23 LC 49 1275
H. B. 471
- 1 -
House Bill 471
By: Representatives Crowe of the 118
th
, Powell of the 33
rd
, Washburn of the 144
th
, Roberts
of the 52
nd
, Reeves of the 99
th
, and others
A BILL TO BE ENTITLED
AN ACT
To amend Title 10 of the Official Code of Georgia Annotated, relating to commerce and
1
trade, so as to add an example of an unfair or deceptive practice regarding brokerage2
engagements and options to enter into brokerage engagements to the "Fair Business Practices3
Act"; to provide for requirements and restrictions on certain unsolicited written inquiries or4
mailings expressing an interest in buying real property; to revise provisions regarding the5
duration of relationships between brokers and clients; to provide for limitations on brokerage6
engagements and options to enter into brokerage engagements; to provide for construction;7
to provide for definitions; to amend Code Section 46-5-27 of the Official Code of Georgia8
Annotated, relating to telephone solicitations to residential, mobile, or wireless subscribers,9
Public Service Commission to establish and maintain list of certain subscribers, authorization10
for imposition of administrative fees, confidential nature of data base, and required11
identification, so as to revise a definition; to provide for related matters; to repeal conflicting12
laws; and for other purposes.13
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:14 23 LC 49 1275
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SECTION 1.
15
Title 10 of the Official Code of Georgia Annotated, relating to commerce and trade, is16
amended in Part 2 of Article 15 of Chapter 1, relating to the "Fair Business Practices Act of17
1975," by striking "and" at the end of paragraph (33), striking the period at the end of18
paragraph (34) and inserting "; and
" in lieu thereof, and by adding a new paragraph to19
subsection (b) of Code Section 10-1-393, relating to unfair or deceptive practices in20
consumer transactions unlawful and examples, to read as follows:21
"(35) Failure to comply with the provisions of Code Section 10-6A-9 or 10-6A-1022
regarding brokerage engagements and options to enter into brokerage engagements."23
SECTION 2.24
Said title is further amended in said part by adding a new Code section to read as follows:25
"10-1-393.18.26
(a) Any unsolicited written inquiry or mailing by any person or entity that is not licensed27
or regulated pursuant to the provisions of Chapter 40 or Chapter 41 of Title 43 or28
Chapter 19 of Title 15 that expresses an interest in buying real property, or an option to buy29
real property, from the addressee or in buying the real property to which such written30
inquiry or mailing is addressed or that offers services relating to the sale of real estate shall31
include:32
(1)(A) At the top of and at least two inches apart from any other text on such written33
inquiry or mailing, the following notice in capital letters:34
'THIS IS A SOLICITATION. THE SENDER IS CONTACTING YOU TO35
INQUIRE AS TO YOUR INTEREST IN SELLING YOUR HOME OR OTHER36
REAL ESTATE. YOU ARE UNDER NO OBLIGATION TO RESPOND.'37
(B) No text contained in such solicitation shall be larger than the text required in38
subparagraph (A) of this paragraph.39 23 LC 49 1275
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(2) On front of the envelope or, if there is no envelope, on the part of the written inquiry40
or mailing that bears the postage stamp or postage amount, the following notice in capital41
letters:42
'SOLICITATION. YOU ARE UNDER NO OBLIGATION TO OPEN OR TO43
RESPOND.'44
(3) The notices required in paragraphs (1) and (2) of this subsection shall be:45
(A) Of a font that is the same as the majority of the text of the written inquiry or46
mailing;47
(B) Of a size which is no smaller than the text of the written inquiry or mailing, and in48
no event no smaller than 16 point font; and49
(C) Displayed in a distinctly contrasting color.50
(b) Failure to comply with the provisions of this Code section shall be considered an unfair51
or deceptive act or practice which is unlawful and shall therefore be punishable by the52
provisions of this part; provided, however, that notwithstanding Code Section 10-1-399,53
a claim of a violation of this Code section may be brought in a representative capacity and54
may be the subject of a class action under Code Section 9-11-23; and provided, further, that55
damages for such violation shall be the actual damages or $200.00 per violation, whichever56
is greater."57
SECTION 3.58
Said title is further amended by adding a new paragraph to Code Section 10-6A-3, relating59
to definitions relative to brokerage relationships in real estate transactions, to read as follows:60
"(12.1) 'Option to enter into a brokerage engagement' means a written contract wherein61
a broker pays valuable consideration or agrees that a seller, buyer, landlord, or tenant may62
receive a valuable consideration from another in consideration of such seller, buyer,63
landlord, or tenant granting such broker an exclusive right to enter into a brokerage64 23 LC 49 1275
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engagement with such seller, buyer, landlord, or tenant during the term of the written65
contract."66
SECTION 4.67
Said title is further amended by revising subsection (a) of Code Section 10-6A-9, relating to68
duration of relationships between brokers and clients, as follows:69
"(a) The relationships set forth in Code Sections 10-6A-4 through 10-6A-8 and, Code70
Sections Section 10-6A-12 and, Code Section 10-6A-13, and an option to enter into a71
brokerage engagement shall commence at the time that the client engages the broker or72
executes an option to enter into a brokerage engagement, and shall continue until:73
(1) Completion of performance of the engagement; or74
(2) If paragraph (1) of this subsection is not applicable, then the earlier of:75
(A) Any date of expiration agreed upon by the parties in the brokerage engagement,76
the option to enter into a brokerage engagement, or in any amendments thereto;77
(B) Any authorized termination of the relationship; or78
(C) If no expiration is provided and no authorized termination has occurred, then one79
year after initiation of the brokerage engagement or one year after the date the option80
to enter into a brokerage engagement was executed."81
SECTION 5.82
Said title is further amended by revising Code Section 10-6A-10, relating to duties of brokers83
prior to entering into brokerage engagement relationships, as follows:84
"10-6A-10.85
(a) All brokerage engagements must:86
(1) Advise the prospective client of the types of agency relationships available through87
the broker;88 23 LC 49 1275
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(2) Advise such prospective client of any brokerage relationships held by such broker
89
with other parties which would conflict with any interests of the prospective client90
actually known to the broker but excluding the fact that the broker may be representing91
other sellers and landlords in selling or leasing property or that the broker may be92
representing other buyers and tenants in buying or leasing other property;93
(3) Advise such prospective client as to the broker's compensation and whether the94
broker will share such compensation with other brokers who may represent other parties95
to the transaction in an agency capacity; and96
(4) Advise the prospective client of the broker's obligations to keep information97
confidential under this chapter.98
(b) A brokerage engagement or an option to enter into a brokerage engagement shall not:
99
(1) Purport to be a covenant running with the land or to be binding on future owners of100
interests in the subject property, except for rights solely applicable to commercial real101
estate as set forth in Code Section 44-14-602;102
(2) Allow for assignment of the right to provide service without notice and agreement103
of the owner of the subject property, except for such rights of assignment for commercial104
real estate as set forth in Code Section 44-14-602; or105
(3) Purport to create a recordable lien, encumbrance, or other real property security106
interest. Any such lien, encumbrance, or other real property security interest, if recorded,107
shall be void and unenforceable and no release or voiding of such lien, encumbrance, or108
other real property security interest shall be required; provided, however, that this109
subsection shall not be applicable to lien rights solely applicable to commercial real estate110
as set forth in Code Section 44-14-602.111
(c) This Code section shall not apply to:112
(1) A home warranty, building warranty, or other similar product that covers the cost of113
maintenance of a home's or other building's system or systems for a prescribed period of114
time from the date such home or building is sold;115 23 LC 49 1275
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(2) An insurance contract;116
(3) An option to purchase, a put requirement to purchase, a right of first offer, or a right117
of refusal;118
(4) A declaration created in the formation of a common interest community or an119
amendment thereto;120
(5) A maintenance or repair agreement entered into by a homeowners' or property121
owners' association in a common interest community;122
(6) A loan or a commitment to make or receive a loan secured by real estate; 123
(7) A security agreement under the Uniform Commercial Code relating to the sale or124
rental of personal property or fixtures;125
(8) Water, sewer, electrical, telephone, cable, or other regulated utility service providers;126
or127
(9) A property management agreement by which the owner of the real property shall128
contract with a party to provide management services for the maintenance, ownership,129
operation, or lease of real property, provided that the real estate that is the subject of the130
property management agreement is either for commercial real estate as defined by Code131
Section 44-14-601 or is for residential one-to-four family real estate that is otherwise not132
occupied by the owner or owner's family members as their principal place of residence133
and place of abode as of the date of inception of such property management agreement.134
(d) This Code section shall not be construed to impair the rights granted by Code135
Sections 44-14-361, 44-14-361.1, 44-14-602, and 9-12-80.136
(e) This Code section shall not be construed to create any statutory lien right or statutory137
right to create a cloud on title that is not otherwise created elsewhere in the Official Code138
of Georgia Annotated."139 23 LC 49 1275
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SECTION 6.
140
Code Section 46-5-27 of the Official Code of Georgia Annotated, relating to telephone141
solicitations to residential, mobile, or wireless subscribers, Public Service Commission to142
establish and maintain list of certain subscribers, authorization for imposition of143
administrative fees, confidential nature of data base, and required identification, is amended144
by revising paragraph (3) of subsection (b) as follows:145
"(3) 'Telephone solicitation' means any voice communication over a telephone line for146
the purpose of encouraging the purchase or rental of, or investment in, personal
property,147
real property, goods, or services, but does not include communications:148
(A) To any residential, mobile, or wireless subscriber with that subscriber's prior149
express invitation or permission;150
(B) By or on behalf of any person or entity with whom a residential, mobile, or151
wireless subscriber has a prior or current business or personal relationship; or152
(C) By or on behalf of a charitable organization which has filed a registration statement153
pursuant to Code Section 43-17-5, is exempt from such registration under154
paragraphs (1) through (6) of subsection (a) of Code Section 43-17-9, or is exempt from155
such registration as a religious organization or agency referred to in paragraph (2) of156
Code Section 43-17-2; or157
(D) By any person who is licensed or regulated pursuant to Chapter 40 or Chapter 41158
of Title 43 or Chapter 19 of Title 15.159
Such communication may be from a live operator, through the use of ADAD equipment160
as defined in Code Section 46-5-23, or by other means."161
SECTION 7.162
All laws and parts of laws in conflict with this Act are repealed.163