Nonresident Licensees; Service of Process; Reciprocity; Contracts With Licensed Georgia Brokers

  1. Law
  2. Georgia Code
  3. Professions and Businesses
  4. Real Estate Brokers and Salespersons
  5. Nonresident Licensees; Service of Process; Reciprocity; Contracts With Licensed Georgia Brokers

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  1. A nonresident holding a license on July 1, 1991, shall not be required to meet the requirements of this Code section in order to continue to hold a license unless such nonresident allows that license to lapse or applies for a different type of license.
  2. The commission may grant a license to a nonresident of this state who is not licensed in such nonresident's state of residence if that applicant meets the age, education, and examination requirements prescribed in Code Section 43-40-8.
  3. In order to be licensed in this state, nonresidents who are licensed in another state must meet any requirements established by the commission, which may include:
    1. Show satisfactory proof of current licensure in the applicant's state of residence;
    2. Pay any required fees;
    3. Sign a statement which states that the applicant has read this chapter and its rules and regulations and agrees to abide by its provisions in all brokerage activity in this state;
    4. Affiliate with a resident or nonresident broker if the applicant is an individual community association manager, salesperson, or associate broker. If a nonresident licensee terminates the affiliation with a broker licensed by the commission, the license of such nonresident shall automatically be terminated unless such nonresident places the license on inactive status or affiliates with another broker licensed by the commission within 30 days. No license shall be issued to any member, officer, independent contractor, employee, or partner of a nonresident firm until said firm qualifies for a broker's license. A nonresident corporation or limited liability company must obtain from the proper agency and maintain a certificate of authority to transact business in this state;
    5. Provide any documentation required by the commission of the applicant's licensure in any other state and copies of the records of any disciplinary actions taken against the applicant's license in that or other states. The imposition of a disciplinary action by any other lawful licensing authority may be grounds for denial of license to a nonresident or for suspension or revocation of a license issued to a nonresident;
    6. File with the commission a designation in writing that appoints the real estate commissioner to act as the licensee's agent, upon whom all judicial and other process or legal notices directed to such licensee may be served. Service upon the real estate commissioner shall be equivalent to personal service upon the licensee. Copies of such appointment, certified by the real estate commissioner, shall be deemed sufficient evidence thereof and shall be admitted in evidence with the same force and effect as the original thereof might be admitted. In such written designation, the licensee shall agree that any lawful process against the licensee which is served upon the real estate commissioner shall be of the same legal force and validity as if served upon the licensee, and that authority shall continue in force so long as any liability remains outstanding in this state. Upon the receipt of any such process or notice, the real estate commissioner shall immediately mail a copy of the same by certified mail or statutory overnight delivery to the last known business address of the licensee; and
    7. Agree in writing to cooperate with any investigation initiated by the commission by promptly supplying any documents any authorized investigator of the commission may request and by personally appearing at the commission's offices or other location in this state as the commission's investigator may request. If the commission sends a notice to produce documents or to appear for an interview with an authorized investigator of the commission by certified mail or statutory overnight delivery to the last known business address of a nonresident licensee and the nonresident licensee fails to comply with that request, the commission may impose on the nonresident licensee any disciplinary sanction permitted under this chapter.
  4. The commission in its discretion may enter into written agreements with similar licensing authorities of other states as may be necessitated by those states' laws to assure for Georgia licensees nonresident licensure opportunities comparable to those afforded to nonresidents by this Code section. Whenever the commission determines that another state does not offer nonresident licensure to Georgia licensees with requirements substantially comparable to those afforded to licensees of that state by this Code section, the commission shall require licensees of such state who apply for nonresident licensure to meet education, experience, and examination requirements substantially comparable to those required by that state with respect to Georgia licensees who seek nonresident licensure, not to exceed such requirements as prescribed in Code Section 43-40-8.
    1. Notwithstanding any other provision of this Code section, a licensed broker of another state may enter into a written agreement with a Georgia broker to conduct the real estate brokerage business in Georgia without first obtaining a Georgia license. The Georgia broker shall be responsible for all real estate brokerage acts performed by the out-of-state broker under such written agreement and for determining that the out-of-state broker has and maintains an active license in the out-of-state broker's state of residence. For purposes of this subsection, a "licensed broker of another state" means the licensed broker and other brokers or salespersons licensed under such broker. The Georgia broker shall maintain for at least three years after its expiration date a copy of any written agreement into which such Georgia broker enters with a licensed broker of another state. Each written agreement shall provide:
      1. For procedures to be followed in the event of the out-of-state broker's performing any of the acts of a broker on real property located in Georgia;
      2. How the brokers will divide any earned commissions;
      3. That any listing or property management agreement for Georgia real property in which the out-of-state broker will participate shall be in the name of the Georgia broker;
      4. That the out-of-state broker shall conduct negotiations with any client of a Georgia broker only with the express permission of the Georgia broker;
      5. That any advertisement by any means of Georgia real property shall identify the listing Georgia broker;
      6. That any contracts, agreements, or offers on Georgia real property shall clearly identify the Georgia broker and the out-of-state broker with the statement that the out-of-state broker is not licensed by the Georgia Real Estate Commission; that said contract, agreement, or offer shall be construed under Georgia law; and that the superior courts of this state shall have jurisdiction over any actions which may be brought against either broker as a result of such contract, agreement, or offer;
      7. That any trust funds obtained in any transaction involving any real property in Georgia by an out-of-state broker shall be held in the trust account of the Georgia broker unless agreed otherwise in writing by the party or parties having any interest in said trust funds; and
      8. Such other matters as the commission may require by rule and regulation.
    2. Notwithstanding any other provision of this Code section, the commission in its discretion may enter into written agreements with similar licensing authorities of other states to permit persons licensed in those states to conduct real estate brokerage business in Georgia without obtaining a license in Georgia, provided that such other states afford the same opportunities to Georgia licensees.
    3. Notwithstanding any other provision of this chapter, when a licensed broker of another state is acting only as a referral agent which involves only the mere referral of one person to another and such referring broker is not involved in the actual negotiations, execution of documents, collection of rent, management of property, or any other real estate brokerage activity, a licensed broker in Georgia may divide or share a real estate commission with such licensed broker in another state.
  6. Whenever an out-of-state broker operating under a written agreement permitted by subsection (e) of this Code section violates any provision of this chapter, for such violation by the out-of-state broker the commission shall be limited to suspending or revoking the Georgia broker's right to enter into such written agreements with out-of-state brokers unless the Georgia broker participated in or ratified the violation of the out-of-state broker or failed to include in such written agreement all provisions required by subsection (e) of this Code section and the commission's rules and regulations.
  7. Reserved.

(Ga. L. 1925, p. 325, § 15; Code 1933, § 84-1422; Ga. L. 1965, p. 629, § 10; Code 1933, § 84-1415, enacted by Ga. L. 1973, p. 100, § 1; Ga. L. 1980, p. 1398, § 6; Ga. L. 1985, p. 360, §§ 4, 5; Ga. L. 1987, p. 252, § 2; Ga. L. 1989, p. 1619, §§ 2, 3; Ga. L. 1990, p. 650, § 3; Ga. L. 1991, p. 642, § 2; Ga. L. 1993, p. 123, § 51; Ga. L. 1996, p. 194, §§ 5, 6; Ga. L. 1997, p. 410, §§ 1.1, 2; Ga. L. 1998, p. 196, § 3; Ga. L. 2000, p. 1527, § 13; Ga. L. 2000, p. 1589, § 3; Ga. L. 2002, p. 415, § 43; Ga. L. 2003, p. 370, § 8.)

Editor's notes.

- Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the amendment to paragraphs (c)(6) and (c)(7) are applicable with respect to notices delivered on or after July 1, 2000.

Cross references.

- Cooperation between Georgia and other states generally, T. 28, C. 6.

Law reviews.

- For article surveying developments in Georgia real property law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 219 (1981).

JUDICIAL DECISIONS

Closing in state brings contract under chapter.

- In suit brought by Iowa realtor to recover fee under letter agreement and otherwise because a sale was consummated and closed with one of the realtor's clients, when closing was an act essential to recovery and the closing occurred in Georgia, provisions of O.C.G.A. T. 43, C. 40 were applicable. Krizan v. Newman & Co., 246 Ga. 214, 271 S.E.2d 135 (1980).

When contract governed by foreign state's laws.

- When pleaded contract not only is executed in a foreign state, but contains nothing to indicate by place of performance or otherwise that the contract was intended to be construed as a Georgia contract, it will be treated as a contract of the foreign state, and governed by the foreign state's laws. Mathews v. Greiner, 130 Ga. App. 817, 204 S.E.2d 749 (1974).

Foreign land contracts enforced unless violative of enforcing state's public policy.

- Land brokerage contracts made and performed in another state will be enforced unless such state's laws are contrary to public policy of enforcing state. Mathews v. Greiner, 130 Ga. App. 817, 204 S.E.2d 749 (1974).

OPINIONS OF THE ATTORNEY GENERAL

"Brokerage business" logically consists of activities which define "broker" as listed in paragraph (2) of former Code 1933, § 84-1401 (see now O.C.G.A. § 43-40-1). 1977 Op. Att'y Gen. No. 77-1.

Nonresident broker can serve as qualifying broker for out-of-state corporation setting up office to do business in this state. 1977 Op. Att'y Gen. No. 77-1.


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