Kansas Statutes 58-3050. Refusal to grant or renew; revocation, suspension or restriction of license; censure of licensee; disciplinary actions; civil fines; aggravating circumstances; procedures; recovery of actual costs and attorney fees
Terms Used In Kansas Statutes 58-3050
- Act: means the real estate brokers' and salespersons' license act. See Kansas Statutes 58-3035
- Agency: means every relationship in which a broker acts for or represents another, by the latter's express written authority, in a real estate transaction. See Kansas Statutes 58-30,102
- Broker: means an individual, other than a salesperson, who advertises or represents that such individual engages in the business of buying, selling, exchanging or leasing real estate or who, for compensation, engages in any of the following activities as an employee of, or on behalf of, the owner, purchaser, lessor or lessee of real estate:
(1) Sells, exchanges, purchases or leases real estate. See Kansas Statutes 58-3035
- Client: means a seller, landlord, buyer or tenant who has an agency with a broker. See Kansas Statutes 58-30,102
- Commission: means the Kansas real estate commission. See Kansas Statutes 58-3035
- Complaint: A written statement by the plaintiff stating the wrongs allegedly committed by the defendant.
- Conviction: A judgement of guilt against a criminal defendant.
- Customer: means a seller, landlord, buyer or tenant in a real estate transaction in which a broker is involved but who has not entered into an agency with the broker. See Kansas Statutes 58-30,102
- Forgery: The fraudulent signing or alteration of another's name to an instrument such as a deed, mortgage, or check. The intent of the forgery is to deceive or defraud. Source: OCC
- Fraud: Intentional deception resulting in injury to another.
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Licensee: means any person licensed under this act as a broker or salesperson. See Kansas Statutes 58-3035
- Nolo contendere: No contest-has the same effect as a plea of guilty, as far as the criminal sentence is concerned, but may not be considered as an admission of guilt for any other purpose.
- Plea: In a criminal case, the defendant's statement pleading "guilty" or "not guilty" in answer to the charges, a declaration made in open court.
- Power of attorney: A written instrument which authorizes one person to act as another's agent or attorney. The power of attorney may be for a definite, specific act, or it may be general in nature. The terms of the written power of attorney may specify when it will expire. If not, the power of attorney usually expires when the person granting it dies. Source: OCC
- Probation: A sentencing alternative to imprisonment in which the court releases convicted defendants under supervision as long as certain conditions are observed.
- Property: includes personal and real property. See Kansas Statutes 77-201
- Prosecute: To charge someone with a crime. A prosecutor tries a criminal case on behalf of the government.
- Real estate: means any interest or estate in land, including any leasehold or condominium, whether corporeal, incorporeal, freehold or nonfreehold and whether the real estate is situated in this state or elsewhere, but does not include oil and gas leases, royalties and other mineral interests, and rights of way and easements acquired for the purpose of constructing roadways, pipelines, conduits, wires and facilities related to these types of improvement projects for private and public utilities, municipalities, federal and state governments, or any political subdivision. See Kansas Statutes 58-3035
- Real property: Land, and all immovable fixtures erected on, growing on, or affixed to the land.
- real property: include lands, tenements and hereditaments, and all rights to them and interest in them, equitable as well as legal. See Kansas Statutes 77-201
- Salesperson: means an individual, other than an associate broker, who is employed by a broker or is associated with a broker as an independent contractor and participates in any activity described in subsection (f). See Kansas Statutes 58-3035
- State: when applied to the different parts of the United States, includes the District of Columbia and the territories. See Kansas Statutes 77-201
- Trust account: A general term that covers all types of accounts in a trust department, such as estates, guardianships, and agencies. Source: OCC
(a) Except as provided in subsection (b) and (c), the commission may refuse to grant or renew a license and the license of any licensee may be revoked, suspended, conditioned or restricted or a licensee may be censured, if:
(1) The licensee or applicant has committed a violation of this act or rules and regulations adopted hereunder, or the brokerage relationships in real estate transactions act or rules and regulations adopted thereunder;
(2) the licensee or applicant has entered a plea of guilty or nolo contendere to, or has been convicted of any misdemeanor which reflects on the licensee’s or applicant’s honesty, trustworthiness, integrity or competence to transact the business of real estate;
(3) the licensee or applicant has been finally adjudicated and found to be guilty of violation of the federal fair housing act (42 U.S.C. § 3601 et seq.) or Kan. Stat. Ann. §§ 44-1015 through 44-1029, and amendments thereto;
(4) the licensee or applicant has obtained or reinstated, or attempted to obtain or reinstate, a license by false or fraudulent representation;
(5) the licensee or applicant has violated any lawful order or directive of the commission; or
(6) the licensee or applicant has committed a violation in another state and disciplinary action taken against such licensee or applicant resulted in the suspension, probation or revocation of such licensee’s or applicant’s real estate license in such other state.
(b) Except as provided in subsection (c), the commission shall suspend or revoke the license of any licensee who has entered a plea of guilty or nolo contendere to, or has been convicted of any felony.
(c) The provisions of subsection (b) shall not apply to any person who:
(1) Is currently licensed under this act;
(2) has entered a plea of guilty or nolo contendere to, or has been convicted of any offense specified in subsection (b); and
(3) has disclosed such plea or conviction in such person’s application for any license or renewal thereof on or before July 1, 2007, prior to the commission’s action on such application.
(d) (1) In addition to or in lieu of any other administrative, civil or criminal remedy provided by law, the commission, in accordance with the Kansas administrative procedure act and upon a finding that a licensee has violated a provision of this act or rules and regulations adopted hereunder, or the brokerage relationships in real estate transactions act or rules and regulations adopted thereunder, may impose on such licensee a civil fine not exceeding $1,000 for each violation.
(2) A civil fine not exceeding $5,000 per violation may be imposed if the commission makes specific findings that aggravating circumstances exist and that the licensee:
(A) Misappropriated funds belonging to another person;
(B) engaged in fraud or made any substantial misrepresentation;
(C) represented to a lender, guaranteeing agency or any other interested party, either verbally or through the preparation of false documents, an amount in excess of the true and actual sale price of the real estate or terms differing from those actually agreed upon;
(D) committed forgery or signed or initialed a contractual agreement on behalf of another person in a real estate transaction unless authorized to do so by a duly executed power of attorney; or
(E) intentionally failed to disclose to a client or customer all adverse material facts actually known by the licensee regarding environmental hazards affecting the property that are required by law to be disclosed, the physical condition of the property, material defects in the real property, defects in the title to the real property or the client’s or customer’s ability to perform under the terms of the agreement.
(e) For the purposes of subsection (d), the term “aggravating circumstances” means:
(1) The licensee’s conduct involved fraud or deceit; and
(2) (A) the licensee’s conduct directly resulted in substantial loss or created a significant risk of substantial loss to a customer or client; or
(B) the licensee’s conduct resulted in substantial financial gain to the licensee; or
(C) the licensee has a history of prior disciplinary actions involving violations similar to the violations described in subsection (d)(2).
(f) In all matters pending before the commission, the commission shall have the power to revoke the license of any licensee who voluntarily surrenders such licensee’s license or who does not renew such license pending investigation of misconduct or while charges of misconduct are pending or anticipated.
(g) If a broker or salesperson has been declared incompetent by a court of competent jurisdiction, the commission shall suspend the broker’s or salesperson’s license for the period of disability.
(h) (1) Except as provided by paragraph (2) of this subsection, no complaint alleging violation of this act or rules and regulations adopted hereunder, or the brokerage relationships in real estate transactions act or rules and regulations adopted thereunder, shall be commenced more than three years from the date of the occurrence which is the subject of the complaint.
(2) Unless the violation is not reasonably ascertainable, complaints alleging violation of subsection (a)(4) or (a)(5) shall be commenced within three years from the date of the occurrence of the violation. If the violation is not reasonably ascertainable, complaints alleging violation of subsection (a)(4) or (a)(5) shall be commenced within three years from the date of violation is ascertained by the commission.
(i) All administrative proceedings pursuant to this section shall be conducted in accordance with the Kansas administrative procedure act.
(j) Notwithstanding any provision of this act or the brokerage relationships in real estate transactions act to the contrary, the commission may use emergency adjudicative proceedings, as provided by Kan. Stat. Ann. § 77-536, and amendments thereto, to summarily suspend the license of any licensee if the commission has reasonable cause to believe that the licensee’s trust account is in unsound condition or that the licensee is misappropriating funds belonging to other persons.
(k) If a licensee has entered a plea of guilty or nolo contendere to, or has been convicted of, any felony charge, the commission may use emergency adjudicative proceedings, as provided by Kan. Stat. Ann. § 77-536, and amendments thereto, to suspend or revoke the licensee’s license.
(l) When the real estate license of an individual is revoked and that individual’s name is included in the trade or business name of a real estate brokerage business, the commission may deny continued use of the trade or business name if, in the opinion of the commission, it would be confusing or misleading to the public.
(m) The commission shall be authorized to recover from the fine imposed the commission’s actual costs to investigate and prosecute a disciplinary case against a licensee, including attorney fees. The portion of the fine amount collected that equals the commission’s actual costs related to the investigation and prosecution of the case and attorney fees, as certified by the executive director of the commission to the state treasurer, shall be credited to the real estate commission fee fund. The balance of the fine amount collected shall be credited to the state general fund.