Georgia 2023-2024 Regular Session

Georgia House Bill HB471 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	23 LC 49 1275
2	2	H. B. 471
3	3	- 1 -
4	4	House Bill 471
5	5	By: Representatives Crowe of the 118
6	6	th
7	7	, Powell of the 33
8	8	rd
9	9	, Washburn of the 144
10	10	th
11	11	, Roberts
12	12	of the 52
13	13	nd
14	14	, Reeves of the 99
15	15	th
16	16	, and others
17	17	A BILL TO BE ENTITLED
18	18	AN ACT
19	19	To amend Title 10 of the Official Code of Georgia Annotated, relating to commerce and
20	20	1
21	21	trade, so as to add an example of an unfair or deceptive practice regarding brokerage2
22	22	engagements and options to enter into brokerage engagements to the "Fair Business Practices3
23	23	Act"; to provide for requirements and restrictions on certain unsolicited written inquiries or4
24	24	mailings expressing an interest in buying real property; to revise provisions regarding the5
25	25	duration of relationships between brokers and clients; to provide for limitations on brokerage6
26	26	engagements and options to enter into brokerage engagements; to provide for construction;7
27	27	to provide for definitions; to amend Code Section 46-5-27 of the Official Code of Georgia8
28	28	Annotated, relating to telephone solicitations to residential, mobile, or wireless subscribers,9
29	29	Public Service Commission to establish and maintain list of certain subscribers, authorization10
30	30	for imposition of administrative fees, confidential nature of data base, and required11
31	31	identification, so as to revise a definition; to provide for related matters; to repeal conflicting12
32	32	laws; and for other purposes.13
33	33	BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:14 23 LC 49 1275
34	34	H. B. 471
35	35	- 2 -
36	36	SECTION 1.
37	37	15
38	38	Title 10 of the Official Code of Georgia Annotated, relating to commerce and trade, is16
39	39	amended in Part 2 of Article 15 of Chapter 1, relating to the "Fair Business Practices Act of17
40	40	1975," by striking "and" at the end of paragraph (33), striking the period at the end of18
41	41	paragraph (34) and inserting "; and
42	42	" in lieu thereof, and by adding a new paragraph to19
43	43	subsection (b) of Code Section 10-1-393, relating to unfair or deceptive practices in20
44	44	consumer transactions unlawful and examples, to read as follows:21
45	45	"(35) Failure to comply with the provisions of Code Section 10-6A-9 or 10-6A-1022
46	46	regarding brokerage engagements and options to enter into brokerage engagements."23
47	47	SECTION 2.24
48	48	Said title is further amended in said part by adding a new Code section to read as follows:25
49	49	"10-1-393.18.26
50	50	(a) Any unsolicited written inquiry or mailing by any person or entity that is not licensed27
51	51	or regulated pursuant to the provisions of Chapter 40 or Chapter 41 of Title 43 or28
52	52	Chapter 19 of Title 15 that expresses an interest in buying real property, or an option to buy29
53	53	real property, from the addressee or in buying the real property to which such written30
54	54	inquiry or mailing is addressed or that offers services relating to the sale of real estate shall31
55	55	include:32
56	56	(1)(A) At the top of and at least two inches apart from any other text on such written33
57	57	inquiry or mailing, the following notice in capital letters:34
58	58	'THIS IS A SOLICITATION. THE SENDER IS CONTACTING YOU TO35
59	59	INQUIRE AS TO YOUR INTEREST IN SELLING YOUR HOME OR OTHER36
60	60	REAL ESTATE. YOU ARE UNDER NO OBLIGATION TO RESPOND.'37
61	61	(B) No text contained in such solicitation shall be larger than the text required in38
62	62	subparagraph (A) of this paragraph.39 23 LC 49 1275
63	63	H. B. 471
64	64	- 3 -
65	65	(2) On front of the envelope or, if there is no envelope, on the part of the written inquiry40
66	66	or mailing that bears the postage stamp or postage amount, the following notice in capital41
67	67	letters:42
68	68	'SOLICITATION. YOU ARE UNDER NO OBLIGATION TO OPEN OR TO43
69	69	RESPOND.'44
70	70	(3) The notices required in paragraphs (1) and (2) of this subsection shall be:45
71	71	(A) Of a font that is the same as the majority of the text of the written inquiry or46
72	72	mailing;47
73	73	(B) Of a size which is no smaller than the text of the written inquiry or mailing, and in48
74	74	no event no smaller than 16 point font; and49
75	75	(C) Displayed in a distinctly contrasting color.50
76	76	(b) Failure to comply with the provisions of this Code section shall be considered an unfair51
77	77	or deceptive act or practice which is unlawful and shall therefore be punishable by the52
78	78	provisions of this part; provided, however, that notwithstanding Code Section 10-1-399,53
79	79	a claim of a violation of this Code section may be brought in a representative capacity and54
80	80	may be the subject of a class action under Code Section 9-11-23; and provided, further, that55
81	81	damages for such violation shall be the actual damages or $200.00 per violation, whichever56
82	82	is greater."57
83	83	SECTION 3.58
84	84	Said title is further amended by adding a new paragraph to Code Section 10-6A-3, relating59
85	85	to definitions relative to brokerage relationships in real estate transactions, to read as follows:60
86	86	"(12.1) 'Option to enter into a brokerage engagement' means a written contract wherein61
87	87	a broker pays valuable consideration or agrees that a seller, buyer, landlord, or tenant may62
88	88	receive a valuable consideration from another in consideration of such seller, buyer,63
89	89	landlord, or tenant granting such broker an exclusive right to enter into a brokerage64 23 LC 49 1275
90	90	H. B. 471
91	91	- 4 -
92	92	engagement with such seller, buyer, landlord, or tenant during the term of the written65
93	93	contract."66
94	94	SECTION 4.67
95	95	Said title is further amended by revising subsection (a) of Code Section 10-6A-9, relating to68
96	96	duration of relationships between brokers and clients, as follows:69
97	97	"(a) The relationships set forth in Code Sections 10-6A-4 through 10-6A-8 and, Code70
98	98	Sections Section 10-6A-12 and, Code Section 10-6A-13, and an option to enter into a71
99	99	brokerage engagement shall commence at the time that the client engages the broker or72
100	100	executes an option to enter into a brokerage engagement, and shall continue until:73
101	101	(1) Completion of performance of the engagement; or74
102	102	(2) If paragraph (1) of this subsection is not applicable, then the earlier of:75
103	103	(A) Any date of expiration agreed upon by the parties in the brokerage engagement,76
104	104	the option to enter into a brokerage engagement, or in any amendments thereto;77
105	105	(B) Any authorized termination of the relationship; or78
106	106	(C) If no expiration is provided and no authorized termination has occurred, then one79
107	107	year after initiation of the brokerage engagement or one year after the date the option80
108	108	to enter into a brokerage engagement was executed."81
109	109	SECTION 5.82
110	110	Said title is further amended by revising Code Section 10-6A-10, relating to duties of brokers83
111	111	prior to entering into brokerage engagement relationships, as follows:84
112	112	"10-6A-10.85
113	113	(a) All brokerage engagements must:86
114	114	(1) Advise the prospective client of the types of agency relationships available through87
115	115	the broker;88 23 LC 49 1275
116	116	H. B. 471
117	117	- 5 -
118	118	(2) Advise such prospective client of any brokerage relationships held by such broker
119	119	89
120	120	with other parties which would conflict with any interests of the prospective client90
121	121	actually known to the broker but excluding the fact that the broker may be representing91
122	122	other sellers and landlords in selling or leasing property or that the broker may be92
123	123	representing other buyers and tenants in buying or leasing other property;93
124	124	(3) Advise such prospective client as to the broker's compensation and whether the94
125	125	broker will share such compensation with other brokers who may represent other parties95
126	126	to the transaction in an agency capacity; and96
127	127	(4) Advise the prospective client of the broker's obligations to keep information97
128	128	confidential under this chapter.98
129	129	(b) A brokerage engagement or an option to enter into a brokerage engagement shall not:
130	130	99
131	131	(1) Purport to be a covenant running with the land or to be binding on future owners of100
132	132	interests in the subject property, except for rights solely applicable to commercial real101
133	133	estate as set forth in Code Section 44-14-602;102
134	134	(2) Allow for assignment of the right to provide service without notice and agreement103
135	135	of the owner of the subject property, except for such rights of assignment for commercial104
136	136	real estate as set forth in Code Section 44-14-602; or105
137	137	(3) Purport to create a recordable lien, encumbrance, or other real property security106
138	138	interest. Any such lien, encumbrance, or other real property security interest, if recorded,107
139	139	shall be void and unenforceable and no release or voiding of such lien, encumbrance, or108
140	140	other real property security interest shall be required; provided, however, that this109
141	141	subsection shall not be applicable to lien rights solely applicable to commercial real estate110
142	142	as set forth in Code Section 44-14-602.111
143	143	(c) This Code section shall not apply to:112
144	144	(1) A home warranty, building warranty, or other similar product that covers the cost of113
145	145	maintenance of a home's or other building's system or systems for a prescribed period of114
146	146	time from the date such home or building is sold;115 23 LC 49 1275
147	147	H. B. 471
148	148	- 6 -
149	149	(2) An insurance contract;116
150	150	(3) An option to purchase, a put requirement to purchase, a right of first offer, or a right117
151	151	of refusal;118
152	152	(4) A declaration created in the formation of a common interest community or an119
153	153	amendment thereto;120
154	154	(5) A maintenance or repair agreement entered into by a homeowners' or property121
155	155	owners' association in a common interest community;122
156	156	(6) A loan or a commitment to make or receive a loan secured by real estate; 123
157	157	(7) A security agreement under the Uniform Commercial Code relating to the sale or124
158	158	rental of personal property or fixtures;125
159	159	(8) Water, sewer, electrical, telephone, cable, or other regulated utility service providers;126
160	160	or127
161	161	(9) A property management agreement by which the owner of the real property shall128
162	162	contract with a party to provide management services for the maintenance, ownership,129
163	163	operation, or lease of real property, provided that the real estate that is the subject of the130
164	164	property management agreement is either for commercial real estate as defined by Code131
165	165	Section 44-14-601 or is for residential one-to-four family real estate that is otherwise not132
166	166	occupied by the owner or owner's family members as their principal place of residence133
167	167	and place of abode as of the date of inception of such property management agreement.134
168	168	(d) This Code section shall not be construed to impair the rights granted by Code135
169	169	Sections 44-14-361, 44-14-361.1, 44-14-602, and 9-12-80.136
170	170	(e) This Code section shall not be construed to create any statutory lien right or statutory137
171	171	right to create a cloud on title that is not otherwise created elsewhere in the Official Code138
172	172	of Georgia Annotated."139 23 LC 49 1275
173	173	H. B. 471
174	174	- 7 -
175	175	SECTION 6.
176	176	140
177	177	Code Section 46-5-27 of the Official Code of Georgia Annotated, relating to telephone141
178	178	solicitations to residential, mobile, or wireless subscribers, Public Service Commission to142
179	179	establish and maintain list of certain subscribers, authorization for imposition of143
180	180	administrative fees, confidential nature of data base, and required identification, is amended144
181	181	by revising paragraph (3) of subsection (b) as follows:145
182	182	"(3) 'Telephone solicitation' means any voice communication over a telephone line for146
183	183	the purpose of encouraging the purchase or rental of, or investment in, personal
184	184	property,147
185	185	real property, goods, or services, but does not include communications:148
186	186	(A) To any residential, mobile, or wireless subscriber with that subscriber's prior149
187	187	express invitation or permission;150
188	188	(B) By or on behalf of any person or entity with whom a residential, mobile, or151
189	189	wireless subscriber has a prior or current business or personal relationship; or152
190	190	(C) By or on behalf of a charitable organization which has filed a registration statement153
191	191	pursuant to Code Section 43-17-5, is exempt from such registration under154
192	192	paragraphs (1) through (6) of subsection (a) of Code Section 43-17-9, or is exempt from155
193	193	such registration as a religious organization or agency referred to in paragraph (2) of156
194	194	Code Section 43-17-2; or157
195	195	(D) By any person who is licensed or regulated pursuant to Chapter 40 or Chapter 41158
196	196	of Title 43 or Chapter 19 of Title 15.159
197	197	Such communication may be from a live operator, through the use of ADAD equipment160
198	198	as defined in Code Section 46-5-23, or by other means."161
199	199	SECTION 7.162
200	200	All laws and parts of laws in conflict with this Act are repealed.163