensee has repaid in full the amount
paid from the real estate recovery fund with interest of twelve percent
(12%) per annum.
(b) The commission shall appoint members from different geographic areas of Indiana.
(1) maintain trust accounts and trust account records;
(2) maintain company transaction records;
(3) supervise all licensees or brokers whose licenses are placed with the managing broker;
(4) facilitate brokerage relationships including cooperating and communication for the benefit of clients;
(5) be knowledgeable and fulfill duties of agency and license laws;
(6) be aware of and involved with commission requirements;
(7) stay current on risk management techniques and legal developments in the real estate business;
(8) comply with fiduciary responsibilities of business ownership, including accounting, profit and loss, corporate records, minutes, and taxes; and
(9) supervise all advertising of the firm and independent contractors of the firm.
(b) To become a managing broker, an individual must hold a brokers license issued under this article for at least two (2) years and take and pass a twenty-four (24) hour broker management course approved by the commission.
(c) For license renewal, a managing broker must complete twelve (12) hours of continuing education each year. At lease 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.
(d) On July 1, 2012, an a licensee holding a license as a principal broker is a managing broker.
(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 i
(4) Rules to implement this chapter.
(5) Other issues identified by the commission to implement this chapter.
(b) Notwithstanding IC 25-1-4-0.2, the commission shall approve all prelicensing and continuing education courses.
(c) The commission may, with the advice of the council, approve online education required for licensing.
(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).
(b) Notwithstanding section 11 of this chapter, from July 1, 2012, until June 30, 2013, a real estate broker licensed under IC 25-34.1-3-4.1, must complete sixteen (16) hours of continuing education each year.
(c) 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 twelve (12) hours of continuing education.
(d) This section expires July 1, 2014.
(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
a client.
(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 principal or
managing broker for the purpose of seeking advice or assistance for the
client's benefit.
(d) A principal broker, managing broker and any affiliated licensee
shall take reasonable and necessary care to protect any material or
confidential information disclosed by a client to the client's in-house
agent.
(e) In all in-house agency relationships, a principal broker,
managing broker and an individual licensee possess only actual
knowledge and information. There is no imputation of agency,
knowledge, or information among or between clients, the principal
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
(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
(A) in connection with the transfer of an interest in real property; and
(B) under an agreement between the real estate broker
(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
signed by the owner, buyer, or tenant, or their respective agents, and
not to an employee or independent contractor of the principal
managing broker.
(1) the
(2) except as provided in sections 8 and 9 of this chapter, the
(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
(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
(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 principal managing brokers to whom the
owner owes fees or commissions.
(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 principal managing broker must
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
effective against the transferee's interest in the commercial real estate
without the limitation described in this subsection.
(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 principal managing broker, the
principal managing broker shall, by providing partial releases with
respect to those payments, reduce the amount due the principal
managing broker under the notice of lien described in this subsection.
(1) the transferor personally serves, on the
(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
(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
(2) due to the
(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 claim for the lien is based. If the address of the owner or the
owner's agent is not stated, the principal managing broker shall
personally serve or mail, by registered or certified mail, a copy of the
notice of the lien to the address where real estate taxes are sent for the
commercial real estate on which the claim of lien is based. Mailing of
the copy of the notice of lien is effective when deposited in the United
States mail with postage prepaid. Personal service of the notice of the
lien is effective upon receipt by the owner or the agent of the owner of
record. A principal managing broker's lien is unenforceable if mailing
or service of the copy of notice of lien does not occur at the time and
in the manner required by this section.
(b) A
(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
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) 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
(2) the
the
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
