TITLE 43 PROFESSIONS AND BUSINESSES

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

ARTICLE 10 PAIN MANAGEMENT CLINIC

43-40-29. Exceptions to operation of chapter.

Except as otherwise provided, this chapter shall not apply to:
1. Any person who, as owner, as the spouse of an owner, as general partner of a limited partnership, as lessor, or as prospective purchaser or their regular employees, performs any act with reference to property owned, leased, or to be acquired by such owner, limited partnership, lessor, or prospective purchaser where such acts are performed in the regular course of, or as incident to, the management of such property and the investment therein or any person who manages residential apartment complexes under a contract approved by any federal agency for an organization which is exempt from federal taxes pursuant to Section 501(c)(3) of the Internal Revenue Code, as defined in Code Section 48-1-2, provided that such person was engaged in managing such property under such type contract prior to January 1, 1989;
2. An attorney in fact under a duly executed power of attorney to convey real estate from the owner or lessor;
3. A licensed practicing attorney acting solely as an incident to the practice of law;
4. Any person acting as receiver, trustee in bankruptcy, administrator, executor, or guardian or acting under a court order or under the authority of a will or of a trust instrument;
5. Any officer or employee of a government agency in the conduct of official duties;
6. Any person employed by a public or private utility who performs any act with reference to property owned, leased, or to be acquired by the utility employing that person, where such acts are performed in the regular course of, or as incident to, the management of such property and the investment therein;
7. Any person who, as owner or through another person engaged by such owner on a full-time basis or as owner of a management company whose principals hold a controlling ownership of such property, provides property management services or community association management services, buys, sells, leases, manages, auctions, or otherwise deals with property owned by such person;
8. Any person employed on a full-time basis by the owner of property for the purpose of providing property management services or community association management services, selling, buying, leasing, managing, auctioning, or otherwise dealing with such property;
  (8.1) Any person employed on a full-time basis by a community association for the purpose of providing community association management services;
9. Any person acting as a referral agent who is not involved in the actual negotiations, execution of documents, collection of rent, management of property, or other related activity which involves more than the mere referral of one person to another and who:
  1. Does not receive a fee for such referral from the party being referred;
  2. Does not charge an advance fee; and
  3. Does not act as a referral agent in more than three transactions per year;
10. Any individual employed by a broker to assist in property management services on property on which the broker has a written management agreement that the broker procured from and negotiated with the owner, provided that such individual's activities are explicitly authorized by the broker in a written agreement between the broker and the employee and provided that such activities are limited to one or more of the following:
  1. Delivering a lease application, a lease, or any amendment thereto to any person;
  2. Receiving a lease application, a lease, or any amendment thereto, a security deposit, rental payment, or any related payment for delivery to and made payable to the broker or the owner;
  3. Showing a rental unit to any person, provided that the employee is acting under the direct instructions of the broker, and executing leases or rental agreements;
  4. Providing information authorized by the broker about a rental unit, a lease application, or a lease;
  5. Providing information to a tenant about the status of such tenant's security deposit or rent payments or to an owner about the owner's financial accounts and payments from the owner's tenants; and
  6. Performing any ministerial acts that are explicitly authorized by the broker in a written agreement between the broker and the employee.
    Any broker utilizing the services of such an employee shall be held responsible under this chapter for the activities of that individual;
11. Any person who provides property management services on properties available for less than 90 days' occupancy by guests or occupants and meets all of the following conditions:
  1. The property manager enters into a written agreement with the owner specifying all terms and conditions under which the property is to be managed, the reporting of income and expenses, and the remitting of income to the owner;
  2. The management agreement between the property manager and the owner does not allow the property manager to rent or lease the property and any agreement between the property manager and the guest or occupant is not a lease or rental agreement;
  3. Any applicable zoning laws do not prohibit short-term occupancy uses of the property;
  4. The guest's or occupant's occupancy is for less than 90 days;
  5. No deposit exceeds the cost of the rental required for the minimum rental period;
  6. The guest or occupant pays any required state or local sales taxes or excise taxes on rooms, lodgings, and accommodations and the property manager has any required state or local business licenses or permits;
  7. The property manager has the authority to specify rooms or units that the guest or occupant will occupy;
  8. No extra charge is made for basic utilities;
  9. Notice is not required for a guest or occupant to terminate occupancy of the room or unit, except as provided under the provisions of Article 1 of Chapter 21 of this title; and
  10. The room or unit is not the permanent residence of the guest or occupant;
12. Any person who is a member of a community association and who provides community association management services only to one community association of which such person is a member;
13. Any person who performs only physical maintenance on a property; or
14. A licensed certified public accountant acting solely as an incident to the practice of public accounting.
The exceptions provided by subsection (a) of this Code section shall not apply to any person, other than an owner or individuals who are full-time employees of the owner, who performs the acts of a broker on property required to be registered under Article 1, 2, or 5 of Chapter 3 of Title 44.
The exceptions provided by subsection (a) of this Code section shall not apply to any person who holds a real estate license.
The exceptions in subsection (a) of this Code section are not applicable to a person who uses or attempts to use them for the purpose of evading licensure required by this chapter.

(Ga. L. 1925, p. 325, § 2; Code 1933, § 84-1403; Ga. L. 1965, p. 629, § 3; Ga. L. 1973, p. 100, § 1; Ga. L. 1980, p. 1398, § 2; Ga. L. 1982, p. 3, § 43; Ga. L. 1985, p. 360, § 18; Ga. L. 1986, p. 364, §§ 14, 15; Ga. L. 1989, p. 1619, § 9; Ga. L. 1995, p. 1216, § 9; Ga. L. 1996, p. 194, § 13; Ga. L. 2003, p. 370, § 18; Ga. L. 2005, p. 1030, § 12/SB 55.)

Law reviews.

- For annual survey on law of real property, see 43 Mercer L. Rev. 353 (1991). For annual survey article on real property law, see 52 Mercer L. Rev. 383 (2000).

JUDICIAL DECISIONS

Legislative intent to require license of one procuring purchasers of property for compensation.

- By enacting former Code 1933, §§ 84-1426, 84-1402 and 84-1403 (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).

Legislature intended to exempt owner regardless of any encumbrance upon the owner's land from any provisions of law applicable to brokers and salespeople of real estate. Gray v. Georgia Real Estate Comm'n, 209 Ga. 301, 71 S.E.2d 645 (1952).

Commission has no power to require owners of land to procure licenses before selling land, or to otherwise interfere with complete freedom of such owners in sale of the owners' own land. Gray v. Georgia Real Estate Comm'n, 209 Ga. 301, 71 S.E.2d 645 (1952).

Referrals for compensation are not exempt.

- Those who merely refer one person to another are exempted from the 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).

Plaintiff suing as broker not exempt under

§ 43-40-29(a)(1) or (a)(7), even though co-owner. - Phrase "as owner" in this section was construed to mean in capacity as owner. When the plaintiffs were suing in the plaintiffs' capacities as brokers, even though the plaintiffs were also incidentally co-owners, these exclusions did not apply. Pendley v. Jessee, 134 Ga. App. 138, 213 S.E.2d 496 (1975).

Broker-joint owner, acting as broker for co-owners, may sue for commission from co-owners.

- Mere absence of specific statutory provision for situations of joint owners acting as brokers does not warrant conclusion that such owners are not entitled to act as brokers for their co-owners and to enforce their contractual right to broker's commissions. Pendley v. Jessee, 134 Ga. App. 138, 213 S.E.2d 496 (1975).

Exemption not raised in trial court.

- 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).

Person suing as qualified for the exception under O.C.G.A. § 43-40-29(a)(8) was not entitled to compensation since the person's claim was based wholly on an expectation of a commission for providing real estate brokerage services. Johnson v. Oriental Weavers Rug Mfg. Co., 241 Ga. App. 15, 525 S.E.2d 738 (1999).

Apartment management firm exempt from licensing requirements.

- Apartment management firm which was employed directly or indirectly by the owner of the property to perform daily management duties was excepted under O.C.G.A. § 43-40-29(a)(8) from the licensing requirements of O.C.G.A. T. 43, C. 40. 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).

Statutory exception to licensure requirement for referral fee.

- In the plaintiff's suit in connection with referral services the plaintiff provided to the defendant in a real estate transaction, the defendant's motion for summary judgment was properly denied as the real estate licensure requirement did not bar the plaintiff from bringing an action to recover commissions or compensation for the referral services because the plaintiff's actions permitted the plaintiff to recover a referral fee under an exception as the defendant expressly offered the plaintiff a referral fee if the plaintiff located a bona fide buyer; the plaintiff located a bona fide buyer; the buyer closed on the sale; and the plaintiff did not receive a referral fee from the party being referred or charge an advance fee. Oconee Inv. Group, LLC v. Turk, 344 Ga. App. 31, 807 S.E.2d 512 (2017).

Cited in Newborn v. Trust Co. Bank, 148 Ga. App. 70, 251 S.E.2d 45 (1978); Krizan v. Newman & Co., 153 Ga. App. 337, 265 S.E.2d 68 (1980).

OPINIONS OF THE ATTORNEY GENERAL

Brokers and salespeople as owners not exempt.

- This section did not except from statutory provisions brokers or salespeople when dealing with their own property. 1976 Op. Att'y Gen. No. 76-101.

Employees selling broker's property must be licensed.

- If a broker sells personal real estate through a 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.

Employees negotiating agreements for property management company must be licensed. 1977 Op. Att'y Gen. No. 77-26.

General partner of limited partnership who manages partnership property.

- Even though the general partner in a limited partnership need not be licensed to manage the property owned by the limited partnership, if licensed, the general partner must account for funds and management responsibilities as all other licenses. 1984 Op. Att'y Gen. No. 84-80.

To the extent the general partner in a limited partnership manages the property owned by the partnership full time and receives no separate fee, commission, or salary for the brokerage aspects of this management, it would appear that the general partner is excepted from the licensure and regulatory requirements under O.C.G.A. § 43-40-29(a)(7), but if the general partner also managed the property of others, that exception would not apply and that person would be required to be licensed by the commission. 1984 Op. Att'y Gen. No. 84-80.

Dual employment.

- Exceptions to licensure for employees do not contemplate dual employment since the exceptions reference "regular" or "full-time" employment. 1984 Op. Att'y Gen. No. 84-80.

When unlicensed firm may use word "realty" in name.

- 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 that 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 the use of real estate. 1950-51 Op. Att'y Gen. p. 150.

RESEARCH REFERENCES

ALR.

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

Application and effect of statute relating to real estate brokers as regards broker from out of state, 86 A.L.R. 640; 159 A.L.R. 274.

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

Single or isolated transactions as falling within provisions of commercial or occupational licensing requirements, 93 A.L.R.2d 90.

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