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2018 Georgia Code 43-40-1 | Car Wreck Lawyer

Link to State of Georgia Official Statute 2018 Georgia Code Annotated (sourced from legal.resource.org)
O.C.G.A. 43-40-1 Case Law from Google Scholar Amendments to OCGA 43-40-1

TITLE 43 PROFESSIONS AND BUSINESSES

Section 40. Real Estate Brokers and Salespersons, 43-40-1 through 43-40-32.

ARTICLE 10 PAIN MANAGEMENT CLINIC

43-40-1. Definitions.

As used in this chapter, the term:

  1. "Associate broker" means a person who acts on behalf of a real estate broker in performing any act authorized by this chapter to be performed by the broker.
  2. "Broker" means any person who, for another, and who, for a fee, commission, or any other valuable consideration or with the intent or expectation of receiving the same from another:
    1. Negotiates or attempts to negotiate, or assists in procuring prospects for the listing, sale, purchase, exchange, renting, lease, or option for any real estate or of the improvements thereon;
    2. Holds himself or herself out as a referral agent for the purpose of securing prospects for the listing, sale, purchase, exchange, renting, lease, or option for any real estate;
    3. Collects rents, assessments, or other trust funds or attempts to collect rents, assessments, or other trust funds;
    4. Is employed by or on behalf of the owner or owners of lots, time-share intervals, or other parcels of real estate at a salary, fee, commission, or any other valuable consideration to sell such real estate or any part thereof in lots or parcels or intervals or other disposition thereof;
    5. Engages in the business of charging an advance fee or contracting for collecting of a fee, other than an advertising fee, in connection with any contract whereby he or she undertakes primarily to promote the sale of real estate either through its listing in a publication issued primarily for such purpose, or for referral of information concerning such real estate to brokers, or both;
    6. Auctions or offers or attempts or agrees to auction real estate;
    7. Buys or offers to buy, sells or offers to sell, or otherwise deals in options to buy real estate;
    8. Performs property management services or community association management services;
    9. Provides or attempts to provide to any party to a real estate transaction consulting services designed to assist the party in the negotiations or procurement of prospects for the listing, sale, purchase, exchange, renting, lease, or option for any real estate or the improvements thereon; or
    10. Advertises or holds himself or herself out as engaged in any of the foregoing.

    (2.1) "Brokerage agreement" means an express written contract wherein the client promises to pay the real estate broker a valuable consideration or agrees that the real estate broker may receive a valuable consideration from another in consideration of the broker's producing a seller, buyer, tenant, or landlord ready, able, and willing to sell, buy, or rent the property or in consideration of the broker's performing property management services or performing community association management services.

  3. "Commission" means the Georgia Real Estate Commission.
  4. "Commissioner" means the real estate commissioner.

    (4.1) "Community association" means an owner organization of a residential or mixed use common interest realty association in which membership is mandatory as an incident of ownership within the development, such as condominiums, cooperatives, homeowner associations, timeshares, lot division with restrictions in management, and other forms of common interest or planned developments wherein there is a common management.

    (4.2) "Community association management services" means the provision, for a valuable consideration, to others of management or administrative services on, in, or to the operation of the affairs of a community association, including, but not limited to, collecting, controlling, or disbursing the funds; obtaining insurance, arranging for and coordinating maintenance to the association property; and otherwise overseeing the day-to-day operations of the association.

    (4.3) "Community association manager" means a person who acts on behalf of a real estate broker in providing only community association management services.

    (4.4) "Firm" means any business entity, including, but not limited to, a corporation, partnership, limited liability company, or sole proprietorship.

  5. "Licensee" means any person who is licensed as a community association manager, salesperson, associate broker, or broker.

    (5.1) "Ministerial acts" means those acts related to real estate brokerage activities which a licensee or a licensee's employee performs and which do not require discretion or the exercise of the licensee's own judgment.

  6. "Person" means individuals and firms.
  7. "Property management services" means the provision, for a valuable consideration, to another of marketing, including referring prospective tenants; leasing; physical, administrative, or financial maintenance; and overall management of real property; or supervision of the foregoing activities for another pursuant to a property management agreement.
  8. "Purchaser" means a person who acquired or attempts to acquire or succeeds to an interest in land.
  9. "Real estate" means condominiums and leaseholds, as well as any other interest or estate in land, whether corporeal, incorporeal, freehold or nonfreehold and whether the real estate is situated in this state or elsewhere; and shall also include a mobile home when such mobile home is affixed to land. "Mobile home," as used in this paragraph, means any factory-built structure or structures equipped with the necessary service connections and made so as to be readily movable as a unit or units and designed to be used as a dwelling unit or units.
  10. "Salesperson" means any person, other than an associate broker, who acts on behalf of a real estate broker in performing any act authorized by this chapter to be performed by the broker.
  11. "State" means any state, district, territory, possession, or province of the United States or Canada and any sovereign nation or any political subdivision of such sovereign nation.

(Ga. L. 1925, p. 325, § 2; Ga. L. 1927, p. 307, §§ 21, 22; Ga. L. 1929, p. 316, § 29; Code 1933, § 84-1402; Ga. L. 1965, p. 629, § 2; Code 1933, § 84-1401, enacted by Ga. L. 1973, p. 100, § 1; Ga. L. 1974, p. 379, § 1; Ga. L. 1980, p. 1398, § 1; Ga. L. 1985, p. 360, § 1; Ga. L. 1990, p. 650, § 1; Ga. L. 1993, p. 123, § 49; Ga. L. 1995, p. 1216, § 3; Ga. L. 1996, p. 194, § 3; Ga. L. 2000, p. 1527, § 11; Ga. L. 2003, p. 370, § 7.)

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1910, § 1888 and Ga. L. 1925, p. 325; and former Code 1933, § 84-1402, as it read prior to revision of the chapter by Ga. L. 1973, p. 100, are included in the annotations for this Code section.

Legislative intent to require license of persons securing realty buyers.

- By enacting Ga. L. 1973, p. 100, § 1 (see now O.C.G.A. §§ 43-40-1,43-40-29 and43-40-30), the legislature intended to require a person to obtain a license before procuring real property purchasers in return for compensation. Berchenko v. Fulton Fed. Sav. & Loan Ass'n, 149 Ga. App. 526, 254 S.E.2d 745, aff'd, 244 Ga. 733, 261 S.E.2d 643 (1979).

Definition of "broker" who needs license for real estate sales.

- This section defined a real estate "broker" to include any person who, for a fee, assisted in procuring prospects for sale or purchase of real estate. Krizan v. Newman & Co., 246 Ga. 214, 271 S.E.2d 135 (1980).

"Broker" includes person receiving compensation for referral.

- Those who merely refer one person to another are exempted from licensure requirement; however, if a fee, commission, or other valuable consideration is promised or intended to be paid for the referral service, by definition, the referral agent is a broker and must be licensed. Berchenko v. Fulton Fed. Sav. & Loan Ass'n, 244 Ga. 733, 261 S.E.2d 643 (1979).

This section applied to one who deals "for another." Barnes v. Didschuneit, 94 Ga. App. 661, 96 S.E.2d 216 (1956).

There is no legal requirement that a real estate broker or salesperson also be a member of a board of realtors. Nixon v. Gwinnett County Bd. of Realtors, Inc., 249 Ga. 862, 295 S.E.2d 78 (1982).

Real estate includes leaseholds, as well as any other interest or estate in land, whether corporeal, incorporeal, freehold, or nonfreehold. Killingsworth v. French & Whitten Realtors, 148 Ga. App. 29, 251 S.E.2d 40 (1978).

License is necessary to sell leaseholds, however defined.

- At common law, an estate for years included right of occupancy of land of another for no matter how limited a period, whereas rule in this state now is that a lease of under five years will be presumed not to convey an estate for years unless a contrary intent appears. But all leaseholds will be presumed to be "real estate" under definition of subject matter which real estate brokers must be licensed in order to sell. Killingsworth v. French & Whitten Realtors, 148 Ga. App. 29, 251 S.E.2d 40 (1978).

Real estate work without license is unlawful.

- Ga. L. 1973, p. 100, § 1 (see now O.C.G.A. § 43-40-30) provides that any person who performs any single act, as defined in Ga. L. 1973, p. 100, § 1 (see now O.C.G.A. § 43-40-1), without being licensed shall be in violation of the law. Krizan v. Newman & Co., 246 Ga. 214, 271 S.E.2d 135 (1980).

Because Georgia's statutory scheme regulating brokers was enacted pursuant to its police power to protect the public interest, an agreement to pay a brokerage fee, entered into with an unlicensed broker, is void and unenforceable. Amend v. 485 Props., LLC, 401 F.3d 1255 (11th Cir. 2005).

Chapter does not create a legal cause of action, but conduct condemned may serve as basis for judicial action under other statutes by recognizing certain minimum standards for persons engaged in the real estate business. Kimball Bridge Rd. v. Everest Realty Corp., 141 Ga. App. 835, 234 S.E.2d 673 (1977).

Acquisition fee held not brokerage commission.

- Contractual "acquisition fee" paid in connection with the construction and sale of an apartment complex was not a "brokerage commission," when the fee was for the purpose of a pass-through on the balance sheet of the transaction. Piedmont Eng'g & Constr. Corp. v. Balcor Partners-84 II, Inc., 196 Ga. App. 486, 396 S.E.2d 279 (1990), cert. denied, 196 Ga. App. 909, 396 S.E.2d 279 (1990).

Exempt disabled veteran still must pay realtor license tax.

- Provisions of former Code 1910 and Ga. L. 1925, p. 325 (see now O.C.G.A. Ch. 40, T. 43) did not apply to state license taxes, and disabled veteran's exemption does not authorize carrying on of business of real estate broker, without complying with regulatory measures, and obtaining a license. Dixon v. Brooke, 44 Ga. App. 608, 162 S.E. 287 (1932) (decided under former Code 1910, § 1888; and Ga. L. 1925, p. 325).

Realtor must allege license in suit for commission.

- Action brought by real estate broker to recover damages for breach of alleged contract for commissions is subject to general demurrer (now motion to dismiss) when the action fails to allege that the broker has fully complied with license laws, whether the point was argued and considered in the trial court or not. Cline v. Crane, 90 Ga. App. 192, 82 S.E.2d 175 (1954).

Unlicensed agent not entitled to quantum meruit.

- When a former employee alleged that the employee was entitled to quantum meruit against the former employer for having found a buyer for the employer's property, for which the employer had orally indicated that the employer would reward the employee, but the employee failed to raise in the trial court that the employee was a referral agent who was exempt from the real estate licensing statutes pursuant to O.C.G.A. § 43-40-29(a)(9), the issue was not reviewable on appeal; thus, summary judgment under O.C.G.A. § 9-11-56(c) was granted to the employer as the employee was not licensed under O.C.G.A. §§ 43-40-1(2)(A) and43-40-30(a). The true nature of the exchange was a sale of real estate and an agreement was prohibited by the licensing statutes; accordingly, it could not be the basis of a quantum meruit claim. Everett v. Goodloe, 268 Ga. App. 536, 602 S.E.2d 284 (2004).

Real estate brokers and salespersons are "professionals" within the intent of O.C.G.A. § 9-11-9 (pleading special matters), requiring affidavits to accompany a charge of professional malpractice. Allen v. Remax N. Atlanta, Inc., 213 Ga. App. 644, 445 S.E.2d 774 (1994).

Cited in Pendley v. Jessee, 134 Ga. App. 138, 213 S.E.2d 496 (1975); Keenan Co. v. Pamlico, Inc., 152 Ga. App. 502, 263 S.E.2d 197 (1979); Northside Realty Assocs. v. MPI Corp., 245 Ga. 321, 265 S.E.2d 11 (1980); Krizan v. Newman & Co., 153 Ga. App. 337, 265 S.E.2d 68 (1980); Wanamaker v. Esther Wynne Realty Assocs., 163 Ga. App. 338, 294 S.E.2d 581 (1982); Unifund Gen., Inc. v. Orr, 191 Ga. App. 836, 383 S.E.2d 199 (1989); Roberts v. Coldwell Banker Kinard Realty, 286 Ga. App. 7, 648 S.E.2d 442 (2007).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- Some of the following annotations are taken from opinions under former Code 1933, § 84-1402, as it read prior to revision of the chapter by Ga. L. 1973, p. 100, which are included in the annotations for this Code section in light of the similarity of the statutory provisions.

Employees of property management companies who negotiate agreements must be licensed. 1977 Op. Att'y Gen. No. 77-26.

Broker's sale of own realty through brokerage company may employ only licensed salespersons.

- If broker sells personal real estate through the broker's brokerage company, or otherwise represents to prospective purchasers that the purchasers are dealing with a licensed broker, the broker may employ only licensed salespersons to make such sales on the broker's behalf. 1977 Op. Att'y Gen. No. 77-26.

Person finding buyer for free but charging loan fee needs no license.

- Person charging a fee and obtaining a loan on real estate does not fall within the statutory definition of a real estate broker or real estate salesperson; therefore, such person is not required to be licensed. 1950-51 Op. Att'y Gen. p. 149.

Person who procures a purchaser for real estate, but who does not accept any compensation therefor, does not violate law requiring all real estate dealers to first procure a license, notwithstanding fact that such person does charge a fee for services in procuring a loan incident to purchase of such property. 1952-53 Op. Att'y Gen. p. 410.

Mortgage brokerage firm, acting as "finder," and placing and forwarding loans, does not fall under the statute as to such activities, notwithstanding that such firm may be owned by licensed real estate brokers and would be subject to such law with respect to activities governed thereby. 1970 Op. Att'y Gen. No. U70-131.

Placing advertisement for sale of real estate.

- Mere running of advertisement offering for sale real estate not owned by advertiser does not violate prohibition against holding oneself out as a dealer without a license. 1948-49 Op. Att'y Gen. p. 636.

Firm dealing in realty and using word "realty" in name need not necessarily be licensed.

- An individual, firm, or corporation may use the name "realty" and may actually deal in real estate without obtaining a license from the Georgia Real Estate Commission; provided, however, such person, firm, or corporation does not for another and for a fee, commission, or other valuable consideration, sell, exchange, buy, rent, or offer or attempt to negotiate a sale, exchange, purchase, or rental of any estate or interest in real estate or collect or offer or attempt to collect rent for use of real estate. 1950-51 Op. Att'y Gen. p. 150.

Realty business operators must be brokers, even if not participating in transactions.

- Properly construed, persons operating a business for purpose of obtaining rental units for clients are required to register as real estate brokers, notwithstanding fact that such persons do not themselves participate in actual negotiation of lease contract. 1952-53 Op. Att'y Gen. p. 165.

Management firm for cooperative must be licensed.

- Corporation which is performing administrative and management services for a cooperative, which include collection of monthly rental payments, and occasional involvement in sale or transfer of membership unit from dwelling member to new member must secure a license as a real estate broker. 1970 Op. Att'y Gen. No. U70-14.

Employee who shows houses for commissions must be licensed.

- Person employed by another for purpose of showing property for sale or rent and who receives a fee, commission, or other valuable consideration for services, and who performs such services without first obtaining a license from the Georgia Real Estate Commission acts in violation of this section. 1950-51 Op. Att'y Gen. p. 149.

Cemetery corporation selling rights of interment in cemeteries is required to have a license issued to the corporation by the Georgia Real Estate Commission. 1952-53 Op. Att'y Gen. p. 409.

RESEARCH REFERENCES

Am. Jur. 2d.

- 12 Am. Jur. 2d, Brokers, § 9 et seq.

C.J.S.

- 12 C.J.S., Brokers, § 1 et seq.

ALR.

- Necessity and sufficiency of consideration for modification of real estate broker's contract, 42 A.L.R. 987.

Implied contract of employment of real estate broker to procure customer, 49 A.L.R. 933.

Who is real estate agent, salesman, or broker within meaning of statute, 56 A.L.R. 480; 167 A.L.R. 774.

Validity and construction of license tax or fee, or business privilege, or occupational tax, on persons renting or leasing out real estate, 93 A.L.R.2d 1136.

No results found for Georgia Code 43-40-1.