New Mexico Register / Volume XXXI,
Issue 17 / September 15, 2020
NOTICE OF SPECIAL MEETING AND RULE HEARING
The
New Mexico Real Estate Commission (NMREC) will hold a special meeting and public
hearing on proposed amendments to the Real Estate Commission Rules on Tuesday,
October 20, 2020, at 9 a.m. Interested
parties may participate in the public hearing through live/streaming.
The
Rule Hearing Agenda will be available on the NMREC website at least 10 days
prior to the hearing date at:
http://www.rld.state.nm.us/boards/Real_Estate_Commission_Members_and_Meetings.aspx. Those wishing to participate may do so virtually
through live streaming, and may register in advance of the rule hearing by
clicking on the following Zoom link:
When: Oct 20, 2020 09:00 AM
Mountain Time (US and Canada)
Register
in advance for this meeting:
https://us02web.zoom.us/meeting/register/tZUsceqopjwtG9cVipl6j5yCdWwWbZ95WI4T
After
registering, registrants will receive a confirmation email containing
information about joining the meeting.
The Zoom link is sponsored by the Greater Albuquerque Association of
Realtors (GAAR). For questions regarding
live stream access, contact Nate Brooks at nbrooks@gaar.com or Gabe Baca at
gabe@gaar.com, or by calling GAAR at (505) 842-1433.
Following
the publication of this Notice of Rule Hearing in the New Mexico Register on
September 15, 2020, the full text of the proposed rule changes are available on
the New Mexico Real Estate Commission web site at:
http://www.rld.state.nm.us/boards/Real_Estate_Commission_Members_and_Meetings.aspx,
or you may contact Thomas P. Baca, NMREC Education Administrator, at
thomas.baca@state.nm.us. Beginning on
September 15, 2020, written comments on the proposed rules will be accepted by
the Commission up to the commencement of the Rule Hearing on October 20, 2020
at 9:00 a.m. Written comments will be
posted on the Commission’s website listed above. Oral comments will be accepted during the
rule hearing. Written comments should be
provided by email to Thomas Baca, Education Administrator, at
Thomas.baca@state.nm.us
The
NMREC will be considering and receiving public comments on proposed amendments
to the following rules recommended by the Commission acting as a Rules Task
Force.
16.61.1.7 NMAC,
GENERAL PROVISIONS: Definitions: The amendment would further add, define,
expand and clarify the following 13 definitions:
(1) Agent at C. of
16.61.1.7 NMAC: This amendment adds
language that differentiates between residential and commercial property
management applications of when a broker is considered an “agent” with respect
to clients and customers. Purpose: The purpose of the amendment is to clarify
the differences between residential and commercial property management
relationships to customers and clients.
(2) Approved
education course
at D. of 16.61.1.7 NMAC: The amendment
eliminates the education category of courses offered. Purpose: The elimination of this definition allows for
the creation of the non-core elective category of courses that is a combination
of education and training courses that are non core elective courses.
(3) Approved
training Course
at E. of 16.61.1.7 NMAC: The amendment
eliminates the training category of courses offered. Purpose: The elimination of this definition allows for
the creation of the non-core elective category of courses that is a combination
of education and training courses that are non-core elective courses.
(4) Core
Elective Course
at P. of 16.61.1.7 NMAC: The amendment
clarifies the definition of core elective as having a focus on important
topical subjects as key to the practice of real estate. Purpose: The amended definition allows for a clearer
set of subject matter and topical parameters necessary in order to determine
that a course is in this more important category.
(5) Custodial
Trust Account
at R. of 16.61.1.7 NMAC: This strikes
the word “trust” in the definition leaving it titled Custodial Accounts. Purpose: The amended definition clarifies the
qualifying broker’s custodial and controlling responsibility with respect to
these accounts.
(6) Exclusive Agency at AA. Of 16.61.1.7
NMAC: This amendment adds clarifying
language differentiating between applications of agency to commercial as
opposed to residential property management situations. Purpose: The purpose of the amendment is to clarify
applications of agency to the two modes of property management (i.e. commercial
property management, and residential property management).
(7) In house
transaction at
HH. Of 16.61.1.7 NMAC: This amendment
further clarifies that one brokerage may facilitate both sides of an individual
transaction. Purpose: The purpose of this amendment is to clarify
the meaning of a transaction handled by one brokerage.
(8) Military service member at JJ. Of
16.61.1.7 NMAC: This amendment adds
dependent children into the definition of military service member. Purpose: The purpose is to bring the definition into
conformity with HB30 in the 2020 Legislative session of the New Mexico
Legislature which amended the definition to include dependents of the service
member.
(9) Non-core elective course. This is a new definition. The amendment combines courses categorized as
training and education that are not core electives or ethics courses. Purpose: This amendment allows for a removal of the 10
CEU cap on training courses especially those training courses that are a part
of specialty certification and designation and combines valuable courses that
are not considered core electives.
(10) Property management at QQ of 16.61.1.7
NMAC: The amendment expands the
definition to include activities of owner associations managed by licensed real
estate brokers. Purpose: The purpose of the
amendment is to clarify that the definition of property management as defined
in Paragraph QQ of 16.61.1 NMAC includes owner associations managed by licensed
brokers.
(11) Property
manager
at SS of 16.61.1.7 NMAC. The amendment
would expand the definition of property manager to include brokers who manage
homeowner associations and further define the difference between residential
property managers and commercial property managers. Purpose: The purpose of the amendment is to clarify
and differentiate the duties owed by residential property managers and
commercial property managers.
(12) Residential
real estate at XX. Of 16.61.1.7
NMAC: This is a new definition defines
the parameters for considering properties based upon zoning by authorities primarily
for residential use as opposed to multifamily and commercial properties. Purpose: This new definition clarifies what is
considered residential within a zoning context.
(13) Transaction coordinator at CCC. Of
16.61.1.7 NMAC: This definition clarifies
that transaction coordinators may be subject to licensure if they engage in
activities requiring such by law. Purpose: This amendment emphasizes that licensure may
be required if transaction coordinators engage in the specific activities
defined by law as requiring licensure.
16.61.3 NMAC
REAL ESTATE BROKER’S LICENSE:
EXAMINATION AND LICENSING APPLICATION REQUIREMENTS: Sections 9 through 12, New legislatively mandated considerations
for military service members and veterans.
The amendment adds new considerations toward licensure for those
considered military service members, their spouses, their direct dependents and
Veterans. A new consideration for this
category of applicants is an exemption from the initial license fee of $270 for
their first term of licensure. The
commission must issue a license provided the candidate in this category meets
all prelicensure requirements within 60 days.
Purpose: Recent changes in New Mexico law require
additional license benefits and considerations for those who meet the new
definition of military service member to include spouses and dependents, and to
veterans. This amendment incorporates
those legislative changes and considerations into the rule.
16.61.3 NMAC
REAL ESTATE BROKER’S LICENSE:
EXAMINATION AND LICENSING APPLICATION REQUIREMENTS: Section
13 Qualifying broker refresher course: This amendment would award six
continuing education credits for taking the qualifying broker refresher
course. The amendment incorporates the
six hours earned as a part of the cumulative continuing education credits
required for qualifying brokers to renew their license, and increases the 36
qualifying broker cumulative continuing education hours to 42 hours per cycle.
Purpose: The purpose of this amendment is to acknowledge
the continuing education value of the qualifying broker refresher course. The cumulative education requirement for
qualifying brokers that includes this course is 42 hours and not 36 as the
course was taken above and beyond the current stated 36 hour cumulative renewal
requirement. The awarding of continuing
education credits makes it possible for this course to be taken by associate
brokers as part of their 36 hour continuing education requirements.
16.61.7 NMAC FINGERPRINTING AND
ARREST RECORD CHECKS: Section 8. Requirements. The amendment strikes the requirement for
fingerprinting for renewal applications based upon a change in New Mexico law
that went into effect on July 1, 2020.
Fingerprinting will continue to be required for new applications. The amendment clarifies that background
checks will continue to be done for all applications.
Purpose: The amendment incorporates the new
legislative mandate exempting fingerprinting for renewal application
submittals.
16.61.11 NMAC LICENSE EXPIRATION AND
RENEWAL: Section
8. Requirements.
The amendment codifies Section 61-29-8 NMSA 1978, into the rules and
incorporates statutory language concerning certain penalty fee exemptions in
place but that have not been mirrored in the rule. Based upon the statutory provision, the
amendment to the rule would allow an exemption from paying a late renewal fee
if a broker by reason of active duty military service, illness or injury, and
may make application for a license renewal/reinstatement without the late
penalty if the application is submitted within the one-year period after
license expiration. The amendment adds a
provision that background checks will be conducted on all renewal
applications. The amendment reformats
requirements detailed in the current rule.
Purpose: The purpose of the amendment is to mirror
existing statutory provisions in exempting brokers from late fee renewal
penalties per Section 61-29-8 NMSA 1978 and expand the exemption to include caregiving.
16.61.13 NMAC CONTINUING EDUCATION REQUIREMENTS: Section 8. Requirements.
The amendments to Section 8:
(1)
expands qualifying broker minimum renewal hours to be
42 as the minimum number of continuing education now would include the qualifying
broker refresher course which would award six credits as opposed to no
credits. The associate broker 36 minimum
hours remains the same;
(2)
removes references to training category courses and
education category courses exchanging for them the core elective category
course and non-core elective category course;
(3)
removes reference to the pre-2017 eight-hour mandatory
course requirement that was repealed after the 2017 rule change implementing
the annual core course requirement in its place;
(4)
confirms the penalty for failure to complete any one of the annual core courses
required in a three-year cycle as the 30 classroom hour broker basics course
for no continuing education credits; and removes reference to the previous
penalty;
(5)
establishes a new provision that allows relief for brokers who missed an annual
core course because of medical incapacity or medical related impairment to
complete the most recent iteration of an annual core course twice under
different instructors;
(6)
establishes a new provision to allow for the
carry-over of core course continuing education credit to the next cycle under
certain criteria;
(7)
expands instructor continuing education credit from 10 hours to up to 28 hours
for teaching courses for which they are approved; and,
(8)
establishes that up to 16 non-core elective continuing
education credits may be awarded to brokers serving on the commission and on
appointed committees of the commission.
For members of the real estate commission the provision would not be effective
until the appointment of new commissioners after January 1, 2021.
(9)
adds a prohibition for brokers receiving CE credit for
attending a disciplinary hearing in which they are a respondent.
Purposes:
The
purposes of the amendments are: (a) to
acknowledge the continuing education value of the qualifying broker refresher
course; (b) to make changes concurrent with the elimination of training and
education categories and their replacement with core elective and non-core
elective definitions in 16.61.1.7 NMAC; (c) to clarify core elective
requirements for qualifying brokers and associate brokers; (d) to clarify
minimum continuing education cumulative credits for qualifying brokers and
associate brokers; (e) to remove the antiquated reference to a now defunct
mandatory course requirement; (f) to confirm the penalty for failing to
complete core course requirements, (g) to establish relief if non-completion of
the annual core course requirement is due to medical incapacitation or
impairment; (h) to expand continuing education incentives for instructors to
develop and instruct needed courses; (i) to establish
incentives for brokers who participate in time intensive volunteer work as
appointed members of committees, task forces, and work groups; and (j) clarify
that respondent brokers cannot gain continuing education credits for attending
their own hearing.
16.61.15 NMAC APPROVAL OF REAL
ESTATE COURSES, SPONSORS, AND INSTRUCTORS:
Section 8 Education Advisory Committee and Section 9. Continuing Education Programs. The amendment to Section 8, Education
Advisory Committee, eliminates the non-voting member category of appointments
to the education advisory committee and would allow all appointees to the
committee would have voting status.
Amendments to Section 9 Continuing Education Programs, eliminates
references to education and training category courses, and replaces those
categories with core elective and non-core elective categories, and establish
how applications for new courses will be considered in light of the two new
categories concurrent and consistent with amendments to 16.61.13 NMAC,
Continuing Education Requirements, and changes to 16.61.1.7 NMAC, Definitions.
Purpose: The purpose of the amendment to Section 8 (B)
is to honor equally the value of all the commission’s appointees to the
education advisory committee. The
purpose of the amendments to Section 9, Continuing Education Programs, is to
make the language consistent with changes to 16.61.1.7 NMAC Definitions,
concerning eliminated training and education categories of courses, and
replacement with core elective and non-core elective categories of courses.
16.61.16 NMAC QUALIFYING BROKER: AFFILIATION AND RESPONSIBILITIES: Section 9 Responsibilities. The amendment would further
define the supervisory responsibilities of the qualifying brokers in their
relationship to the associate brokers.
Purpose: The purpose of the amendments are
to clarify and expand the qualifying broker to associate broker supervisory relationship,
and to outline steps to improve communication within brokerages and ensure
compliance with best management practices in light of emerging complexities in
modern brokerages.
16.61.17 NMAC ASSOCIATE BROKER: AFFILIATION AND RESPONSIBILITIES: This amendment would clarify the
role of the associate broker within the complexities of modern brokerages and
the need to follow policies and procedures and supervisory initiatives of the
qualifying broker. The amendment
compliments amendments made to Part 16.
Purpose: The purpose of the amendments is
to clarify the duties of associate brokers toward qualifying brokers in light
of emerging complexities in modern brokerages.
16.61.19 NMAC BROKER DUTIES AND BROKERAGE RELATIONSHIPS: Section 8 Disclosure.
This amendment adds a disclosure provision to the existing rule that if
a broker in the transaction is not providing the service, advice or assistance
described in Paragraphs (a) and (b) of this Subsection B of 16.61.19.8 NMAC,
the party must agree in writing that the broker is not expected to provide such
service, advice or assistance.
Purpose: This amendment is for the purpose of
clarifying all disclosure responsibilities in all transactions.
16.61.20.8 NMAC TRANSACTION
COORDINATOR: Section 8(H) Requirements: This amendment clarifies the duties of
brokers who are hired by other brokers to act as transaction coordinators but
who have no interaction with the broker’s customer or client or other brokers
involved in the transaction.
Purpose: The purpose of the amendment is to clarify
that brokers who are hired solely to serve as transaction coordinators still
may owe some broker duties.
16.61.23 NMAC
TRUST ACCOUNTS: Sections 8 through 12: The amendments clarify responsibilities
regarding the keeping of records, the filing of reports, and the overall
management of trust and custodial account management.
Purpose: The purpose of the amendments are to clarify
that established record keeping, and reporting responsibilities apply to the
management of custodial accounts.
16.61.24 NMAC PROPERTY MANAGEMENT: Sections 9 through 12: These amendments
follow amendments to Part 23 to clarify that the brokers who offer property
management services have record keeping and reporting responsibilities as they
apply to the management of trust accounts as well as custodial accounts.
Purpose: The purpose of the amendments are to clarify
that established record keeping, and reporting responsibilities apply to the
management of custodial accounts in the context of offering property management
services to others.
16.61.32 NMAC REAL ESTATE
ADVERTISING: Section 8 Advertisements: The
amendments clarify broker disclosure responsibilities concerning advertising
properties which the broker owns, or partially owns, and adds “will own” to the
disclosure responsibility on advertising, signs etc.
Purpose: The purpose of the amendment is
to clarify broker disclosure responsibilities regarding advertising real
estate.
Statutory Authority: Section 61.29.4 NMSA 1978