Chapter 1301:5-5 General Provisions for Licensees

1301:5-5-01 Statement to be displayed in broker's office and included in information pamphlets.

Every real estate broker's office shall prominently display a statement in the same immediate area as licenses are displayed which in effect states the following:

(A) The broker and sales associates are licensed by the division of real estate, Ohio department of commerce. It is illegal, pursuant to the Ohio fair housing law, division (H) of section 4112.02 of the Revised Code, and the Federal Fair Housing Law, 42 U.S.C. 3601 , (1988), to refuse to sell, transfer, assign, rent, lease, sublease, or finance housing accommodations, refuse to negotiate for the sale or rental of housing accommodations, or otherwise deny or make unavailable housing accommodations because of race, color, religion, sex, familial status as defined in section 4112.01 of the Revised Code, ancestry, military status as defined in that section, disability as defined in that section, or national origin or to so discriminate in advertising the sale or rental of housing; in the financing of housing, or in the provision of real estate brokerage services, and that the practice of blockbusting is also illegal. The division may be contacted for inquiries and complaints and for information on the real estate recovery fund (section 4735.12 of the Revised Code) as a source of satisfaction of court judgments against licensees of the division.

(B) The statement shall be printed in bold type and shall be at least eight inches by ten inches in size. It shall also include the address and telephone number of the offices of the Ohio division of real estate and shall bear the equal housing logo of the United States department of housing and urban development.

(C) The pamphlet required under section 4735.03 of the Revised Code shall be at least four inches by eight inches in size and shall contain, as well as information on housing and remedies available to dissatisfied clients, the statement provided above, including on the front of the pamphlet below the title the following:

"Provided By Ohio Real Estate Commission"

(D) The names of the commission members and the address and telephone number of the division may change from time to time. Pamphlets not reflecting the appropriate information may be used without violating this rule and as new pamphlets are printed, the appropriate changes shall be made. Displayed statements not reflecting the appropriate division address or telephone number shall be replaced within a reasonable time after the appropriate information is available.

Effective: 01/01/2013
R.C. 119.032 review dates: 06/25/2012 and 06/30/2016
Promulgated Under: 119.03
Statutory Authority: 4735.10
Rule Amplifies: 4735.03 , 4735.10
Prior Effective Dates: 3/9/1980, 12/14/1981, 4/8/1985, 6/1/1989, 12/17/2001, 11/06/2008

1301:5-5-03 Testimony before the Ohio real estate commission. [Rescinded].

Rescinded eff 3-26-07

1301:5-5-06 Referral fees paid to persons licensed in other states or countries.

(A) A licensed real estate broker of this state may pay a commission or referral fee to a licensed real estate broker of another state or country who refers clients or prospects to the Ohio real estate broker. Except as provided in section 4735.022 of the Revised Code, the out of state or out of country broker who refers clients or prospects to an Ohio real estate broker may not perform any of the other acts of a real estate broker with regard to property located in Ohio unless they first obtain an Ohio real estate license.

(B) A licensed real estate broker of this state may receive a commission or referral fee from a licensed real estate broker of another state or country for the referral of clients or prospects to the licensed real estate broker of another state or country.

(C) As used within this rule, the term "refer" or "referral" means the introduction or directing of a person by one broker to another broker for real estate brokerage services.

Effective: 01/01/2013
R.C. 119.032 review dates: 06/25/2012 and 06/30/2016
Promulgated Under: 119.03
Statutory Authority: 4735.10
Rule Amplifies: 4735.10 , 4735.20
Prior Effective Dates: 5/1/1990, 6/21/2002

1301:5-5-07 Licensure exemption; residential rental property.

(A) An individual working with residential rental property who works under the supervision of a broker and whose compensation for service is primarily on a salaried or hourly basis, paid by and through the broker, shall be exempt from licensure if the individual only performs the following limited duties:

(1) Maintenance;

(2) Clerical or administrative support;

(3) Collects or accepts rents and/or security deposits which are made payable to the owner or real estate brokerage;

(4) Exhibits or shows residential rental units to prospective tenants;

(5) Furnishes published information;

(6) Supplies applications and leases;

(7) Receives applications and leases for submission to the owner or brokerage for approval.

(B) In order to be exempt from the licensure requirement as provided in paragraph (A) of this rule, the individual working under the supervision of the broker may not perform the following:

(1) Negotiate contracts or lease agreements;

(2) Vary or deviate from the rental price and/or other terms and conditions previously established by the owner or broker when supplying information concerning the rental of property to a prospective tenant;

(3) Approve applications or lease agreements, or settle or arrange the terms and conditions of a lease on behalf of the owner or broker;

(4) Offer inducements to prospective tenants unless they are previously advertised or prearranged with the owner or broker;

(5) Interpret or provide their opinion concerning the terms or conditions of a lease agreement;

(6) Indicate to the public that the individual is in a position of authority which has the ultimate managerial responsibility of the rental property.

Effective: 01/01/2013
R.C. 119.032 review dates: 06/25/2012 and 06/30/2016
Promulgated Under: 119.03
Statutory Authority: 4735.10
Rule Amplifies: 4735.01 , 4735.10
Prior Effective Dates: 5/1/1990

1301:5-5-08 Handling of trust account funds.

(A) No licensee shall accept any note, nonnegotiable instrument or anything of value not readily negotiable in a real estate transaction without the knowledge and written consent of the owner of the real estate.

(B) Special or trust bank accounts shall be designated by the depository in which the account is located, and all deposit tickets and checks drawn on said account shall bear the words "trust account" or "special account."

(C) A broker may maintain the broker's own funds in the special or trust account only when they are clearly identified as the broker's funds and only for the following purposes:

(1) If the financial institution in which the account is maintained requires a special minimum balance that must be maintained in order to keep the account open, the broker may maintain that amount in the account designated as the broker's funds.

(2) If the financial institution in which the account is maintained requires a service charge be paid for the account, the broker may maintain a reasonable amount to cover the service charge in the account in the broker's name.

(D) Any real estate licensee who fails to comply with the provisions of this rule may be deemed to be in violation of division (A)(6), and/or (A)(26) of section 4735.18 of the Revised Code.

R.C. 119.032 review dates: 06/25/2012 and 06/30/2016
Promulgated Under: 119.03
Statutory Authority: 4735.10
Rule Amplifies: 4735.10 , 4735.18
Prior Effective Dates: 5/1/1990

1301:5-5-09 Trust account records to be maintained.

(A) Every brokerage shall keep a record of all trust funds received, including escrow funds, security deposits, and other monies received by the broker in a fiduciary capacity. This record shall include, but not be limited to, the following information in columnar form:

(1) Date funds received;

(2) Party from whom funds are received and the purpose of the funds;

(3) Amount received;

(4) Date funds are deposited in special or trust bank account;

(5) Check number and date funds are disbursed;

(6) Party to whom funds are disbursed and purpose of disbursement;

(7) Any other documents necessary and sufficient to verify and explain record entries and identify the current balance in the special or trust bank account.

(B) Evidence of a licensee's failure to maintain records in accordance with this rule shall constitute a violation of division (A)(24) of section 4735.18 of the Revised Code.

R.C. 119.032 review dates: 06/25/2012 and 06/30/2016
Promulgated Under: 119.03
Statutory Authority: 4735.10
Rule Amplifies: 4735.10 , 4735.18
Prior Effective Dates: 5/1/1990

1301:5-5-11 Separate property management trust accounts.

(A) All brokerages engaging in the management of property for another shall establish and maintain a separate trust account(s), to be designated as property management trust account(s), for the deposit of security deposits, rents, and money received from the owner(s) or on the owner's(s') behalf for payment of expenses related to the management of property. Before making disbursements from a property management trust account, the real estate license shall ensure that the account balance for that owner's(s') property(ies) is sufficient to cover the disbursements.

(B)

(1) A property management trust account established by a broker may earn interest. Except as provided in paragraph (B)(2) of this rule, the interest earned shall be payable on a pro rata basis to the owner(s) of the property(ies) on whose behalf monies are deposited in the property management trust account. The interest shall be paid or credited on a regular basis, but in no event later than on a quarterly basis.

(2) The property owner(s) and broker may agree that the interest due the owner(s) under this rule will be paid in a manner other than specified in this rule and to a party(ies) other than the owner(s). Any such agreement must be specified in writing, signed by the owner(s) and the broker or an authorized agent of the broker.

(3) Nothing in this rule shall be construed to require that a broker's property management trust account earn interest.

(C) A separate ledger sheet shall be maintained for each owner of property managed by the brokerage identifying the following information in columnar form:

(1) Name and/or address of the property;

(2) Parties to the transaction;

(3) Amount, date, and purpose of deposit(s);

(4) Party from whom deposits are received;

(5) Amount, date, check number, and purpose of disbursements;

(6) Party to whom disbursements are made;

(7) Running balance of funds on deposit for the particular owner of property;

(8) Amount of interest earned on behalf of the owner(s) of the property(ies) if any.

(D) Security deposits received by a licensee must be deposited and maintained in the property management trust account unless the lease and property management agreement provide otherwise. Security deposits maintained in the property management trust account must be clearly identified and credited to the tenant.

(E) All brokerages who engage in property management activities shall provide an accounting to each owner of property managed on a regular basis, but in no event not less than on a quarterly basis.

(F) Any real estate licensee who fails to comply with the provisions of this rule may be deemed to be in violation of divisions (A)(5), (A)(6), and/or (A) (27) of section 4735.18 of the Revised Code.

(G) Division (A)(26) of section 4735.18 of the Revised Code does not apply to brokers who are engaged only in property management and who maintain a property management trust account, as required by division (A)(27) of section 4735.18 of the Revised Code.

(H) Division (A)(27) of section 4735.18 of the Revised Code does not apply to brokers:

(1) That do not collect any rents, security deposits, escrow funds, or other money received in a fiduciary capacity in the course of managing real property; or

(2) That only collect but do not retain security deposits, first or last month's rent, or other money and do not collect any other monthly rent or money and have no other duties on behalf of the owner following the execution of a lease; or

(3) That only maintain property management accounts in the name of the owner pursuant to rule 1301:5-5-23 of the Administrative Code.

Effective: 01/01/2013
R.C. 119.032 review dates: 06/25/2012 and 06/30/2016
Promulgated Under: 119.03
Statutory Authority: 4735.10
Rule Amplifies: 4735.18(A)(26)
Prior Effective Dates: 9/1/1990, 1/1/1997

1301:5-5-23 Property management account(s) in the name of the owner.

(A) Brokerages engaged in the management of property for another may, pursuant to a written contract with the property owner, exercise signatory authority for withdrawals from property management account(s) maintained in the name of that property owner. The contract with the property owner shall specify the purposes for which the brokerage may make withdrawals from the owner's account(s) and any dollar limits that exist on the amounts the brokerage may withdraw. Any modification to these specifications must be agreed to in writing.

(B) A brokerage that withdraws funds from a property management account maintained in the name of the property owner, pursuant to a written contract with the property owner, does not violate division (A) of section 4735.18 of the Revised Code.

(C) Brokerages engaged in the management of property on behalf of property owners through property management accounts maintained in the owner's name, must comply with paragraphs (C) and (E) of rule 1301:5-5-11 of the Administrative Code.

R.C. 119.032 review dates: 06/25/2012 and 06/30/2016
Promulgated Under: 119.03
Statutory Authority: 4735.10
Rule Amplifies: 4735.18(A)(26) , 4735.10(d)
Prior Effective Dates: 1/1/1997

1301:5-5-24 Informal mediation meeting accommodations.

(A) An informal mediation meeting, in accordance with section 4735.051 of the Revised Code, may be held for the purpose of facilitating an accommodation between the complainant and licensee. Any party who participates in the informal mediation meeting may be accompanied by legal counsel, whose role shall be limited to representing his/her client. "Mediation" is defined by division (A) in section 2710.01 of the Revised Code.

(B) Except as provided in Chapter 2710. of the Revised Code, nothing said or done during the informal mediation meeting shall be disclosed by the investigator or division staff or be used as evidence in any subsequent hearing, investigation or other proceeding.

(C) If an accommodation is reached at the informal mediation meeting, the investigator shall prepare an accommodation agreement, which shall set forth all measures to be taken by the parties thereto, including provisions for affirmative and other relief. The accommodation agreement shall be signed by the persons to be bound by the agreement and the superintendent or the superintendent's designee.

(D) In accordance with division (D) of section 4735.05 of the Revised Code, the accommodation agreement shall be held in confidence by the superintendent, the investigators and other personnel of the department.

(E) If the superintendent finds the licensee has failed, without good cause shown, to comply with the terms set forth in the accommodation agreement the following shall apply:

(1) The accommodation agreement will be considered null and void, and

(2) The superintendent may proceed with the formal investigation based on the original complaint, and

(3) The licensee's failure to comply with the accommodation agreement shall constitute prima facie evidence of misconduct and shall constitute a violation of division (A)(6) of section 4735.18 of the Revised Code.

(F) The complaint file shall be closed if the superintendent finds:

(1) The complainant has failed, without good cause shown, to comply with the terms set forth in the accommodation agreement; and

(2) The licensee has made a good faith effort to comply with the terms set forth in the accommodation agreement.

(G) If an accommodation is reached at the informal mediation meeting and the terms of the accommodation agreement satisfied, the complaint file shall be closed. If an accommodation is not reached at the informal mediation meeting, an investigator, different than the one that participated in the informal mediation meeting, shall proceed with an investigation as provided in section 4735.051 of the Revised Code.

Effective: 01/01/2013
R.C. 119.032 review dates: 06/25/2012 and 06/30/2016
Promulgated Under: 119.03
Statutory Authority: 4735.10
Rule Amplifies: 4735.051
Prior Effective Dates: 1/1/2004, 03/26/2007

1301:5-5-25 Reconsiderations.

(A) The real estate commission shall only consider applications for reconsideration pursuant to section 4735.19 of the Revised Code from a complainant, respondent, or credential applicant on the grounds of newly discovered, material evidence which with reasonable diligence could not have been discovered and produced at the commission hearing or review.

(B) A description of the newly discovered oral evidence and/or documentary evidence shall accompany the application for reconsideration.

Effective: 01/01/2013
R.C. 119.032 review dates: 06/30/2016
Promulgated Under: 119.03
Statutory Authority: 4735.19
Rule Amplifies: 4735.19

1301:5-5-30 Waiver of duties statement.

(A) The appendix to this rule contains the form to be used for waiver of duties as required by division (C) of section 4735.621 of the Revised Code. All of the requirements of section 4731.621 of the Revised Code are contained in the appendix.

Appendix 1 WAIVER OF DUTIES STATEMENT

See Appendix at

http://www.registerofohio.state.oh.us/pdfs/1301/5/5/1301$5-5-30_PH_FF_N_APP1_20061013_1147.pdf

R.C. 119.032 review dates: 06/25/2012 and 06/30/2016
Promulgated Under: 119.03
Statutory Authority: 4735.621
Rule Amplifies: 4735.621
Prior Effective Dates: 10/23/2006