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NEBRASKA REAL ESTATE COMMISSION October 2, 2000Crowne Plaza Old Mill Rose Room Omaha, NE Opening Chairperson Moore convened a Meeting of the Nebraska Real Estate Commission at 9:00 a.m. on October 2, 2000, in the Rose Room of the Crowne Plaza Old Mill, located at 655 North 108th Avenue in Omaha, Nebraska. All of the members of the Real Estate Commission were present except for Commissioner Janice Wiebusch, who was absent and excused. Also present were Director Les Tyrrell, Deputy Director Teresa Hoffman, Deputy Director for Enforcement Terry Mayrose, and Administrative Assistant Heidi Burklund. Abbie Widger, Special Assistant Attorney General and Counsel to the Commission, was present for the discussion on the proposed changes to the Seller Property Condition Disclosure, Agency Relationships, and Real Estate License Acts. Swearing-In Ceremony - Commissioner Harold H. Johnson Chairperson Moore conducted a swearing-in ceremony for recently-appointed Commissioner Harold H. Johnson, and presented him with his Commission pin. Commissioner Johnson =s guests included his wife and daughter.Notice of Meeting (Adopt Agenda) Director Tyrrell presented a Public Notice and Proofs of Publication thereof relating to this Meeting, all of which are attached to and made a part of these Minutes. Chairperson Moore reported that all Commissioners had been notified of the Meeting simultaneously, in writing, and that a proposed Tentative Agenda accompanied the notification. Chairperson Moore pointed out to those in attendance that a APublic Copy@ of the materials being used during the Meeting was available to the public on the Counsel table in the Meeting Room, and that the procedures followed were in accordance with the Open Meetings Law. Chairperson Moore asked that guests sign the guest list. Director Tyrrell noted that Item 10b had been added since the Tentative Agenda was mailed to the Commissioners. After review of the Final Agenda, a motion was made by Nigro and seconded by Fletcher to adopt the Final Agenda as presented. Motion carried with Fletcher, Johnson, Landow, Moline, Nigro, and Moore voting aye, with Wiebusch not participating or voting, being absent and excused. Minutes of August 23-24, 2000 The Minutes of the Commission Meeting held on August 23-24, 2000, were considered. Action on the Minutes was postponed until the next Meeting, because four Commissioners who were in attendance at that Meeting were needed to vote on approval of the Minutes. Receipts and Expenditures Report for August Director Tyrrell presented the Receipts and Expenditures Report for August 2000. A copy of said Report is attached to and made a part of these Minutes. With regard to the August Report, Director Tyrrell noted the following: There was nothing unusual to report in Receipts, which were over budget for the month. Expenditure Category 4100, Personal Services, appeared to be $500 over the budgeted amount, which was due to an overpayment which will be corrected, and also included payments for three days of Commission meetings; Category 4212, Communication Expense, included payments for two months; and Category 4253, Data Processing Software Licensing, was a miscode which should have been deducted from Category 4419, Data Processing Contract Services. The Cash Fund Balance as of August 31, 2000, was $342,394.13, which compared to a Cash Fund Balance of $260,850.50 on August 31, 1999. After discussion, a motion was made by Nigro and seconded by Fletcher to file the August Receipts and Expenditures Report for audit. Motion carried with Fletcher, Johnson, Landow, Moline, Nigro, and Moore voting aye, with Wiebusch not participating or voting, being absent and excused. Supplemental Budget Request Letter for FY 2000-01 Director Tyrrell presented a Supplemental Budget Request Letter for FY 2000-01. A copy of said Exhibit is attached to and made a part of these Minutes. Director Tyrrell noted that the Supplemental Budget Request was necessary due to the anticipated retirement of a long-term employee. After discussion, a motion was made by Fletcher and seconded by Landow to approve the Supplemental Budget Request Letter for FY 2000-01. Motion carried with Fletcher, Johnson, Landow, Moline, Nigro, and Moore voting aye, with Wiebusch not participating or voting, being absent and excused. Specialized Registrations Fairfield Las Vegas, Grand Desert Resort Condominiums Director Tyrrell presented the Specialized Registrations Report, which listed one Time-Share Registration for Fairfield Las Vegas, Grand Desert Resort Condominiums. A copy of said Report is attached to and made a part of these Minutes. Following discussion, a motion was made by Nigro and seconded by Johnson to approve the Fairfield Las Vegas, Grand Desert Resort Condominiums registration as presented. Motion carried with Fletcher, Johnson, Landow, Moline, Nigro, and Moore voting aye, with Wiebusch not participating or voting, being absent and excused. Trendwest Resorts Inc. Director Tyrrell reported on an application for a Time-Share Registration, for Trendwest Resorts Inc. Director Tyrrell said that the company had approximately 95,000 property owners nationwide, and had requested that they be allowed to disseminate the roster of owners required by state law via the Internet, and in writing only upon request. Director Tyrrell noted that past practice was to have the company submit the roster in writing, but that with 95,000 names, it would be out of date before it was done being printed. Director Tyrrell also noted that allowing use of technology could provide easier access to up-to-date information for the Commission and for the public. Chairperson Moore asked if the request had been approved by legal counsel. Director Tyrrell said it had. Chairperson Moore asked if this was the first request for electronic submittal, and Director Tyrrell said yes. Commissioner Nigro asked if the roster requirement could be eliminated, and Director Tyrrell said a roster was required by state law. A motion was made by Fletcher and seconded by Moline to allow dissemination of owner rosters in electronic format, if also provided in writing upon request. Motion carried with Fletcher, Johnson, Landow, Moline, Nigro, and Moore voting aye, with Wiebusch not participating or voting, being absent and excused. Non-Resident Licenses and Resident Licenses Issued to Persons Holding Licenses in Other States This Report, a copy of which is attached to and made a part of these Minutes, was presented by Deputy Director Hoffman and reported to be in order. After review, a motion was made by Fletcher and seconded by Nigro to ratify issuance of the licenses as set forth in the Report. Motion carried with Fletcher, Johnson, Landow, Moline, Nigro, and Moore voting aye, with Wiebusch not participating or voting, being absent and excused. Licensure Recognition Agreement with South Dakota Deputy Director Hoffman presented a Licensure Recognition Agreement with South Dakota. A copy of said Agreement is attached to and made a part of these Minutes. Deputy Director Hoffman noted that this was a license-for-license agreement with South Dakota, and that the new agreement was necessary because of a change in South Dakota=s laws. Director Tyrrell also noted that this agreement added provisions for licensees moving from one state to the other. After discussion, a motion was made by Moline and seconded by Nigro to enter into the Licensure Recognition Agreement with South Dakota as presented. Motion carried with Fletcher, Johnson, Landow, Moline, Nigro, and Moore voting aye, with Wiebusch not participating or voting, being absent and excused. Examination Report - August Deputy Director Hoffman presented a Report relating to the Real Estate Examinations administered during August 2000. A copy of said Report is attached to and made a part of these Minutes. After review, a motion was made by Moline and seconded by Nigro to ratify the August Report for the purpose of issuing licenses. Motion carried with Fletcher, Johnson, Landow, Moline, Nigro, and Moore voting aye, with Wiebusch not participating or voting, being absent and excused. Proposed Renewal of Examination Contract for July 2001
through June 2003 Deputy Director Hoffman presented a proposed Addendum to the examination contract between Applied Measurement Professionals (AMP) and the Nebraska Real Estate Commission. A copy of said Addendum is attached to and made a part of these Minutes. Deputy Director Hoffman noted that the Addendum extended the term of the contract through June 30, 2003; and increased the examination fee from $59.75 to $63.00. This was the first time the two-year renewal option, which had been recommended by DAS Purchasing, had been exercised. Commissioner Moline asked about AMP=s performance. Deputy Director Hoffman shared information she had obtained at the AMP Advisory Committee Meeting in Kansas City. Deputy Director Hoffman noted that applicants gave AMP an 89% Aabove satisfactory@ rating, as averaged among all their sites nationwide. AMP is capable of administering the Nebraska examination at locations in all 50 states. All jurisdictions that contract with AMP were present at the Advisory Committee Meeting, and all were very satisfied with the service provided. AMP=s examination development schedule is commendable. Applicants can schedule examinations within 3-4 days of the Commission submitting their names to AMP. There have been a few glitches, but they have been resolved quickly. Deputy Director Hoffman was very satisfied with AMP=s performance, and saw no reason to look elsewhere. Commissioner Fletcher asked if the Commission was mandated to issue an RFP (Request for Proposals). Deputy Director Hoffman said that the Commission had the option to renew the contract three times, for two-year periods. The Commission also had the option to start over with the RFP process. Commissioner Fletcher noted that he had been contacted by a company known as Experior, and ascertained that this is the current identity of the examination company that competed with AMP in the most recent RFP process. Commissioner Nigro asked Deputy Director Hoffman to review and comment on a fax the Commissioners had received from Experior. Commissioner Moline provided the fax he received for the official record. Director Tyrrell noted that the fax had not been received in the Commission office, and that it would be denoted as Exhibit 7a1. Commissioner Landow asked what the feedback had been, and approximately how many complaints have been received. Deputy Director Hoffman said there might have been 8 or so in the past year. These were mainly due to a glitch in the computer system, when score reports did not print properly. To address the problem, AMP overnighted score reports from their main office to the applicants. Commissioner Landow asked for an estimate of how many examinations were administered in the past year, and a rough estimate of 800-900 was determined. Commissioner Landow asked if the examination fee would be raised to cover the fee increase. Director Tyrrell said it was up to the Commission, and noted that the current fee is $111.00. Commissioner Moline asked if there was now a procedure in place for replacing lost or damaged original score reports. Deputy Director Hoffman said that the original score report has a picture of the person taking the examination, which is compared to the application picture. The original is provided at the examination site immediately after the examination is administered, and cannot be generated again. Applicants are required to submit the original score report in order to obtain their license. One person lost their original score report, and a few tore off the picture because it was unflattering. Deputy Director Hoffman reported that there is a process in place to address those problems, and it includes verification from the examination company. Commissioner Moline asked if it was a problem to send out an RFP. Deputy Director Hoffman said it was a solid RFP, but that analyzing and comparing the proposals was the difficult part. Commissioner Moline asked how long ago the RFP was sent out. Director Tyrrell said that the Commission implemented computerized examinations three years ago, in the middle of a biennium budget period. The initial contract was written for three years, to synchronize the contract expiration with the biennium budget cycle. DAS Purchasing had recommended adding the two-year renewal option, to save the time and expense of issuing another RFP if the Commission was satisfied with the contract performance. Chairperson Moore asked how many states used each examination company. Deputy Director Hoffman said she did not know. Chairperson Moore said that, three years ago, it seemed that Experior was quicker than AMP to embrace technology. Deputy Director Hoffman said she agreed that Experior moved faster, but noted that AMP had created a very reliable system and maintained close control of their examination sites. Commissioner Landow said AMP was a good company, and that the Commission would know by now if there were wide-scale problems. Commissioner Landow is happy with the service provided for the price, and was in favor of renewing the contract. Chairperson Moore noted that contract renewal negotiation was the best time to extract concessions from a company. Director Tyrrell said AMP had wanted to raise the examination fee to $65.00, and that Deputy Director Hoffman had negotiated that down to $63.00. Commissioner Moline noted that the Experior fax said applicants could schedule examinations on the Internet. Deputy Director Hoffman said that applicants currently call an 800 number to schedule examinations after their applications have been approved by Commission staff. Deputy Director Hoffman noted that AMP has a significant presence on the Web, and that she thought they would stay competitive in services provided. Commissioner Landow said that the renewal could be held over until next month if the Commissioners wanted a definite answer on that point. Director Tyrrell noted that the Experior fax offered to provide examinations Monday through Friday only, and that AMP provides examinations Monday through Friday plus alternating Saturdays in Lincoln and Omaha. Director Tyrrell offered to call AMP and find out about Internet registration. It was the consensus of the Commission that it was not necessary. Commissioner Nigro said that she had a problem with Experior faxing the information to the individual Commissioners and not to the Commission office. Deputy Director Hoffman noted that AMP had achieved ARELLO Certification. Experior=s certification is conditional, because they have not met all of ARELLO=s requirements for full certification. After discussion, a motion was made by Landow and seconded by Fletcher to enter into the Addendum as presented. Motion carried with Fletcher, Johnson, Landow, Nigro, and Moore voting aye, with Moline abstaining, and with Wiebusch not participating or voting, being absent and excused. Real Estate Education Matters Pre-License Education Instructor Approval Deputy Director Hoffman presented for ratification the Pre-License Education Instructor Approval Report, which listed approvals for two pre-license education instructors. A copy of said Report is attached to and made a part of these Minutes. After discussion, a motion was made by Fletcher and seconded by Landow to ratify the Report. Motion carried with Fletcher, Johnson, Landow, Moline, Nigro, and Moore voting aye, with Wiebusch not participating or voting, being absent and excused. Continuing Education Activity Approval Deputy Director Hoffman presented for ratification the Continuing Education Activity Approval Report, which listed approvals for seven continuing education activities. A copy of said Report is attached to and made a part of these Minutes. Deputy Director Hoffman noted that the activities listed for America=s Best were ARELLO-certified computer-based training. Commissioner Moline asked how one would take that training. Deputy Director Hoffman said America=s Best would send a disk, and a person could sit at their own computer and go through the course. Commissioner Fletcher asked about the ethics course mandated by the National Association of Realtors. Deputy Director Hoffman said she was working with staff at the Nebraska Realtors Association to help them modify their proposed course to meet Commission guidelines. Deputy Director Hoffman noted that courses based on a specific organization=s code of conduct were generally not approved, but a course could be approved if it was made applicable to all licensees, regardless of membership in a particular organization. Commissioner Moline asked why a professional society=s code of ethics would be excluded. Chairperson Moore asked if it was because the organization=s code of ethics might not be as stringent as the Commission would want. The philosophy was that continuing education was intended for the general licensee population, regardless of membership in organizations. A general ethics course could cover all the information in a particular organization=s code of ethics, but the approach needed to be for all licensees, members and non-members alike. Courses have to be open to all licensees, and could not exclude certain licensees based on membership. However, sponsoring organizations could make the courses free for members, and charge non-members. Deputy Director Hoffman noted that the same subject areas could be addressed without tailoring the course to one organization=s code of ethics. She used the example that a course on an organization=s complaint and mediation process would not apply to all licensees, only members of the organization, but a course on ethical decision making would be educational and useful to all licensees. Director Tyrrell noted that organizations have had ethics courses approved in this manner in the past. Commissioner Moline said the Commission should wait and see if the state organization works out the differences with Deputy Director Hoffman. Director Tyrrell said the Commission usually acts on specific courses submitted for approval. After discussion, a motion was made by Fletcher and seconded by Nigro to ratify the Report. Motion carried with Fletcher, Johnson, Landow, Moline, Nigro, and Moore voting aye, with Wiebusch not participating or voting, being absent and excused. Continuing Education Instructor Approval Deputy Director Hoffman presented for ratification the Continuing Education Instructor Approval Report, which listed approvals for thirteen continuing education instructors. A copy of said Report is attached to and made a part of these Minutes. Commissioner Moline asked if the out-of-state instructors were available for calls from licensees taking distance education courses. Deputy Director Hoffman noted that the instructors listed on the report were all coming to Nebraska to offer classroom-type activities, but that for distance education, the instructors had to be available for questions. Commissioner Moline asked if each distance education instructor had to be approved. Deputy Director Hoffman said not necessarily, because distance education providers could submit their requirements for instructors, and certify that all instructors would meet those requirements. If the requirements are equal to or more stringent than the Commission=s criteria, certifications are accepted. After discussion, a motion was made by Moline and seconded by Landow to ratify the Report. Motion carried with Fletcher, Johnson, Landow, Moline, Nigro, and Moore voting aye, with Wiebusch not participating or voting, being absent and excused. Continuing Education Activity Rejection Deputy Director Hoffman presented a Continuing Education Activity Rejection. A copy of said Report is attached to and made a part of these Minutes. Deputy Director Hoffman reported that the course primarily addressed partnership taxation issues, not real estate issues. No action was necessary on this Report. Pending Sworn Complaints and Investigative Matters Director Tyrrell presented a Summary Report of the pending complaints, which included a list of licensees presently under disciplinary action or on appeal. A copy of said Report is attached to and made a part of these Minutes. No action was necessary on this Report. The following Sworn Complaints and Investigative Matters were presented to the Commission: Complaint #2000-021 - Michael & RaShelle Fenger vs. Robert Joseph Quartoroli Prior to discussion of this matter, Commissioner Nigro recused herself, thereby nullifying any potential conflict of interest. Deputy Director Mayrose presented the alleged violations and investigative report to the Commission and, when necessary, answered questions on this matter. After being advised of the results of the investigation and discussion, a motion was made by Fletcher and seconded by Moline that the Complaint be dismissed. Motion carried with Fletcher, Johnson, Landow, Moline, and Moore voting aye, with Nigro not participating or voting, having recused herself, thereby nullifying any potential conflict of interest, and with Wiebusch not participating or voting, being absent and excused. Item B Complaint #2000-026 - Duane A. Smith vs. Sharon Kay Bourne Deputy Director Mayrose presented the alleged violations and investigative report to the Commission and, when necessary, answered questions on this matter. After being advised of the results of the investigation and discussion, a motion was made by Moline and seconded by Nigro that the Complaint be dismissed. Motion carried with Fletcher, Johnson, Landow, Moline, Nigro, and Moore voting aye, with Wiebusch not participating or voting, being absent and excused. Item C Complaint #2000-027 - Marjorie Knapp vs. Robert Thomas Maher Deputy Director Mayrose presented the alleged violations and investigative report to the Commission and, when necessary, answered questions on this matter. After being advised of the results of the investigation and discussion, a motion was made by Johnson and seconded by Nigro that the Complaint be dismissed. Motion carried with Fletcher, Johnson, Landow, Moline, Nigro, and Moore voting aye, with Wiebusch not participating or voting, being absent and excused. Item D Investigative Matter Prior to discussion of this matter, Commissioner Moline recused himself, thereby nullifying any potential conflict of interest. Deputy Director Mayrose presented the alleged violations and investigative report to the Commission and, when necessary, answered questions on this matter. After being advised of the results of the investigation and discussion, a motion was made by Landow and seconded by Nigro that a Complaint not be pursued in the matter. Motion carried with Fletcher, Johnson, Landow, Nigro, and Moore voting aye, with Moline not participating or voting, having recused himself, thereby nullifying any potential conflict of interest, and with Wiebusch not participating or voting, being absent and excused.
Synopsis of Violations Found During Trust Account Examinations Director Tyrrell presented a Report on violations found during trust account examinations conducted June-August 2000. A copy of said Report is attached to and made a part of these Minutes. Commissioner Moline noted that, as far as litigation was concerned, sloppy documentation creates more problems for licensees than complaints. No action was necessary on this Report. Presentation of Stipulation and Consent Orders Complaint #2000-025, Commission vs. Roger Theodore Waldo Deputy Director for Enforcement Mayrose presented a Stipulation and Consent Order in the matter of Complaint #2000-025, Commission vs. Roger Theodore Waldo. A copy of said Order is attached to and made a part of these Minutes. Deputy Director Mayrose reviewed the circumstances involved and noted the provisions of the Order, which had been signed by Mr. Waldo. After discussion, a motion was made by Moline and seconded by Johnson to enter into the Order as presented. Motion carried with Fletcher, Johnson, Landow, Moline, Nigro, and Moore voting aye, with Wiebusch not participating or voting, being absent and excused. Director Tyrrell noted that Complaint #2000-005 was being held in abeyance, pending the outcome of the Commission=s Complaint. A motion was made by Johnson and seconded by Fletcher to dismiss Complaint #2000-005. Motion carried with Fletcher, Johnson, Landow, Moline, Nigro, and Moore voting aye, with Wiebusch not participating or voting, being absent and excused. Complaint #2000-014, Harold E. Nott and Adrian C. Lofgren vs. Kaylene Swanson Deputy Director for Enforcement Mayrose presented a Stipulation and Consent Order in the matter of Complaint #2000-014, Harold E. Nott and Adrian C. Lofgren vs. Kaylene Swanson. A copy of said Order is attached to and made a part of these Minutes. Deputy Director Mayrose reviewed the circumstances involved and noted the provisions of the Order, which had been signed by Ms. Swanson. After discussion, a motion was made by Landow and seconded by Nigro to enter into the Order as presented. Motion carried with Fletcher, Landow, Moline, Nigro, and Moore voting aye, with Johnson voting nay, and with Wiebusch not participating or voting, being absent and excused. Informal Special Appearances Reginald Nelson - Presumption to Supervise Affiliated Licensees - 9:45 a.m. Deputy Director Hoffman presented an Exhibit which included a cover memo from her to the Commission, a Presumption to Supervise form with attachments, and a letter from Mr. Nelson=s employer. A copy of said Exhibit is attached to and made a part of these Minutes. Reginald Nelson and O.C. ABob@ Hagen were in attendance. Mr. Nelson distributed a set of copies of letters from Oakland residents, which is attached to and made a part of these Minutes, denoted as Exhibit 11a1. Deputy Director Hoffman reported that Clifford Nelson, Reginald Nelson=s father, was the broker for Clifford E. Nelson Real Estate in Oakland, NE. Clifford Nelson recently passed away, and Reginald Nelson wanted to become the designated broker for the business. Deputy Director Hoffman noted that Reginald Nelson has a broker=s license, and is currently listed as a self-employed broker. The problem was that Mr. Nelson is employed full-time as a railroad engineer, and Title 299 contained the presumption Athat a duly licensed broker whose principal business is other than that of a real estate broker is unable to supervise licensed employees, and said broker shall not be allowed to employ a real estate salesperson or an associate broker until such presumption is overcome by satisfactory evidence to the contrary.@ Mr. Nelson noted that Mr. Hagen =s license was currently hanging with the estate, and would need to transfer when the estate was settled. Director Tyrrell noted that the estate may operate the business under the personal representative until the estate is closed.Commissioner Fletcher asked if the business was a sole proprietorship. Mr. Nelson said yes. Commissioner Nigro asked who had managed the trust account and had done the bookkeeping. Mr. Nelson said his father had done it, and he would have a local CPA do it if he was allowed to be the designated broker, to ensure it was done properly. Chairperson Moore asked about Mr. Nelson =s residency. Mr. Nelson said he lives in South Dakota. Chairperson Moore asked if the distance was a problem. Deputy Director Hoffman said no, the only issue was the presumption to supervise. Chairperson Moore asked if there were statutory limits on distance or residency. Deputy Director Hoffman said no.Chairperson Moore asked if there had been other, similar cases. Deputy Director Hoffman said that, in the past, the Commission has voted both ways, depending on the type of business involved and the availability of the broker. Director Tyrrell noted that this situation was different than most cases, because Mr. Nelson would be on a train, probably far away. In cases where an insurance broker wanted to manage a real estate business in the same building, the Commission usually approved the request. Mr. Nelson said that he was presently working on a maintenance train, and was gone more, because the job paid better. He said he had enough seniority to change his assignment, so he could work yard jobs instead, which would be local. Mr. Hagen said that he needed to take two more classes, and would be able to get his broker =s license after July 2001. The plan was that Mr. Nelson would be the designated broker from the time the estate closed to the time that Mr. Hagen could get his broker=s license. Mr. Nelson said he had tried to get another designated broker, but the other broker decided against it. Mr. Nelson said Mr. Hagen had been active in the business with his father, and just needed to complete the necessary courses. Mr. Hagen clarified that, as of July 2001, he will have had his sales license for two years.Commissioner Landow asked how soon Mr. Hagen could become a broker. Mr. Nelson said it would probably take about a year. Commissioner Landow asked if a temporary approval could be granted. Director Tyrrell said that the Commission could place a condition on Mr. Nelson =s approval, that if Mr. Hagen was not the designated broker by a specified date, the Commission would review the situation at that time.Commissioner Moline noted that technology has changed broker availability, with cell phones, faxes, and e-mail. If the Commission had to review the situation, they would have a year =s track record on how the situation was working.After discussion, a motion was made by Landow and seconded by Fletcher to allow Mr. Nelson to become the employing broker for Clifford E. Nelson Real Estate on a temporary basis for one year, and that if Mr. Nelson wanted to continue past one year, he would be required to appear at the October 2001 Commission Meeting. Commissioner Johnson asked about Mr. Nelson =s and Mr. Hagen=s real estate experience. Mr. Hagen said he had been licensed for less than two years. Mr. Nelson said he had his license for a long time, but had never really used it. He had done maybe one closing, and had been inactive for most of the time. Mr. Hagen noted that he had been doing all activities allowed, including closings, when working for Clifford Nelson.Commissioner Moline asked if Mr. Nelson understood the responsibility he was undertaking. Mr. Nelson said yes, and that he had thoroughly read the license law dealing with employing broker responsibilities. Commissioner Moline asked if there were other brokers in Oakland. Mr. Hagen said there were two. Mr. Nelson said that it would be tough for a new broker to open a business and make a living, because bigger firms now service the area with a local managing broker. A vote was taken on the pending motion. Motion carried with Fletcher, Johnson, Landow, Moline, Nigro, and Moore voting aye, with Wiebusch not participating or voting, being absent and excused. Discussion - Amendments to Seller Property Condition Disclosure, Agency Relationships, and Real Estate License Acts Counsel Widger presented Exhibits which included proposed changes to the Seller Property Condition Disclosure, Agency Relationships, and Real Estate License Acts. A copy of said Exhibits are attached to and made a part of these Minutes, denoted as 12a, 12b, and 12c respectively. Chairperson Moore noted that the exhibits showed agreement on the vast majority of proposed changes, and that this session would address the remaining differences. Counsel Widger noted that the proposed changes integrated suggestions from staff, the Nebraska Realtors Association Task Force, and other interested parties. Counsel Widger reviewed the Exhibits in detail, and explained the reasoning behind the proposed changes. Mike Elgert, Jerry Ahlvers, and W. Fred Hoppe of the Nebraska Realtors Association (NRA) also participated in the discussion. Seller Property Condition Disclosure Statement Subsection 5: It was agreed that the proposed change conformed with the intent of the statute, and that any changes in the property=s condition between the purchase agreement and the closing are addressed by the risk-of-loss clause in the purchase agreement. After discussion, it was the consensus of the Commission that the proposed change was affirmed as presented. Subsection 6(l): Discussion ensued on the wording. It was decided that the Seller Property Condition Disclosure Statement (SPCD) sets up a cause of action for civil liability, and that relocation companies cannot claim away statutory liability. The proposed change would only exempt the relocation company from completing the form, not from providing one completed by the seller. After discussion, it was the consensus of the Commission that the proposed change was affirmed as presented. Subsection 9: It was noted that this language was proposed based on a recent Attorney General=s opinion on licensee responsibility to review completed Seller Property Condition Disclosure forms. It was clarified that reviewing or reading the form was required, but independently verifying the information was not. The proposed change was intended to clarify licensee responsibility. After discussion, it was the consensus of the Commission that the proposed change was affirmed, with the deletion of the phrase, Aor later learns of an error, inaccuracy, or omission in the disclosure statement or update thereof.@ Revised language will be reviewed at the November Meeting. Agency Relationships Section 76-2416(5): Discussion ensued on licensee responsibilities to parties in a transaction. After discussion, it was the consensus of the Commission that the change proposed by the NRA was affirmed as presented. Section 76-2417(3)(a): After discussion, it was the consensus of the Commission that the change proposed by staff was affirmed as presented. Section 76-2417(3)(b): Discussion ensued on verifying information provided by third parties, which could include anyone from a neighbor to a loan officer. Licensees would only have to check with the seller, and could rely on the information provided by the seller. It was noted that there is no way to protect licensees against frivolous lawsuits being filed against them, but that their liability under the law could be limited. After discussion, it was the consensus of the Commission to change the proposed language to include, Aby the client, customer, or any third party, including any independent inspector, which would include the Seller Property Condition Disclosure Statement.@ Section 76-2418(3)(b): Discussion ensued on making this language mirror the language in Section 76-2417(3)(b), or whether a buyer =s agent should have more responsibility. It was noted that attempts to limit licensee liability should come from the Nebraska Realtors Association, not the Commission. After discussion, it was the consensus of the Commission to accept the staff recommendation.Section 76-2418(5): Discussion ensued regarding the best place in statute to address licensee responsibilities regarding the SPCD. It was noted that exceptions and requirements should probably be addressed in the SPCD statute. After discussion, it was the consensus of the Commission to include the change as presented in the next draft, for further discussion. Section 76-2421(3)(b): Discussion ensued on licensee responsibilities to parties in a transaction, and whether licensees should be held to performing the tasks listed in their agency brochures. Most of the discussion centered on the interpretation of Aintends to perform@ versus Amay perform@ or Ashall perform.@ After discussion, it was the consensus of the Commission to make no changes to the Subsection, or to Subsection 76-2421(4)(b).Section 76-2421(6): It was noted that the intent of the new Subsection 6 was to exempt non-residential transactions from the agency disclosure brochure requirement. After discussion, it was the consensus of the Commission that the proposed change was affirmed in intent, but was to be reworded by staff and reviewed at the November Meeting. Section 76-2422(4): It was noted that the revised wording met with the approval of Mr. Tom Fitchett, who had originally proposed the change. The intent of the phrase Aand terms of compensation@ was to require clarification of which party was paying for what in dual agency situations. After discussion, it was the consensus of the Commission that the proposed change was affirmed in intent, but the compensation language was to be reworded by staff and reviewed at the November Meeting.Section 76-2422(6): It was noted that changing the wording from Aexceed@ to Avary from@ could result in transactional brokerage or non-agency relationships. After discussion, it was the consensus of the Commission to make no changes to the Subsection.Section 76-2426(1) and (2): It was noted that actual knowledge was required in other areas of the statute, and that it should be consistent. After discussion, it was the consensus of the Commission to delete the words Aor should have known@ from both Subsections.Section 76-2426(3) and (4): It was noted that actual knowledge was required in other areas of the statute, and that this should be consistent. After discussion, it was the consensus of the Commission to delete the words Aor should have known@ from both Subsections.Nebraska Real Estate License Act Section 81-885.19: Discussion centered on how changes in technology, with cell phones, faxes, and e-mail, may allow brokers to supervise more easily over distance. After discussion, it was the consensus of the Commission to delete the words Aand he or she shall manage no more than one branch office,@ and to have Director Tyrrell research how supervision issues for branch offices are addressed in other jurisdictions. Section 81-885.20(3): After discussion, it was the consensus of the Commission to create a tiered fee structure for group transfers. Staff will research and develop a proposal. Section 81-885.24(29): Discussion ensued on negligence, and how to correct inappropriate behavior before it reached the level of incompetency or unworthiness. After discussion, it was the consensus of the Commission not to delete the word negligence. Section 81-885.24(31), (32), and (33): After discussion, it was the consensus of the Commission to not add the proposed new Subsections. Section 81-885.52(3): After discussion, it was the consensus of the Commission that the change proposed by staff was affirmed as presented. No action was taken, pending revision and further discussion of the proposed changes. Objectives for 2000-2001 Director Tyrrell presented a proposal for the Commission=s 2000-2001 Objectives. A copy of said Exhibit is attached to and made a part of these Minutes. Director Tyrrell noted that today=s interpretation of the Time-Share Act, to allow electronic dissemination of owner rosters, would be addressed under Objective 1. Commissioner Moline suggested broadening Objective 7 to include review of all statutes with the Nebraska Realtors Association; to broaden Objective 3 to include continuing to develop and monitor the website; and to add the interagency disciplinary database to the list. Through discussion, it was the consensus of the Commission to add Aon line@ to Objective 3; to add Objective 8, to review all rules and regulations; and to add Objective 9, to continue to update and develop the website. After discussion, a motion was made by Moline and seconded by Nigro to adopt the 2000-2001 Objectives as modified with the consensus additions. Motion carried with Fletcher, Johnson, Moline, Nigro, and Moore voting aye, with Landow and Wiebusch not participating or voting, being absent and excused. Approval of On-Line Transactions Director Tyrrell presented an Exhibit which specified fees for on-line transactions through Nebraska On-Line. A copy of said Exhibit is attached to and made a part of these Minutes. Director Tyrrell noted that this item was presented at two previous Meetings, and that some of the terms were still being negotiated. When terms are finalized, Director Tyrrell will present the fee schedule to the Commission for approval. No action was necessary on this Report. Information Matters Applied Measurement Professionals Advisory Committee Meeting - Deputy Director Hoffman reported on the AMP Advisory Committee Meeting during the contract renewal discussion. No action was necessary on the Report. Web Server Statistics for August Director Tyrrell presented an Exhibit regarding website usage during August. A copy of said Exhibit is attached to and made a part of these Minutes. No action was necessary on this Report. Report on Risk Management Seminar - September 25-29, 2000 Director Tyrrell reported on the Risk Management Seminars, which were held September 25-29 at various Nebraska locations. Director Tyrrell reported the attendance statistics, and noted that attendees had very positive comments on the sessions. No action was necessary on this Report. Future Meeting Dates November 15-16, 2000 - Staybridge Suites by Holiday Inn, Lincoln December 12-13, 2000 - TBA January 23-24, 2000 - TBA February 21-22, 2000 - TBA March 21-22, 2000 - TBA Recesses and Adjournment At 10:05 a.m. on October 2, Chairperson Moore declared a brief recess, and reconvened the Meeting at 10:20 a.m. At 11:00 a.m. on October 2, Chairperson Moore declared a brief recess, and reconvened the Meeting at 11:07 a.m. At 12:15 p.m. on October 2, Chairperson Moore declared a brief recess, and reconvened the Meeting at 12:25 p.m. At 1:13 p.m., Chairperson Moore excused Commissioner Landow from the remainder of the Meeting. At 2:40 p.m. on October 2, Chairperson Moore declared a brief recess, and reconvened the Meeting at 2:58 p.m. At 4:00 p.m. on October 2, a motion was made by Moline and seconded by Fletcher that the Meeting adjourn. Motion carried with Fletcher, Johnson, Moline, Nigro, and Moore voting aye, with Landow and Wiebusch not participating or voting, being absent and excused. I, Les Tyrrell, Director of the Nebraska Real Estate Commission, do hereby certify that the foregoing Minutes of the October 2, 2000, Meeting of the Nebraska Real Estate Commission were available for inspection on October 11, 2000, in compliance with Section 84-1413(5) R.R.S. 1943, of Nebraska. Respectfully submitted, Guests Signing the Guest List |