Skip to Page Content
Delaware.gov  |  Text OnlyGovernor | General Assembly | Courts | Elected Officials | State Agencies
 Photo: Featured Delaware Photo
 
 
 Phone Numbers Mobile Help Size Print Email

Delaware General AssemblyDelaware RegulationsMonthly Register of RegulationsApril 2015

Table of Contents Previous Next

Authenticated PDF Version

24 DE Admin. Code 2900
After due notice in the Delaware Register of Regulations and two Delaware newspapers, a public hearing was held on January 15, 2015 at a scheduled meeting of the Delaware Real Estate Commission (“the Commission”) to receive comments regarding proposed amendments to the Commission’s Rules and Regulations. The Commission proposed a new Rule 1.4.1 and revisions to Rule 8.0 which are designed to implement and clarify the auctioneer exemption set forth in 24 Del.C. §2901(e)(4). A new Rule 8.5.5.6 is added to provide advertising requirements for on-site unlicensed salespeople. Finally, Rule 13.0 is amended to clarify the continuing education pro-ration requirements.
Pursuant to the Administrative Procedure Act, 29 Del.C. §10115, notice of the proposed amendments to the Rules and Regulations was published on December 1, 2014 in the Delaware Register of Regulations, Volume 18, Issue 6. Pursuant to 29 Del.C. §10118(a), the date to receive final written comments was January 30, 2015, 15 days following the public hearing. The Commission deliberated on the proposed revisions at its regularly scheduled meeting on February 12, 2015.
Exhibit 1: News Journal Affidavit of Publication.
Exhibit 2: Delaware State News Affidavit of Publication.
Exhibit 3: December 30, 2014 letter from David S. Swayze, Esquire and Elio Battista, Jr., Esquire, submitted on behalf of the Delaware Auctioneers Association, opposing the rule revisions concerning auctioneers. Specifically, counsel for the Auctioneers Association asserted that the Commission lacked statutory authority to adopt these proposed rules.
Exhibit 4: January 15, 2015 letter from Rob Harmon, President of the Delaware Association of Realtors, requesting that the Commission close a “loophole” in the regulations and prohibit the unlicensed sale of real property by auctioneers, as 48 other states have done.
Exhibit 5: Written documentation from Christopher J. Whitfield, former member and Chairperson of the Commission, urging the Commission to adopt the proposed rule changes pertaining to auctioneers to clarify that the exemption extends to the business of crying sales and that a blanket exemption is dangerous for the public.
Exhibit 1 (2/12/15): January 27, 2015 email from Andrew Taylor, Esquire listing points in support of Rule 1.4 revisions pertaining to auctioneers and attachments consisting of HB 438 from 1990 pertaining to the statutory auctioneer exemption and an Attorney General opinion from 1978 concerning the statutory exemption for attorneys.
Exhibit 2 (2/12/15): Written comments and questions from Michele Twilley objecting to the proposed rule revisions pertaining to auctioneers and stating in particular that the auctioneer exemption is clear as written and does not require clarification.
Exhibit 3 (2/12/15): January 27, 2015 letter from Michael Dunning, President of the New Castle County Board of Realtors voicing support for the proposed rules pertaining to auctioneers, stating in particular that auctioneers use a “perceived loophole” to negotiate sales of real property “after the gavel has dropped.”
Review of the language in the exemption shows that it is not a blanket exemption. In fact, the exemption is limited by explicit incorporation of the statutory definition of “auctioneer” in Section 2301(a)(3) of Title 30. The auctioneer exemption, set forth in 29 Del.C. §2901(e)(4) provides as follows:
(3) Auctioneer, $75. "Auctioneer" includes every person engaged in the business of crying sales of real or personal property on behalf of other persons for profit, except as otherwise provided by the provisions of this chapter.
It is meaningful that the legislature limited the auctioneer exemption to the “business of crying sales” by explicit incorporation of the definition of “auctioneer” from 30 Del.C. §2301(a)(3). This language makes it clear that the exemption is not an unambiguous, blanket exemption. Rather, the exemption is unambiguously limited to the “crying of sales.”
1.4.1.1 For the purpose of the Auctioneer exemption set forth in 24 Del. C. § 2901(e)(4), the “business of crying sales of real or personal property” shall mean the public event or sale occurring on an advertised date, when an auctioneer engages in the act of crying or calling for, the recognition of, and the acceptance of bids where the sale price of the property offered is determined by the increasing of competitive bids until the highest accepted bidder becomes the purchaser. The exemption shall only apply to the day of the auction.
The issue presented in Rule 1.4.1.1 is whether an auctioneer needs a real estate license if he or she conducts negotiations after the auction. The last sentence of proposed Rule 1.4.1.1 states that the auctioneer exemption “shall only apply to the day of auction.” The Commission found that this provision served to protect the public while permitting the auctioneer the opportunity to complete the transaction by the end of the day. In support of this conclusion, the Commissioners discussed that public perception is that the auction encompasses the actual day of the auction. Once the highest bidder is selected, the auction is over. If the auctioneer is permitted to negotiate with other bidders after the actual auction, the auctioneer will be practicing real estate without a license. Requiring licensure for the practice of real estate ensures accountability pursuant to the jurisdiction of the Commission. Thirty-seven states require an auctioneer to have either a real estate license or broker affiliation. The proposed rule will put Delaware in line with the majority of other states. The Commission agreed that the “day of auction” would conclude at midnight and that the auctioneer exemption shall only encompass acceptance of the highest bid. The “day of auction” language will permit the auctioneer and purchaser to wrap up the details of the transaction by the end of the day. Further, Rule 1.4.1.1.1 explicitly permits an auctioneer to advertise the auction prior to the date of the auction.
1.4.1.2 Notwithstanding the Auctioneer exemption set forth in 24 Del.C. §2901(e)(4), a Licensee acting or providing service under this exemption, may be subject to discipline for violation of 24 Del.C. §2912.
The intent of this Rule is to clarify the language in 24 Del.C. §2912(e) to the effect that a licensee acting as an auctioneer is still a real estate licensee and is subject to the range of disciplinary sanctions available under Section 2912.
1.4.1.3 An Auctioneer actively engaged by written agreement with an owner of real property to sell real property at auction may enter into a written cooperation agreement with a licensed Broker to cooperate in selling the property pursuant to the terms of a written Listing Agreement between the Broker and the property owner. In the event the property is sold by the broker, either before or after the auction date, the Auctioneer may be paid compensation from the sale of the property according to the terms of the written cooperation agreement, where an Auctioneer is actively engaged by written agreement with an owner of real property to sell real property at auction.
DELAWARE REAL ESTATE COMMISSION
1.1 Authority [24 Del.C. §2906(a)(1)]
1.1.1 Pursuant to 24 Del.C. §2906(a)(1), the Delaware Real Estate Commission is authorized and empowered and hereby adopts these Rules and Regulations.
1.1.2 Pursuant to the Administrative Procedure Act, 29 Del.C. Ch. 101, the Commission reserves the right to make any amendments, modifications or additions to the Rules and Regulations that, in its discretion, are necessary or desirable.
1.3 Broker's Responsibilities [24 Del.C. §§2902(a)(2), 2902(a)(11), 2919(d)]
1.3.5 The failure of any Licensee to comply with the provisions of 24 Del.C. Ch. 29 and the Commission's Rules and Regulations may also result in disciplinary action against his or her Broker's license.
1.4 Exemptions [24 Del.C. §2901(e)(4)]
1.4.1 Pursuant 24 Del.C. §2901(e)(4), Auctioneers are exempt from the Commission's licensing law, as the term "Auctioneer" is defined in 30 Del.C. §2301(a)(3): "every person engaged in the business of crying sales of real or personal property on behalf of others for profit."
1.4.1.1 For the purpose of the Auctioneer exemption set forth in 24 Del.C. §2901(e)(4), the "business of crying sales of real or personal property" shall mean the public event or sale occurring on an advertised date, when an auctioneer engages in the act of crying or calling for, the recognition of, and the acceptance of bids where the sale price of the property offered is determined by the increasing of competitive bids until the highest accepted bidder becomes the purchaser. The exemption shall only apply to the day of the auction.
1.4.1.2 Notwithstanding the Auctioneer exemption set forth in 24 Del.C. §2901(e)(4), a Licensee acting or providing service under this exemption, may be subject to discipline for violation of 24 Del.C. §2912.
1.4.1.3 [An Auctioneer actively engaged by written agreement with an owner of real property to sell real property at auction may enter into a written cooperation agreement with a licensed Broker to cooperate in selling the property pursuant to the terms of a written Listing Agreement between the Broker and the property owner.] In the event the property is sold by the broker, either before or after the auction date, the Auctioneer may be paid compensation from the sale of the property according to the terms of the written cooperation agreement[, where an Auctioneer is actively engaged by written agreement with an owner of real property to sell real property at auction].
3.5 Applications shall include the applicable fees as described in 24 Del.C. §2907(g) as a financial prerequisite for licensure.
5.2 In addition to meeting the requirements set forth in 29 Del.C. §2909(b), a Salesperson applicant who is seeking licensure pursuant to §2909(b)(1) shall provide a list of at least twenty sale or lease transactions completed by the applicant in a licensed capacity within the 3 years immediately preceding application. Upon approval of the Commission, the twenty transactions may include real estate services performed for an employer, while licensed, during the 3 years immediately preceding application. If the applicant, as a designated agent or team leader, has directly supervised licensees who completed the transactions, then the transactions completed by those supervised licensees may be a part of this list. The list of transactions shall be signed by the Broker(s) who supervised the transactions.
5.3 In addition to meeting the requirements set forth in 29 Del.C. §2909(c), an Associate Broker applicant shall provide a list of at least thirty sale or lease transactions completed by the applicant in a licensed capacity within the 5 years immediately preceding application. Upon approval of the Commission, the thirty transactions may include real estate services performed for an employer, while licensed, during the 5 years immediately preceding application. If the applicant, as a designated agent or team leader, has directly supervised licensees who completed the transactions, then the transactions completed by those supervised licensees may be a part of this list. The list of transactions shall be signed by the Broker(s) who supervised the transactions.
5.4 In addition to meeting the requirements set forth in 29 Del.C. §2909(d), a Broker applicant shall also meet the requirements of Rules 4.3 and 5.3.
6.0 Escrow Accounts [24 Del.C. §2923]
8.2 Buyer Agency Agreements [24 Del.C. §2930(a)]
8.34 Copy of agreements
8.34.1 Every party to a listing agreement, agreement of sale, written buyer agency agreement, cooperation agreement between a Broker and Auctioneer or lease shall be furnished with an executed copy of such agreement or agreements. It shall be the responsibility of the Licensee to deliver an executed copy of the agreements to the principals within a reasonable length of time after execution.
8.45 Advertising [24 Del.C. §§2906(a)(1), 2912(a)]
8.45.1 The purpose of the advertising rules is to protect the general public and to prohibit misrepresentation and false, misleading, untrue or deceptive advertising practices by Licensees.
8.45.2 "Advertise" or "advertising" shall mean a Licensee's use of Internet electronic communication, print, or other media, business cards, signs and billboards to publish information to promote a Real Estate Services provider or the sale or lease of real estate. Internet electronic communication shall include, but is not limited to, websites, social networks, e-mail, e-mail discussion groups and bulletin boards.
8.45.3 A Licensee who violates the advertising rules may be in violation of one or more of the provisions set forth in 24 Del.C. §2912(a) and subject to the disciplinary sanctions set forth in 24 Del.C. §2914.
8.45.4 A Licensee shall not knowingly use, publish or disseminate misrepresentations or any false, misleading, untrue or deceptive advertising in any manner.
8.45.5 Disclosure
8.45.5.1 Any Licensee who advertises real property personally owned or real property in which the Licensee has any ownership interest shall include in the advertisement that he or she is the owner of said property, and that he or she is a real estate licensee. This Rule does not apply to signs.
8.45.5.2 Any Licensee who advertises an offer to purchase real property shall include in the advertisement that he or she is a real estate Licensee.
8.45.5.3 Any Licensee who advertises any real property for sale, lease, exchange, or transfer that is listed with a Broker shall include in legible print in the advertisement the complete Brokerage Organization name that has been registered with the Commission, and Brokerage Organization phone number registered by the Broker with the Commission for that office location. Nothing contained herein shall preclude the listing of additional licensee names and/or team names or phone numbers. All such advertising shall also contain language or abbreviations that clearly identify each phone number listed; examples include, but are not limited to: "Office"; "Home"; "Res."; and "Cell".
8.45.5.4 All advertisements for personal promotion of Licensees shall include the complete Brokerage Organization name that has been registered with the Commission, and office phone number registered by the Broker with the Commission for that office location.
8.45.5.5 In the case of Internet electronic communication, the disclosures required in Rule 8.45.5.3 shall be included in every viewable page or message and may be made by link to a full disclosure. In addition, the disclosures shall include the city and state in which the Broker's main office is located and the Broker's jurisdiction of licensure.
8.5.5.6 A Licensee advertising for sale for an exempted party under 24 Del.C. §2901, where an unlicensed salesperson conducts on-site sales, shall disclose in any advertising that: "On-site unlicensed salespeople represent the seller only."
8.45.6 The publisher of advertising provided by a Licensee pursuant to agreement between the publisher and the licensee is not subject to discipline under these Rules.
8.56 Office Permits [24 Del.C. §2919]
8.56.1 For each office location, the Broker shall submit an application and applicable fee. The application shall include a telephone number, and, as applicable, a fax number, e-mail address and web address.
8.56.2 At each office location, the Broker shall place, in a conspicuous location, a permanent sign indicating the name under which the office is registered with the Commission.
8.56.3 Prior to commencing business, an office located in a private home shall be approved by the Commission and have a separate entrance.
8.56.4 Licensees may interact by electronic means with other licensees or members of the public from places other than an approved office location.
8.56.5 Brokerage Organizations may share facilities approved by the Commission with other businesses, such as insurance, banking, Auctioneers or others that the Commission shall deem compatible.
8.67 Compensation and Inducements [24 Del.C. §2930]
8.67.1 Licensees cannot use commissions or income received from commissions as rebates or compensation paid to or given to non-licensed persons, partnerships or corporations as inducements to do or secure business, or as a finder's fee, unless those fees are paid pursuant to a written cooperation or affiliation agreement signed by all parties as permitted under this Chapter.
8.67.2 This Rule does not prohibit a Licensee from giving a rebate or discount or any other thing of value directly to the purchaser or seller of real estate.
8.67.3 A Licensee has an affirmative obligation to make timely disclosure, in writing, to his or her principal of any rebate or discount that may be made to the other party.
8.67.4 Licensees shall not accept compensation from more than one party to a transaction, even if permitted by law, without timely disclosure to all parties to the transaction.
8.67.5 When acting as agent, a Licensee shall not accept any commission, rebate, or profit on expenditures made for his or her principal without the principal's knowledge and informed consent.
8.67.6 A Licensee may pay a referral fee to a person licensed as a real estate broker in another jurisdiction.
8.67.7 A licensed salesperson or broker from another jurisdiction may represent a client in a transaction involving a Delaware property if the licensee affiliates with a Delaware Licensee, provided that one of the following requirements is met:
8.67.7.1 For 1-4 family residential property, all of the showings and negotiations are performed by the Delaware Licensee, with the licensee from another jurisdiction participating in discussions with the client as the client requests, in writing, with terms of compensation, if any, in writing; or
8.67.7.2 For property that is not predominantly 1-4 family residential, the licensee from another jurisdiction affiliates with a Delaware Licensee and agrees, in writing, as to the responsibilities of each broker and agrees, in writing, as to the terms of compensation, if any.
9.8 Radon Disclosure [6 Del.C. §2572A]
10.0 Open Houses [24 Del. C. §2901(a)]
13.0 Continuing Education [24 Del.C. §§2909(a)(7), 2910(d)]
13.1.2 New Salesperson Licensees, other than new Salesperson Licensees previously licensed in another state, shall complete the following twelve (12) hours of CE during the first twelve months of licensure. These twelve (12) hours of CE will be applied to the total amount of required CE hours pursuant to the pro-ration schedule in Rule 13.2:
13.2.1 For new Salesperson Licensees, other than new Salesperson Licensees previously licensed in another state:
13.2.1.2 Six (6) hours of continuing education are required after at least six months but less than twelve months of licensure. The required six hours shall consist of two different modules, as set forth in Rule 13.1.1.
13.2.1.4 Eighteen (18) hours of continuing education are required after at least eighteen months but less than twenty-four months of licensure. The required eighteen hours shall include the twelve (12) hours of continuing education set forth in Rule 13.1.2 and two of the following modules: Modules 1, 5, or 6.
13.2.23 For persons who have successfully completed the either the broker or salesperson pre-licensing course but who have not yet made application:
13.2.23.1 Twelve (12) hours of continuing education are required more than twelve months but less than eighteen months after course completion. The required twelve hours shall consist of four different modules, as set forth in Rule 13.1.1.
13.2.23.2 Twenty-one (21) hours of continuing education are required more than eighteen months but less than twenty-four months after course completion, in compliance with the requirements of Rule 13.1.1.
13.2.23.3 For more than eighteen twenty-four months after course completion, twenty-one (21) hours of CE are required for each biennial renewal period, in compliance with the requirements of Rule 13.1.1.
15.1.42 Theft. 11 Del.C. §841
15.1.98 Profiteering. 11 Del.C. §1212
15.1.140 Drug paraphernalia; felony. 16 Del.C. §4771 (b) and (c) [manufacture and sale, delivery to a minor]
Last Updated: December 31 1969 19:00:00.
site map   |   about this site   |    contact us   |    translate   |    delaware.gov