Management of Firm and Licensed Affiliates; Compliance With Local Ordinances

  1. Law
  2. Georgia Code
  3. Professions and Businesses
  4. Real Estate Brokers and Salespersons
  5. Management of Firm and Licensed Affiliates; Compliance With Local Ordinances

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  1. Licensees who operate from more than one place of business shall comply with all local business ordinances affecting their business operations; provided, however, that no provision of this subsection shall be construed as altering the provisions of Code Section 48-13-17.
  2. A real estate broker or qualifying broker shall be held responsible for any licensee whose license is affiliated with such broker's firm should such licensee violate any of the provisions of this chapter and its attendant rules and regulations unless the broker is able to demonstrate that such broker:
    1. Had reasonable procedures in place for supervising the affiliate's actions;
    2. Did not participate in the violation; and
    3. Did not ratify the violation.

      No provision of this subsection shall be construed as altering the provisions of Code Section 43-40-30.1.

  3. The real estate brokerage activities of each firm shall be under the direct management and supervision of a broker or qualifying broker. The broker or qualifying broker shall be responsible for establishing, implementing, and continuing procedures for:
    1. Reviewing all advertising to ensure compliance with this chapter and its rules and regulations;
    2. Providing programs for study and review of this chapter and its rules and regulations for all licensed associates;
    3. Reviewing for compliance with this chapter and its rules and regulations all listing contracts, leases, sales contracts, and management agreements to buy, sell, lease, or exchange real property and any offer to buy, sell, lease, or exchange real property accepted within the time limit of said offer secured or negotiated by the firm's associates. This review shall take place within 30 days of the date of the offer or contract;
    4. Systematic review of the firm's trust accounting practices in order to assure their compliance with this chapter and its rules and regulations;
    5. Ensuring that the firm utilizes only licensed personnel to perform those acts of a licensee which require licensure and that when it pays compensation to an individual licensee, other than another firm, the license of such individual licensee was assigned to the firm by the commission at the time such individual licensee earned the compensation paid;
    6. Ensuring that proper disbursements are made from trust accounts;
    7. Providing continuing and reasonable safekeeping for all records related to real estate transactions which this chapter and its rules and regulations require a broker to maintain;
    8. Providing all licensed personnel with written policies and procedures under which they are expected to operate;
    9. Seeing that the firm and all licensed affiliates enter into a written agreement specifying the terms under which the licensee will be compensated for work during the time of their affiliation and specifying how the licensee will be compensated for work begun but not completed prior to the termination of their affiliation. Other than to determine that such agreements are entered into by licensees and their firm, the commission shall not regulate the content of such agreements or enforce their provisions; and
    10. Assuring that an individual with appropriate management authority is reasonably available to assist licensees and the public in real estate transactions handled by the firm.
  4. While a broker or qualifying broker may elect to delegate any of the management duties cited in subsection (c) of this Code section, such broker or qualifying broker is responsible for the acts of the person to whom such duty is delegated.
  5. Any firm which operates as a sole proprietorship must be owned entirely by a licensed broker. The qualifying broker for a firm which operates as a partnership must be a partner. If all partners of a partnership are corporations, the qualifying broker of such a partnership must be one of the partner corporation's officers whose actions are binding on both that corporation and the partnership. The qualifying broker for a firm which operates as a limited partnership must be the general partner. If the general partner of a limited partnership is a corporation, the qualifying broker of such a limited partnership must be one of that corporation's officers whose actions are binding on both the corporation and the general partner. The qualifying broker for a firm which operates as a limited liability company must be a member or, if the articles of organization or a written operating agreement vests management of the limited liability company in a manager or managers, a manager may serve as the qualifying broker. The qualifying broker for a firm which operates as a corporation must be an officer of the corporation. The broker or qualifying broker of any real estate firm must have signatory powers on all trust accounts which the firm maintains.

(Code 1981, §43-40-18, enacted by Ga. L. 1993, p. 123, § 55; Ga. L. 1993, p. 1292, § 1; Ga. L. 1994, p. 1168, § 3; Ga. L. 1995, p. 1216, § 8; Ga. L. 2016, p. 516, § 1/HB 869.)

The 2016 amendment, effective July 1, 2016, substituted "and management agreements to buy, sell, lease, or exchange real property and any offer to buy, sell, lease, or exchange real property accepted within the time limit of said offer" for "management agreements, and offers to buy, sell, lease, or exchange real property" in paragraph (c)(3).

Cross references.

- Levy of license, occupation, or professional taxes by counties or municipalities upon real estate brokers at place of principal or branch office, § 48-13-6.

Law reviews.

- For note on the 1994 amendment of this Code section, see 11 Georgia St. U.L. Rev. 240 (1994).

JUDICIAL DECISIONS

Compliance does not affect ability to collect commission.

- Whether or not the plaintiff is in compliance with O.C.G.A. §§ 43-40-11 and43-40-18 has no bearing on the plaintiff's ability to collect a commission under O.C.G.A. § 43-40-24. Newman v. James M. Vardaman & Co., 162 Ga. App. 878, 293 S.E.2d 462 (1982).

Liability for independent contractor.

- Because the home buyers failed to show that a realtor knew of the drainage and flooding issues associated with the buyers' property, but instead claimed that the realtor was liable for negligence or negligent misrepresentation for failure to oversee the sales transaction and failure to oversee the listing agent because it did not comply with the requirements of O.C.G.A. § 43-40-18 and Ga. Comp. R. & Regs. 520-1-.10(4); however, the realtor was not liable for the acts of the listing agent as the listing agent was an independent contractor, and the homebuyers failed to present any evidence that the realtor assumed the right to control the time, manner, or method of the work. Walker v. Johnson, 278 Ga. App. 806, 630 S.E.2d 70 (2006), overruled on other grounds, Kleber v. City of Atlanta, 291 Ga. App. 146, 661 S.E.2d 195 (2008).

Cited in Citizens & S. Nat'l Bank v. AVCO Fin. Servs., Inc., 129 Ga. App. 605, 200 S.E.2d 309 (1973); Clark v. Georgia Real Estate Comm'n, 129 Ga. App. 741, 200 S.E.2d 926 (1973).

OPINIONS OF THE ATTORNEY GENERAL

Allowing licensed persons to be affiliated with more than one real estate firm is permitted by the laws governing real estate brokers, although certain multiple affiliations could lead to violations of the law in specific situations. 1983 Op. Att'y Gen. No. 83-26.


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