New Mexico Real Estate Licensing Law

New Mexico Code · 63 sections

The following is the full text of New Mexico’s real estate licensing law statutes as published in the New Mexico Code. For the official version, see the New Mexico Legislature.

N.M. Stat. Ann. § 61-1-1

Chapter 61, Article 1 NMSA 1978 may be cited as the "Uniform Licensing Act".

History: 1953 Comp., § 67-26-1, enacted by Laws 1957, ch. 247, § 1; 1971, ch. 54, § 1; 2021 (1st S.S.), ch. 3, § 7.

ANNOTATIONS

Compiler's notes. — Laws 2002, ch. 83, §§ 2 to 4 purported to enact new sections under the Uniform Licensing Act, but those sections were relocated to appear following the State Civil Emergency Preparedness Act, which is compiled as 12-10-1 to 12-10-10 NMSA 1978.

Cross references. — For State Rules Act, see 14-4-1 NMSA 1978 et seq.

For criminal offender employment, see 28-2-1 NMSA 1978.

For the Parental Responsibility Act, see 40-5A-1 NMSA 1978 et seq.

The 2021 (1st S.S.) amendment, effective June 29, 2021, changed "Sections 67-26-1 through 67-26-31 NMSA 1953" to "Chapter 61, Article 1 NMSA 1978".

Due process. — A regulation of the New Mexico board of psychologist examiners requiring an oral examination for reinstatement of a retiree's license was rationally related to a legitimate governmental purpose; however, the examination might not comply with due process, and, thus, an applicant for reinstatement was entitled to a hearing on the rational justification for the oral examination requirement. Mills v. N.M. State Bd. of Psychologist Exam'rs, 1997-NMSC-028, 123 N.M. 421, 941 P.2d 502.

Appeals. — Because the Uniform Licensing Act did not provide a retired psychologist with a basis for appealing a decision of the New Mexico board of psychologist examiners to require an oral examination for reinstatement of her license, she could request a writ of certiorari to obtain review of the board's alleged due process violations. Mills v. N.M. State Bd. of Psychologist Exam'rs, 1997-NMSC-028, 123 N.M. 421, 941 P.2d 502.

Revocation must be based on substantial evidence. — In administrative adjudications where a person's livelihood (a property right) is at stake, any action depriving a person of that property must be based upon such substantial evidence as would support a verdict in a court of law. Young v. Board of Pharmacy, 1969-NMSC-168, 81 N.M. 5, 462 P.2d 139.

Naked hearsay insufficient. — In proceedings to revoke a license to conduct a business or profession, where, by law, the licensee is entitled to a hearing before the licensing authority, revocation based solely upon hearsay evidence is unwarranted. Young v. Board of Pharmacy, 1969-NMSC-168, 81 N.M. 5, 462 P.2d 139.

License not revocable on grounds for original denial. — An administrative agency, having once issued a license to an applicant who has made full disclosure of all pertinent facts, may not revoke that same license for reasons that would not have permitted issuance of the license in the first instance. Roberts v. State Bd. of Embalmers & Funeral Dirs., 1967-NMSC-257, 78 N.M. 536, 434 P.2d 61.

Barring fraud and misrepresentation and the existence of statutory authority, state may not revoke the license issued previously to party for the reason that party did not have two years of college training required by the statute when, in fact, at the time appellant granted the license to party, state knew that appellee did not have said college work but, nevertheless, proceeded to grant the license under a policy which, in effect, eliminated the college requirement. Roberts v. State Bd. of Embalmers & Funeral Dirs., 1967-NMSC-257, 78 N.M. 536, 434 P.2d 61.

Specification of "unprofessional conduct" not required. — A board may suspend or revoke a license to practice a profession for "unprofessional conduct" without its being required to first specify by regulation or rule exactly what acts may be so considered. Young v. Board of Pharmacy, 1969-NMSC-168, 81 N.M. 5, 462 P.2d 139.

Preexisting account not required to receive funds. — No law or regulation of the New Mexico real estate commission requires a custodial, trust or escrow account prior to the receipt of funds appropriate for deposit in such account. McCaughtry v. N.M. Real Estate Comm'n, 1970-NMSC-143, 82 N.M. 116, 477 P.2d 292.

Law reviews. — For note, "Police Power and the Design of Buildings," see 5 Nat. Res. J. 122 (1965).

For article, "An Administrative Procedure Act for New Mexico," see 8 Nat. Res. J. 114 (1968).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 58 Am. Jur. 2d Occupations, Trades, and Professions §§ 1 to 10.

Single or isolated transactions as falling within provisions of commercial or occupational licensing requirements, 93 A.L.R.2d 90.

Physician's or other healer's conduct, or conviction of offense, not directly related to medical practice, as ground for disciplinary action, 34 A.L.R.4th 609.

Physician's or other healer's conduct in connection with defense of or resistance to malpractice action as ground for revocation of license or other disciplinary action, 44 A.L.R.4th 248.

Failure of building and construction artisan or contractor to procure business or occupational license as affecting enforceability of contract or right to recover for work done - modern cases, 44 A.L.R.4th 271.

Validity of state or municipal tax or license fee upon occupation of practicing law, 50 A.L.R.4th 467.

N.M. Stat. Ann. § 61-1-12

61-1-12. Record.

In all hearings conducted pursuant to the Uniform Licensing Act, a complete record shall be made of all evidence received during the course of the hearing. The record shall be preserved by any stenographic method in use in the district courts of this state or, in the discretion of the board, by digital recording technology. The board shall observe any standards pertaining to digital recordings established for the district courts of this state.

History: 1953 Comp., § 67-26-12, enacted by Laws 1957, ch. 247, § 12; 1978 Comp., § 61-1-12; 1981, ch. 349, § 11; 2023, ch. 190, § 13.

ANNOTATIONS

The 2023 amendment, effective July 1, 2023, clarified language in the section; deleted "tape" and added "digital" preceding "recording", after "recording", added "technology", and deleted "tape" and added "digital" preceding "recordings".

Section provides for complete transcript. McCaughtry v. N.M. Real Estate Comm'n, 1970-NMSC-143, 82 N.M. 116, 477 P.2d 292.

N.M. Stat. Ann. § 61-1-13

61-1-13. Decision.

A. After a hearing has been completed, the members of the board shall proceed to consider the case and as soon as practicable shall render their decision, provided that the decision shall be rendered by a quorum of the board. In cases in which the hearing is conducted by a hearing officer, all members who were not present throughout the hearing shall familiarize themselves with the record, including the hearing officer's report, before participating in the decision. In cases in which the hearing is conducted by the board, all members who were not present throughout the hearing shall thoroughly familiarize themselves with the entire record, including all evidence taken at the hearing, before participating in the decision.

B. A final decision and order based on the hearing shall be made by a quorum of the board and signed and executed by the person designated by the board within ninety days after the hearing is closed by the board.

History: 1953 Comp., § 67-26-13, enacted by Laws 1957, ch. 247, § 13; 1978 Comp., § 61-1-13; 1981, ch. 349, § 12; 1993, ch. 295, § 6; 2023, ch. 190, § 14.

ANNOTATIONS

The 2023 amendment, effective July 1, 2023, clarified certain language in the section, and revised the deadline by which the board must submit a final decision and order following a hearing; and in Subsection B, after "A", added "final", after "decision", added "and order", after "signed", added "and executed", after "by the board within", deleted "sixty days after the completion of the preparation of the record or submission of a hearing officer’s report, whichever is later. In any case, the decision must be rendered and signed within", and after "after the hearing", added "is closed by the board."

The 1993 amendment, effective June 18, 1993, in Subsection A, substituted "a quorum of the board" for "the board at a meeting where a majority of the members are present and participating in the decision" at the end of the first sentence; and made stylistic changes in the second and third sentences.

Standard of proof for a hearing under this section is by a preponderance of the evidence. Foster v. Board of Dentistry, 1986-NMSC-009, 103 N.M. 776, 714 P.2d 580.

Section requires that decision be made by majority of the members of the board. McCaughtry v. N.M. Real Estate Comm'n, 1970-NMSC-143, 82 N.M. 116, 477 P.2d 292.

The board is not required to give deference to a hearing officer’s report. — Where the hearing officer was appointed to take evidence on a complaint that the dentist engaged in unprofessional conduct, the hearing officer found that the dentist had not engaged in unprofessional conduct and recommended that no disciplinary action be taken; the board reviewed the hearing officer’s report and the evidence, and concluded that the dentist had engaged in unprofessional conduct; and the Uniform Licensing Act only permits the hearing officer to make findings, but not to make conclusions of law or recommendations regarding disciplinary action and requires the board to use its knowledge and expertise to make its own findings and conclusions, and to determine what disciplinary action is appropriate, the district court erred by concluding that the board acted arbitrarily and capriciously when it failed to defer to the hearing officer’s report. N.M. Bd. of Dental Health Care v. Jaime, 2013-NMCA-040, 296 P.3d 1261.

Effect of failure to timely sign decision. — Failure of the board of dentistry to render and sign its decision suspending a dentist's license within 90 days after completion of the hearing made the decision null and void. Foster v. Board of Dentistry, 1986-NMSC-009, 103 N.M. 776, 714 P.2d 580.

The 90-day time limit imposed by this section is expressly jurisdictional. Where the board fails to take action within the required 90-day period, its decision is void and must be reversed. Lopez v. N.M. Bd. of Med. Exam'rs, 1988-NMSC-039, 107 N.M. 145, 754 P.2d 522.

Authority of secretary of public education to revoke teachers’ licenses. — Article XII, Section 6 of the New Mexico Constitution, the Uniform Licensing Act, Sections 61-1-1 et seq. NMSA 1978, the Public Education Department Act, Chapter 9, Article 24 NMSA 1978, the Public School Code, Chapter 22 NMSA 1978, and the School Personnel Act, Chapter 22, Article 10A NMSA 1978, do not preclude the secretary of public education from having exclusive authority to make the final decision to revoke a teacher’s license. Skowronski v. N.M. Pub. Educ. Dep’t, 2013-NMCA-034, 298 P.3d 469, cert. granted, 2013-NMCERT-003.

Uniform Licensing Act is not a tax statute, and does not carry with it the presumption of correctness and burden of persuasion that favors the state in tax matters. Kmart Props., Inc. v. N.M. Taxation & Revenue Dep't, 2006-NMCA-026, 139 N.M. 177, 131 P.3d 27, aff'd, 2006-NMSC-006, 139 N.M. 172, 131 P.3d 22.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 53 C.J.S. Licenses §§ 43, 60.

N.M. Stat. Ann. § 61-1-3.1

61-1-3.1. Limitations.

A. An action that would have any of the effects specified in Subsections D through N of Section 61-1-3 NMSA 1978 or an action related to unlicensed activity shall not be initiated by a board later than two years after the discovery by the board of the conduct that would be the basis for the action, except as provided in this section or otherwise provided by law. Discovery by the board is considered the date on which a complaint or other information that would reasonably connect the allegations to the person was received by a board or board staff.

B. The time limitation contained in Subsection A of this section shall be tolled by any civil or criminal litigation in which the licensee or applicant is a party arising from substantially the same facts, conduct or transactions that would be the basis for the board's action.

C. The New Mexico state board of psychologist examiners shall not initiate an action that would result in any of the actions specified in Subsections D through N of Section 61-1-3 NMSA 1978 later than five years after the conduct of the psychologist or psychologist associate that is the basis for the action. However, if the conduct that is the basis for the action involves a minor or a person adjudicated incompetent, the action shall be initiated, in the case of a minor, no later than one year after the minor's eighteenth birthday or five years after the conduct, whichever is last and, in the case of a person adjudicated incompetent, one year after the adjudication of incompetence is terminated or five years after the conduct, whichever is last.

D. The New Mexico public accountancy board shall not initiate an action under the 1999 Public Accountancy Act [Chapter 61, Article 28B NMSA 1978] that would result in any of the actions specified in Subsections D through N of Section 61-1-3 NMSA 1978 later than two years following the discovery by the board of a violation of that act.

History: 1978 Comp., § 61-1-3.1, enacted by Laws 1981, ch. 349, § 3; 1989, ch. 41, § 1; 1992, ch. 10, § 27; 1993, ch. 218, § 40; 1993, ch. 295, § 4; 2003, ch. 334, § 1; 2023, ch. 190, § 3.

ANNOTATIONS

The 2023 amendment, effective July 1, 2023, clarified when the statute of limitations begins to run in an action related to licensure or unlicensed activity; in Subsection A, after "provided in", deleted "Subsection C of", and after "this section", added "or otherwise provided by law. Discovery by the board is considered the date on which a complaint or other information that would reasonably connect the allegations to the person was received by a board or board staff."

The 2003 amendment, effective July 1, 2003, in Subsection A, inserted "or an action related to unlicensed activity", "by the board" and substituted "Subsection C" for "Subsections C and D"; in Subsection D, inserted "1999" preceding "Public Accountancy Act".

The 1993 amendment, effective June 18, 1993, substituted "Subsections D through N" for "Subsection D, E or F" in Subsection A and the first sentence of Subsection C; inserted "the discovery of" in Subsection A; substituted "result in any of the actions" for "have any of the effects" in the first sentence of Subsection C; and rewrote Subsection D. This section was also amended by Laws 1993, ch. 218, § 40. The section is set out as amended by Laws 1993, ch. 295, § 4. See 12-1-8 NMSA 1978.

The 1992 amendment, effective May 20, 1992, substituted "Subsections C and D" for "Subsection C" in Subsection A, added Subsection D and made minor stylistic changes throughout the section.

The 1989 amendment, effective June 16, 1989, in Subsection A, substituted "Subsection D" for "Subsections D" and added "except as provided in Subsection C of this section"; in Subsection B deleted ", transaction" following "conduct"; and added Subsection C.

When limitation period began to run under the 1993 version of the statute. — The 1993 version of the two-year limitations began to run when the licensing board discovered the conduct giving rise to a disciplinary action against a licensee, not when someone else, such as a complaining party, discovered the conduct. N.M. Real Estate Comm'n v. Barger, 2012-NMCA-081, 284 P.3d 1112.

Where a complaint was filed with the New Mexico real estate commission in October 2008 against the licensed real estate broker which alleged that the broker was guilty of ethical violations in connection with a real estate contract executed by a seller of real estate and the broker as buyer; the commission investigated the matter and, in May 2010, filed a notice of contemplated action against the broker threatening to revoke the broker’s license; the notice of contemplated action was filed more than two years after the complaining party discovered the broker’s alleged unethical conduct, but less than two years after the commission discovered the conduct; the 1993 version of the statute did not specify whose discovery of unethical conduct triggered the limitations period; and the 2003 amendment specified that discovery of the unethical conduct by the commission triggered the limitations period, the limitations period began to run under the 1993 version of the statute when the commission discovered the broker’s conduct, not when the complaining party discovered the conduct. N.M. Real Estate Comm'n v. Barger, 2012-NMCA-081, 284 P.3d 1112.

Disciplinary action may not be taken against a party later than two years after the improper conduct is discovered by the board. — Where the New Mexico real estate commission (NMREC) issued a notice of contemplated action indicating formal action against petitioners for the revocation of their real estate licenses two years and six days after NMREC received notice from the New Mexico attorney general's office regarding a complaint from a homeowner alleging that petitioners made false statements regarding their business relationship with the homeowner and acted in bad faith regarding negotiations for the short sale of the homeowner's home, the disciplinary action was time-barred by the statute of limitations. A licensing board, subject to the Uniform Licensing Act, §§ 61-1-1 through 61-1-37 NMSA 1978, cannot take disciplinary action against a party later than two years after the improper conduct is discovered by the board. Trubow v. N.M. Real Est. Comm'n, 2022-NMCA-044, cert. granted.

When limitation period begins to run. — The limitation period of this section begins to run from the date of the licensee's culpable conduct. Varoz v. N.M. Bd. of Podiatry, 1986-NMSC-051, 104 N.M. 454, 722 P.2d 1176.

Criminal prosecution tolls statute. — The criminal prosecution of culpable conduct serves only to toll the statute if litigation is commenced during the two-year period following the criminal act. Varoz v. N.M. Bd. of Podiatry, 1986-NMSC-051, 104 N.M. 454, 722 P.2d 1176.

If tolling applies, the limitation period is tolled from the time of indictment or information until the judgment of conviction has been entered, but no longer. Varoz v. N.M. Bd. of Podiatry, 1986-NMSC-051, 104 N.M. 454, 722 P.2d 1176.

Conviction is not "conduct". — Although the fact of conviction may provide a separate and independent basis for revoking a professional license, a conviction is not "conduct" within the meaning of this section and, therefore, the two-year limitation period begins to run from the time of the conduct, transaction or occurrence that underlies the conviction rather than from the date of conviction. Varoz v. N.M. Bd. of Podiatry, 1986-NMSC-051, 104 N.M. 454, 722 P.2d 1176.

Evidence outside of limitations period proper. — Where psychologist failed to object at the administrative hearing to evidence concerning events that occurred outside of the statute of limitations; as such, the evidence of the therapeutic relationship was properly presented in order to provide context and background. N.M. State Bd. of Psychologist Exam'rs v. Land, 2003-NMCA-034, 133 N.M. 362, 62 P.3d 1244, cert. denied, 133 N.M. 413, 63 P.3d 516.

Am. Jur. 2d, A.L.R. and C.J.S. references. — Applicability of statute of limitations or doctrine of laches to proceeding to revoke or suspend license to practice medicine, 51 A.L.R.4th 1147.

N.M. Stat. Ann. § 61-1-8

61-1-8. Rights of party entitled to hearing.

A. A party entitled to be heard pursuant to the provisions of the Uniform Licensing Act shall have the right to be represented by counsel; to present all relevant evidence by means of witnesses, books, papers, documents and other evidence; to examine all opposing witnesses who appear on a matter relevant to the issues; and to have subpoenas and subpoenas duces tecum issued as of right prior to the commencement of the hearing to compel discovery and the attendance of witnesses and the production of relevant books, papers, documents and other evidence upon making written request for them to the board or hearing officer. The issuance of such subpoenas after the commencement of the hearing rests in the discretion of the board or the hearing officer. All notices issued pursuant to Section 61-1-4 NMSA 1978 shall contain a statement of these rights.

B. Upon written request to another party, any party is entitled to:

(1) obtain the names and addresses of witnesses who will or may be called by the other party to testify at the hearing; and

(2) inspect and copy documents or items that the other party will or may introduce in evidence at the hearing.

C. The party to whom a request is made shall comply with the request within ten days after the service or delivery of the request. No request shall be made less than fifteen days before the hearing.

D. A party may take depositions after service of notice in accordance with the Rules of Civil Procedure for the District Courts. Depositions may be used as in proceedings governed by those rules.

History: 1953 Comp., § 67-26-8, enacted by Laws 1957, ch. 247, § 8; 1978 Comp., § 61-1-8; 1981, ch. 349, § 7; 2023, ch. 190, § 11.

ANNOTATIONS

The 2023 amendment, effective July 1, 2023, clarified language in the section; and struck language allowing a party the right to be represented by a licensed member of the party’s profession or occupation or both; substituted "person" with "party" throughout the section; in Subsection A, after "represented by counsel", deleted "or by a licensed member of his own profession or occupation or both"; and redesignated former Subsection C as Subsection D.

Section provides right to examine all opposing witnesses. McCaughtry v. N.M. Real Estate Comm'n, 1970-NMSC-143, 82 N.M. 116, 477 P.2d 292.

Law reviews. — For article, "An Administrative Procedure Act for New Mexico," see 8 Nat. Res. J. 114 (1968).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 51 Am. Jur. 2d Licenses and Permits §§ 60, 61.

53 C.J.S. Licenses §§ 43, 54, 58, 59.

N.M. Stat. Ann. § 61-24D-11

A. The board may deny issuance of a license or may suspend, revoke, limit or condition a license if the applicant or licensee is convicted of a felony or misdemeanor, provided that the denial, suspension or revocation is in accordance with the Criminal Offender Employment Act [28-2-1 to 28-2-6 NMSA 1978]; has by false or fraudulent representations obtained a license; or in performing or attempting to perform any of the activities covered by the provisions of the Home Inspector Licensing Act, the applicant or licensee has:

(1) made a substantial misrepresentation;

(2) violated any of the provisions of the Home Inspector Licensing Act or any rule of the board;

(3) offered or delivered compensation, inducement or reward to the owner of the inspected property or to the broker or the agent for the referral of any business to the home inspector or the home inspector's company;

(4) had a license to perform home inspections revoked, suspended, denied, stipulated or otherwise limited in any state, jurisdiction, territory or possession of the United States or another country for actions of the licensee similar to acts proscribed in this subsection;

(5) failed to furnish the board, its investigators or its representatives with information requested by the board in the course of an official investigation; or

(6) performed or offered to perform for an additional fee any repair to a structure on which the home inspector or the home inspector's company has prepared a report at any time during the twelve months immediately prior to the repair or offer to repair, except that a home inspection company that is affiliated with or that retains a home inspector does not violate this paragraph if the home inspection company performs repairs pursuant to a claim made pursuant to the terms of a home inspection contract.

B. Disciplinary proceedings conducted by the board may be instituted by sworn complaint by any person, including a board member, and shall conform to the provisions of the Uniform Licensing Act [61-1-1 to 61-1-31 NMSA 1978].

C. All licensing, revocation and suspension proceedings conducted by the board shall be governed by the provisions of the Uniform Licensing Act.

History: Laws 2019, ch. 239, § 11.

ANNOTATIONS

Effective dates. — Laws 2019, ch. 239, § 17 made Laws 2019, ch. 239 effective January 1, 2020.

N.M. Stat. Ann. § 61-24D-3

A. The "New Mexico home inspectors board" is created and is administratively attached to the regulation and licensing department.

B. The board shall consist of five members, appointed by the governor, who have been residents of the state for at least three consecutive years immediately prior to their appointment. Three members shall be home inspectors. One member shall be a real estate qualifying or associate broker licensed in accordance with Chapter 61, Article 29 NMSA 1978, and one member shall be a member of the public who has never been licensed as a home inspector or real estate broker. No more than one member shall be a resident of any one county in the state. The initial home inspector members appointed shall demonstrate that they have been actively and lawfully engaged in home inspections for at least twenty-four months prior to the effective date of the Home Inspector Licensing Act and have met the requirements of Paragraphs (1) through (4) of Subsection A of Section 61-24D-6 NMSA 1978. The initial home inspector members appointed shall comply with Paragraph (6) of Subsection A of Section 61-24D-6 NMSA 1978 within six months of the effective date of the licensing examination rule promulgated by the board in accordance with the State Rules Act [Chapter 14, Article 4 NMSA 1978]. After the board is initially established, any replacement of a home inspector member shall be a licensee.

C. Board members shall serve for five years or until their successors are appointed and qualified. The governor may remove a member with or without cause. In the event of a vacancy, the governor shall appoint a member to complete the unexpired term. The initial board members appointed shall serve staggered terms from the date of their appointment as follows:

(1) two members for three-year terms;

(2) two members for two-year terms; and

(3) one member for a one-year term.

D. The board shall elect annually from among its members a chair and other officers as the board determines. The board shall meet at times and places as fixed by the board. A majority of the board constitutes a quorum.

E. Members of the board may receive per diem and mileage as provided in the Per Diem and Mileage Act [10-1-8 to 10-8-8 NMSA 1978] but shall receive no other compensation, perquisite or allowance.

F. The board shall possess all powers and perform all duties prescribed by the Home Inspector Licensing Act and as otherwise provided by law and may promulgate rules in accordance with the State Rules Act to carry out the provisions of the Home Inspector Licensing Act.

G. Pursuant to the provisions of the Home Inspector Licensing Act, the board shall:

(1) adopt rules and procedures necessary to administer and enforce the provisions of the Home Inspector Licensing Act;

(2) adopt and publish a code of ethics and standards of practice for persons licensed under the Home Inspector Licensing Act;

(3) issue, renew, suspend, modify or revoke licenses to home inspectors in accordance with the Uniform Licensing Act [Chapter 61, Article 1 NMSA 1978];

(4) establish standards for the training, experience and continuing education requirements of the Home Inspector Licensing Act;

(5) establish the amount and administer the fees charged for examinations, initial licensure, license renewals, reinstatement of revoked or suspended licenses, reactivation of inactive or expired licenses, criminal background checks and other services pursuant to the provisions of the Home Inspector Licensing Act;

(6) adopt an approved examination, which may be administered by a nationally accepted testing service, in compliance with federal Americans with Disabilities Act of 1990 accommodations as required by law;

(7) conduct state and criminal background checks on all applicants for a license;

(8) maintain a list of the names and addresses of all licensees and of all persons whose licenses have been suspended or revoked within that year, together with such other information relative to the enforcement of the provisions of the Home Inspector Licensing Act;

(9) maintain a statement of all funds received and a statement of all disbursements;

(10) mail copies of statements to any person in this state upon request; and

(11) perform other functions and duties as may be necessary to administer or carry out the provisions of the Home Inspector Licensing Act.

History: Laws 2019, ch. 239, § 3; 2022, ch. 39, § 93; 2023, ch. 54, § 2.

ANNOTATIONS

The 2023 amendment, effective July 1, 2023, required that the licensing examination that the New Mexico home inspectors board adopts be administered in compliance with the federal Americans with Disabilities Act of 1990; and in Subsection G, Paragraph G(6), after "adopt", deleted "and approve a licensing" and added "an approved", and after "testing service", deleted "as determined by the board" and added "in compliance with federal Americans with Disabilities Act of 1990 accommodations as required by law".

The 2022 amendment, effective May 18, 2022, clarified that the New Mexico home inspectors board is required to follow the provisions of the State Rules Act when promulgating rules and is required to follow the provisions of the Uniform Licensing Act for licensing and disciplinary matters; in Subsection B, after "promulgated by the board", added "in accordance with the State Rules Act"; in Subsection F, after "provided by law and may", deleted "make and enforce rules" and added "promulgate rules in accordance with the State Rules Act", and after "provisions of", deleted "that" and added "the Home Inspector Licensing"; in Subsection G, Paragraph G(3), after "licenses to home inspectors", deleted "pursuant to the provisions of the Home Inspectors Licensing" and added "in accordance with the Uniform Licensing"; and deleted Subsection H.

N.M. Stat. Ann. § 61-24D-5

A. A person who is not a licensee shall not:

(1) conduct home inspections, develop a report or otherwise engage in the business of home inspection;

(2) in the course of conducting business, use the title "home inspector", "certified home inspector", "registered home inspector", "licensed home inspector", "professional home inspector" or any other title, abbreviation, letters, figures or signs that indicate the person is a licensed home inspector; or

(3) use the terms "state licensed" or "licensed" to refer to an inspection conducted or a report prepared by a person who is not a licensee.

B. A business entity shall not provide home inspection services unless all of the home inspectors employed by the business are licensees.

C. A business entity shall not use, in connection with the name or signature of the business, the title "home inspectors" to describe the business entity's services unless each person employed by the business as a home inspector is a licensee.

D. The Home Inspector Licensing Act does not apply to a person:

(1) licensed by the state as an engineer, an architect, a real estate qualifying or associate broker, a real estate appraiser, a certified general appraiser, a residential real estate appraiser or a pest control operator, when acting within the scope of the person's license;

(2) licensed by the state or a political subdivision of the state as an electrician, a general contractor, a plumber or a heating and air conditioning technician, when acting within the scope of the person's license;

(3) regulated by the state as an insurance adjuster, when acting within the scope of the person's license;

(4) employed by the state or a political subdivision of the state as a code enforcement official, when acting within the scope of the person's employment;

(5) who performs an energy audit of a residential property;

(6) who performs a warranty evaluation of components, systems or appliances within a resale residential property for the purpose of issuing a home warranty; provided that all warranty evaluation reports include a statement that the warranty evaluation performed is not a home inspection and does not meet the standards of a home inspection pursuant to the provisions of the Home Inspector Licensing Act. A home warranty company shall not refer to a warranty evaluation as a home inspection;

(7) who in the scope of the person's employment performs safety inspections of utility equipment in or attached to residential real property pursuant to the provisions of Chapter 62 NMSA 1978 or rules adopted by the public regulation commission; and

(8) hired by the owner or lessor of residential real property to perform an inspection of the components of the residential real property for the purpose of preparing a bid or estimate for performing construction, remodeling or repair work in the residential real property.

History: Laws 2019, ch. 239, § 5.

ANNOTATIONS

Effective dates. — Laws 2019, ch. 239, § 17 made Laws 2019, ch. 239 effective January 1, 2020.

N.M. Stat. Ann. § 61-29-1

It is unlawful for a person to engage in the business or act in the capacity of real estate associate broker or qualifying broker within New Mexico without a license issued by the commission. A person who engages in the business or acts in the capacity of an associate broker or a qualifying broker in New Mexico, except as otherwise provided in Section 61-29-2 NMSA 1978, with or without a New Mexico real estate broker's license, has thereby submitted to the jurisdiction of the state and to the administrative jurisdiction of the commission and is subject to all penalties and remedies available for a violation of any provision of Chapter 61, Article 29 NMSA 1978.

History: 1953 Comp., § 67-24-19, enacted by Laws 1959, ch. 226, § 1; 1965, ch. 304, § 1; 2001, ch. 163, § 1; 2005, ch. 35, § 1; 2013, ch. 167, § 1.

ANNOTATIONS

The 2013 amendment, effective June 14, 2013, clarified the prohibited activities; in the first sentence, after "engage in the business", added "or", and after "act in the capacity of", deleted "advertise or display in any manner or otherwise assume to engage in the business of, or act as an", added "real estate" and in the second sentence, after "with or without a New Mexico" added "real estate broker’s".

The 2005 amendment, effective January 1, 2006, prohibits a person from engaging in business or acting as an associate broker or a qualifying broker without a license.

The 2001 amendment, effective July 1, 2001, substituted "a person to engage" for "any person, business association or corporation to engage"; deleted "real estate" preceding "broker"; deleted "New Mexico real estate" preceding "commission"; and added the last sentence of the subsection.

Brokerage can encompass sale of interest in real estate contract. — Commission had jurisdiction over real estate broker's sale of an interest in a real estate contract since broker was a real estate broker as defined in Section 61-29-2A(4) NMSA 1978 and represented himself as such and acted in that capacity. Elliott v. N.M. Real Estate Comm'n, 1985-NMSC-078, 103 N.M. 273, 705 P.2d 679.

Payment of a finder's fee to an unlicensed real estate broker prohibited. — Where a Chapter 7 trustee filed a motion to sell debtors' house, and where the terms of the proposed sale included a proposed finder's fee for creditor, an unlicensed real estate broker who introduced the buyers of the house to the trustee, the proposed finder's fee was prohibited by this section, because the creditor, as an unlicensed broker in New Mexico, may not collect a finder's fee or any other compensation from the sale of real estate. In re Waggoner, 605 B.R. 222 (Bankr. D. N.M. 2019).

Generally, as to advertisements violating section. — It is a violation of this section for a person, business firm or corporation to advertise the disposition of real estate using the terms "Real Estate Agency," "Realty," "Agency" or "Broker" without first being licensed as a real estate broker as is defined in Section 61-29-2 NMSA 1978. It is not really important whether or not the person, business firm or corporation doing the advertising uses the terms "Real Estate Agency," "Realty," "Agency" or "Broker." The real question is: have they advertised themselves as offering a service which comes within the definition of a real estate broker and a real estate salesman? 1966 Op. Att'y Gen. No. 66-16.

A person who auctions the real estate of another person for compensation is acting as an associate or qualifying broker. — The Real Estate Brokers and Salesmen Act (act), 61-29-1 to 61-29-29 NMSA 1978, specifically lists auctioning or the offer to auction real estate, when performed for another and for compensation, as conduct that brings one within the definition of associate broker and qualifying broker, and therefore a person who auctions or offers for auction the real estate of another person for compensation is acting as an associate or qualifying broker under the act and must possess a broker's license issued by the New Mexico real estate commission, regardless of whether the auctioneer is hired by the seller or by a licensed broker. Necessity of a Real Estate Broker's License to Auction Real Estate (5/24/16), Att'y Gen. Adv. Ltr. 2016-05.

Rule governing advertisements applies to advertisements of real estate auctions. — The New Mexico real estate commission has adopted a rule governing real estate advertising that requires all real estate advertising be a true and factual representation of the property and real estate services being advertised, and because auctioning or offering for auction the real estate of another for compensation is a real estate service that requires a broker's license, it follows that advertisements regarding the sale of real estate by auction comes under this rule. Necessity of a Real Estate Broker's License to Auction Real Estate (5/24/16), Att'y Gen. Adv. Ltr. 2016-05.

Law reviews. — For note, "Vendor and Purchaser - Increased Risks of Forfeiture and Malpractice Resulting from the Use of Real Estate Contracts: Albuquerque National Bank v. Albuquerque Ranch Estates, Inc.," see 15 N.M.L. Rev. 99 (1985).

For 1984-88 survey of New Mexico administrative law, 19 N.M.L. Rev. 575 (1990).

For annual survey of New Mexico Law of Property, see 20 N.M.L. Rev. 373 (1990).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 12 Am. Jur. 2d Brokers §§ 6 to 12.

Validity of statute or ordinance requiring real estate brokers to procure license, 39 A.L.R.2d 606.

Application of state antitrust laws to activities or practices of real estate agents or associations, 22 A.L.R.4th 103.

Attorney's right to act as real estate broker without having been licensed as such, 23 A.L.R.4th 230.

Right to private action under state statutes or regulations governing real estate brokers or salesmen, 28 A.L.R.4th 199.

Real estate brokers: statute or regulation forbidding use of prizes, gifts, or premiums as inducement to secure customers, 62 A.L.R.4th 1044.

Broker's liability for fraud or misrepresentation concerning development or nondevelopment of nearby property, 71 A.L.R.4th 511.

Liability of vendor or real-estate broker for failure to disclose information concerning off-site conditions affecting value of property, 41 A.L.R.5th 157.

12 C.J.S. Brokers §§ 14, 18.

N.M. Stat. Ann. § 61-29-10

61-29-10 NMSA 1978 specifically sets out the means to be used by the commission in determining applicant's reputation and competency. 1963 Op. Att'y Gen. No. 63-110.

When license under Mobile Housing Act (now Manufactured Housing Act) required. — When a real estate broker or salesperson acts as the agent for another person in the sale, exchange, lease or purchase of a mobile housing unit which is not attached to real property he is no longer engaging in the real estate business as defined in the Real Estate Licensing Act. Rather, he is engaged in the business of acting as an agent for another in the sale of a mobile housing unit and must be licensed as a dealer under the Mobile Housing Act (now Manufactured Housing Act). 1982 Op. Att'y Gen. No. 82-12.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 12 Am. Jur. 2d Brokers § 12.

12 C.J.S. Brokers § 19.

N.M. Stat. Ann. § 61-29-10.1

61-29-10.1. Brokerage relationships; creation.

A. For all regulated real estate transactions first executed on or after January 1, 2000, no agency relationship between a buyer, seller, landlord or tenant and a brokerage shall exist unless the buyer, seller, landlord or tenant and the brokerage agree, in writing, to the agency relationship. No type of agency relationship may be assumed by a buyer, seller, landlord, tenant or licensee, or created orally or by implication.

B. A brokerage may provide real estate services to a client pursuant to an express written agreement that does not create an agency relationship and no agency duties will be imposed on the brokerage.

C. A brokerage may provide real estate services to a customer without entering into an express written agreement and without creating an agency relationship and no agency duties will be imposed on the brokerage.

D. The commission shall promulgate rules governing the rights of clients or customers and the rights, responsibilities and duties of a brokerage in those brokerage relationships that are subject to the jurisdiction of the commission.

History: Laws 1999, ch. 127, § 2; 2003, ch. 36, § 2.

ANNOTATIONS

The 2003 amendment, effective January 1, 2004, inserted present Subsections B and C and redesignated former Subsection B as present Subsection D; in present Subsection D deleted "and responsibilities" following "governing the rights" near the beginning and substituted "a brokerage in those brokerage relationships that are subject to the jurisdiction of the commission" for "the brokerage in an agency relationship" at the end.

N.M. Stat. Ann. § 61-29-10.2

61-29-10.2. Licensee's duties; disclosure.

A. Prior to the time a licensee generates or presents any written document that has the potential to become an express written agreement, the licensee shall give to a prospective buyer, seller, landlord or tenant a list of the licensee's duties that are in accordance with requirements established by the commission.

B. Licensees shall perform all duties that are established for licensees by the commission.

History: Laws 1999, ch. 127, § 3; 2003, ch. 36, § 3; 2005, ch. 35, § 12.

ANNOTATIONS

The 2005 amendment, effective January 1, 2006, provides that prior to the time a licensee prepares or presents a document that will be a written agreement, the licensee must provide a list of the licensee’s duties.

The 2003 amendment, effective January 1, 2004, substituted "Licensee's Duties - Disclosure" for "Brokerage Relationship; Disclosure" in the heading; designated the former first paragraph as Subsection A and added Subsection B; and substituted "at the time when the parties enter into an express written agreement, a list of the licensee's duties that are in accordance with requirements established by the commission" for "at the first substantive contact a brokerage relationship disclosure in accordance with requirements established by the commission" at the end of Subsection A.

Transaction brokers duty of care includes disclosing the licensing status of recommended contractors. — Where defendant signed a listing agreement with plaintiffs to be their transaction broker for the sale of their home, and where, after a home inspection revealed problems with portions of the roof, defendant volunteered to find a roofer to perform the work, and where the roofer, who was not licensed or insured, performed the work negligently, causing a fire that destroyed plaintiffs’ home, the district court did not err in concluding that defendant owed statutory duties independent of the listing agreement regarding the recommendation and procurement of the roofer or in concluding that the fire and plaintiffs’ damages were a natural and continuous result from defendant’s recommendation of an unqualified roofer, because the New Mexico real estate commission’s established reasonable care as a duty for transaction brokers; this duty includes disclosing the licensing status for recommended contractors. LM Insurance v. I Do ABQ, 2023-NMCA-021.

District judge did not err in awarding attorney fees where there was a connection between negligence claims and listing agreement. — Where defendant signed a listing agreement with plaintiffs to be their transaction broker for the sale of their home, and where, after a home inspection revealed problems with portions of the roof, defendant volunteered to find a roofer to perform the work, and where the roofer, who was not licensed or insured, performed the work negligently, causing a fire that destroyed plaintiffs’ home, and where the district court concluded that defendant owed statutory duties independent of the listing agreement regarding the recommendation and procurement of the roofer and that the fire and plaintiffs’ damages were a natural and continuous result from defendant’s recommendation of an unqualified roofer, the district court did not err in awarding attorney fees based on the listing agreement’s attorney fee provision, because plaintiffs’ negligence claims were related to the parties listing agreement and resulted in litigation, as contemplated by the attorney fees provision. LM Insurance v. I Do ABQ, 2023-NMCA-021.

N.M. Stat. Ann. § 61-29-11

61-29-11. Issuance, renewal and surrender of licenses.

A. The commission shall issue to each qualified applicant a license in the form and size prescribed by the commission.

B. The license shall show the name and address of the licensee. An associate broker's license shall show the name of the qualifying broker by whom the associate broker is engaged. The commission shall deliver or mail the license of the associate broker to the qualifying broker by whom the associate broker is engaged, and the qualifying broker shall display the license at the brokerage from which the associate broker will be conducting real estate business on behalf of the brokerage. The license of the associate broker shall remain in the custody and control of the qualifying broker as long as the associate broker is engaged by that qualifying broker.

C. Any qualifying broker's or associate broker's license suspended or revoked by an order, stipulated agreement or settlement agreement approved by the commission shall be surrendered to the commission by the broker upon the delivery of the order to the broker by the commission, or on the effective date of the order. All real-estate-related activity conducted under such license shall cease for the duration of the license suspension or revocation, and any associate broker licenses hanging with a qualifying broker whose license is suspended or revoked shall be automatically placed on inactive status until a new qualifying broker or a qualifying broker in charge is designated.

D. Every license shall be renewed every three years on or before the last day of the month following the licensee's month of birth. Upon written request for renewal by the licensee, the commission shall certify renewal of a license if there is no reason or condition that might warrant the refusal of the renewal of a license. The licensee shall provide proof of compliance with continuing education requirements and pay the renewal fee. If a licensee has not made application for renewal of license, furnished proof of compliance with continuing education requirements and paid the renewal fee by the license renewal date, the license shall expire. The commission may require a person whose license has expired to apply for a license as if the person had not been previously licensed under Chapter 61, Article 29 NMSA 1978 and further require that the person be reexamined. The commission shall require a person whose license has expired to pay when the person applies for a license, in addition to any other fee, a late fee. If during a period of one year from the date the license expires the person or the person's spouse is either absent from this state on active duty military service or the person is suffering from an illness or injury of such severity that the person is physically or mentally incapable of making application for a license, payment of the late fee and reexamination shall not be required by the commission if, within three months of the person's permanent return to this state or sufficient recovery from illness or injury to allow the person to make an application, the person makes application to the commission for a license. A copy of that person's or that person's spouse's military orders or a certificate from the applicant's physician shall accompany the application. A person excused by reason of active duty military service, illness or injury as provided for in this subsection may make application for a license without imposition of the late fee. All fees collected pursuant to this subsection shall be disposed of in accordance with the provisions of Section 61-29-8 NMSA 1978. The revocation of a qualifying broker's license automatically suspends every associate broker's license granted to any person by virtue of association with the qualifying broker whose license has been revoked, pending a change of qualifying broker. Upon the naming of a new qualifying broker, the suspended license shall be reactivated without charge if granted during the three-year renewal cycle.

E. A qualifying broker shall conduct brokerage business under the trade name and from the brokerage address registered with the commission. Every brokerage shall have a qualifying broker in charge. The license of the qualifying broker and each associate broker associated with that qualifying broker shall be prominently displayed in each brokerage office. The address of the office shall be designated in the qualifying broker's license, and a license issued shall not authorize the licensee to transact real estate business at any other address. In case of removal from the designated address, the licensee shall make application to the commission before the removal or within ten days thereafter, designating the new location of the licensee's office and paying the required fee, whereupon the commission shall issue a license for the new location if the new location complies with the terms of Chapter 61, Article 29 NMSA 1978. A qualifying broker shall maintain a sign at the brokerage office of such size and content as the commission prescribes.

F. When an associate broker is discharged or terminates association or employment with the qualifying broker with whom the associate broker is associated, the qualifying broker shall deliver or mail the associate broker's license to the commission within forty-eight hours. The commission shall hold the license on inactive status. It is unlawful for an associate broker to perform any of the acts authorized by Chapter 61, Article 29 NMSA 1978 either directly or indirectly under authority of an inactive license after the associate broker's association with a qualifying broker has been terminated and the associate broker's license has been returned to the commission until the appropriate fee has been paid and the license has been reissued and reactivated by the commission.

History: 1953 Comp., § 67-24-28, enacted by Laws 1959, ch. 226, § 10; 1965, ch. 304, § 6; 1977, ch. 295, § 3; 1979, ch. 94, § 3; 1980, ch. 82, § 11; 1981, ch. 22, § 2; 1983, ch. 261, § 4; 1985, ch. 89, § 2; 1987, ch. 90, § 4; 1993, ch. 253, § 2; 1995, ch. 143, § 2; 2001, ch. 163, § 7; 2003, ch. 22, § 5; 2005, ch. 35, § 13; 2013, ch. 167, § 6.

ANNOTATIONS

The 2013 amendment, effective June 14, 2013, provided for the surrender of suspended and revoked licenses; and added Subsection C.

The 2005 amendment, effective January 1, 2006, requires that an associate broker’s license show the name of the qualifying broker by whom the associate broker is engaged; requires the real estate commission to send the associate broker’s license to the qualifying broker by which the associate broker is engaged; requires the qualifying broker to display the associate broker’s license at the brokerage; provides that the associate broker’s license remains in the custody of the qualifying broker as long as the associate broker is engaged by the qualifying broker; provides that the revocation of a qualifying broker’s license suspends the license of every associate broker engaged by the qualifying broker; requires qualifying brokers to conduct brokerage business under the trade name and at the address registered with the real estate commission; requires that the qualifying broker’s license and the licenses of associate brokers be displayed at the brokerage office; and provides that if an associate broker ceases to be engaged by the qualifying broker, the qualifying broker must send the associate broker’s license to the real estate commission to be held in inactive status.

The 2003 amendment, effective June 20, 2003, in Subsection C, deleted "of one hundred dollars ($100)" at the end of the sixth sentence; in Subsection D, substituted "within this state a fixed office that conforms" for "a fixed office within this state which shall be so located as to conform" following "broker shall maintain" near the beginning of the first sentence, and inserted "real estate" preceding "salesperson" near the middle of the third sentence.

The 2001 amendment, effective July 1, 2001, deleted "permanent" preceding "license" in Subsection A; in Subsection B, deleted "real estate" preceding "broker" in two places; in Subsection C, substituted the reactivation provision and conditions thereto for suspended licenses for the provision that a new license will be issued in the event that the real estate salesperson's license is suspended, and will be free if re-issued in the same year it was granted; in Subsection D, deleted "under Chapter 61, Article 29 NMSA 1978" following "operated by a licensed broker", inserted "who is a natural person", deleted "or under contract to" following "associated with", deleted "except a licensed branch office" following "any other address", in Subsection E, deleted "immediately" preceding "deliver" and inserted "within forty-eight hours" in the first sentence, substituted "an inactive license" for "such license" in the second sentence; and deleted Subsection F, concerning the renewal of licenses within a certain time period in order to coordinate certain requirements.

The 1995 amendment, effective July 1, 1995, in Subsection C, rewrote the first sentence which read "Every license shall be subject to annual renewal on the last day of the licensee's month of birth", made a related change in the third sentence, and deleted "annual" and "annually" preceding "renewal" throughout the subsection; made a stylistic change in Subsection D; and added Subsection F.

The 1993 amendment, effective June 18, 1993, inserted "or his spouse" and "the person" preceding "is suffering" in the sixth sentence and substituted "that person or his spouse's" for "the person's" in the seventh sentence, in Subsection C; deleted "for cancellation" from the end of the first sentence, inserted the second sentence, and substituted "to the commission" for "for a cancellation" in the last sentence, in Subsection E; and made stylistic changes in Subsections C and D.

Fiduciary duties of salesperson extended to broker. — Because a real estate salesperson must work under a broker, when a principal buyer or seller engages a real estate salesperson as an agent, the principal also engages the salesperson's qualifying broker as an agent, thus extending the fiduciary duty owed to the principal buyer or seller up the salesperson's chain of command to the broker. Although agency fiduciary obligations and liabilities may extend from a salesperson to the qualifying broker, the fiduciary duties of one real estate salesperson are not attributable to another salesperson operating under the same qualifying broker unless one salesperson is at fault in appointing, supervising or cooperating with the other. Moser v. Bertram, 1993-NMSC-040, 115 N.M. 766, 858 P.2d 854.

Brokers must supervise their salespeople. — Section 61-29-2 NMSA 1978 and this section express a clear legislative mandate that brokers, the persons principally responsible to the public, actually be in a position to supervise the actions of their salespeople. At the same time, the statutes do not require the broker himself to engage in business full-time. 1980 Op. Att'y Gen. No. 80-22.

Relicensing of out-of-state broker returning to state. — An individual who has been licensed as a resident real estate broker in the state of New Mexico, and who has established a residence in another state or country may subsequently return to New Mexico and be relicensed as a real estate broker upon payment of the necessary fee and filing of the required bond and meeting any other needed requirements without applying for and taking a broker's examination as required of applicants who have not previously been licensed as real estate brokers, provided that the real estate board in its discretion desires to waive the examination. 1958 Op. Att'y Gen. No. 58-186.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 12 Am. Jur. 2d Brokers §§ 21, 24, 26, 27, 29.

12 C.J.S. Brokers §§ 16, 20.

N.M. Stat. Ann. § 61-29-12

61-29-12. Refusal, suspension or revocation of license for causes enumerated.

A. In accordance with the Uniform Licensing Act [Chapter 61, Article 1 NMSA 1978], the commission may refuse to issue a license or may suspend, revoke, limit or condition a license if the applicant or licensee has, by false or fraudulent representations, obtained a license or, in performing or attempting to perform any of the actions specified in Chapter 61, Article 29 NMSA 1978, an applicant or licensee has:

(1) made a substantial misrepresentation;

(2) pursued a continued and flagrant course of misrepresentation; made false promises through agents, salespersons, advertising or otherwise; or used any trade name or insignia of membership in any real estate organization of which the licensee is not a member;

(3) paid or received a rebate, profit, compensation or commission to or from any unlicensed person, except the licensee's principal or other party to the transaction, and then only with that principal's written consent;

(4) represented or attempted to represent a qualifying broker other than a qualifying broker with whom the licensee is associated without the express knowledge and consent of that qualifying broker;

(5) failed, within a reasonable time, to account for or to remit any money coming into the licensee's possession that belongs to others, commingled funds of others with the licensee's own or failed to keep funds of others in an escrow or trustee account or failed to furnish legible copies of all listing and sales contracts to all parties executing them;

(6) been convicted in any court of competent jurisdiction of a felony or any offense involving moral turpitude;

(7) employed or compensated, directly or indirectly, a person for performing any of the acts regulated by Chapter 61, Article 29 NMSA 1978 who is not a licensed qualifying broker or an associate broker; provided, however, that a qualifying broker may pay a commission to a qualifying broker of another state as provided in Section 61-29-16.1 NMSA 1978;

(8) failed, if a qualifying broker, to place as soon after receipt as is practicably possible, after securing signatures of all parties to the transaction, any deposit money or other money received by the qualifying broker in a real estate transaction in a custodial, trust or escrow account, maintained by the qualifying broker in a bank or savings and loan institution or title company authorized to do business in this state, in which the funds shall be kept until the transaction is consummated or otherwise terminated, at which time a full accounting of the funds shall be made by the qualifying broker. Records relative to the deposit, maintenance and withdrawal of the funds shall contain information as may be prescribed by the rules of the commission. Nothing in this paragraph prohibits a qualifying broker from depositing nontrust funds in an amount not to exceed the required minimum balance in each trust account so as to meet the minimum balance requirements of the bank necessary to maintain the account and avoid charges. The minimum balance deposit shall not be considered commingling and shall not be subject to levy, attachment or garnishment. This paragraph does not prohibit a qualifying broker from depositing any deposit money or other money received by the qualifying broker in a real estate transaction with another cooperating broker who shall in turn comply with this paragraph;

(9) failed, if an associate broker, to place as soon after receipt as is practicably possible in the custody of the associate broker's qualifying broker, after securing signatures of all parties to the transaction, any deposit money or other money entrusted to the associate broker by any person dealing with the associate broker as the representative of the qualifying broker;

(10) violated a provision of Chapter 61, Article 29 NMSA 1978 or a rule promulgated by the commission;

(11) committed an act, whether of the same or different character from that specified in this subsection, that is related to dealings as a qualifying broker or an associate broker and that constitutes or demonstrates bad faith, incompetency, untrustworthiness, impropriety, fraud, dishonesty, negligence or any unlawful act; or

(12) been the subject of disciplinary action as a licensee while licensed to practice real estate in another jurisdiction, territory or possession of the United States or another country.

B. An unlawful act or violation of Chapter 61, Article 29 NMSA 1978 by an associate broker, employee, partner or associate of a qualifying broker shall not be cause for the revocation of a license of the qualifying broker unless it appears to the satisfaction of the commission that the qualifying broker had guilty knowledge of the unlawful act or violation.

History: 1953 Comp., § 67-24-29, enacted by Laws 1959, ch. 226, § 11; 1965, ch. 304, § 7; 1981, ch. 22, § 3; 1983, ch. 261, § 5; 1984, ch. 56, § 1; 1987, ch. 90, § 5; 1991, ch. 13, § 1; 2001, ch. 163, § 8; 2005, ch. 35, § 14; 2011, ch. 85, § 6; 2022, ch. 39, § 97.

ANNOTATIONS

The 2022 amendment, effective May 18, 2022, clarified that the New Mexico real estate commission is required to follow the provisions of the Uniform Licensing Act for disciplinary matters; and in Subsection A, added "In accordance with the Uniform Licensing Act".

The 2011 amendment, effective July 1 2011, permitted the payment of a commission to a qualified broker or another state if, pursuant to Section 61-29-16.1 NMSA 1978, the nonresident broker has entered in to a transaction-specific contract with a resident broker and has consented to being sued in New Mexico.

The 2005 amendment, effective January 1, 2006, permits the real estate commission to issue license with limitations or conditions if the applicant or licensee has obtained a license by false or fraudulent representations or performed or attempted to perform the prescribed acts specified in this section and provides that an unlawful act or violation of Chapter 61, Article 29 NMSA 1978 by an associate broker is not cause for revocation of a qualifying broker’s license unless the qualifying broker had guilty knowledge of the act.

The 2001 amendment, effective July 1, 2001, inserted the Subsection A and B designations and redesignated former Subsections A to K as Paragraphs A(1) to A(11); deleted "real estate" preceding "broker" throughout the section; in Subsection A, substituted "refuse to issue or may suspend" for "refuse a license for cause or suspend", and "an applicant or licensee has:" for "is deemed to be guilty of:" in the introductory language; substituted "with whom he is associated" for "with whom he is licensed" in Paragraph (4), inserted "after securing signatures of all parties to the transaction" in Paragraphs (8) and (9); deleted "in the interests of the public and in conformance with the provisions of Chapter 61, Article 29 NMSA 1978" from the end of Paragraph (10); substituted "committed an act" for "any other conduct" in Paragraph (11); and added Paragraph (12).

The 1991 amendment, effective June 14, 1991, substituted "in Chapter 61, Article 29 NMSA 1978" for "herein" in the introductory paragraph; substituted the language beginning with "unlicensed person" for "person other than his principal" at the end of Subsection C; and made minor stylistic changes in Subsections E and K.

Revocation for "substantial misrepresentations". — The commission may suspend a license on the grounds that the licensee misrepresented to prospective buyers both the size of the property in question and the age of the roof. Wolfley v. Real Estate Comm'n, 1983-NMSC-064, 100 N.M. 187, 668 P.2d 303.

If the subjects of misrepresentations on application forms are material, i.e., "substantial misrepresentations", the real estate commission can, absent intervening equities, revoke the license even though there is no actual or intentional fraud. Padilla v. Real Estate Comm'n, 1987-NMSC-056, 106 N.M. 96, 739 P.2d 965.

The test of whether a misrepresentation is substantial is if it operates as an inducement to the real estate commission to do that which it should not otherwise have done. Padilla v. Real Estate Comm'n, 1987-NMSC-056, 106 N.M. 96, 739 P.2d 965.

Where a license to sell real estate was revoked for false or fraudulent representations in applications with respect to unpaid liens or judgments, but the real estate commission's findings and conclusions did not resolve in any meaningful way whether licensee intended to deceive and to induce the commission to act in reliance upon a misrepresentation of fact known by him to be untrue, and there were no specific findings and conclusions by the commission to afford the supreme court a clear understanding that the decision was based upon false representations relevant and material to facts bearing upon the good repute and competence of the licensee in the public interest, the cause was remanded to the commission with express directions to enter proper findings of fact and conclusions of law, together with a final order. Padilla v. Real Estate Comm'n, 1987-NMSC-056, 106 N.M. 96, 739 P.2d 965.

Substantial evidence to support commission's suspension of broker's license based on Paragraph A(5). Elliott v. N.M. Real Estate Comm'n, 1985-NMSC-078, 103 N.M. 273, 705 P.2d 679.

Broker to have knowledge of building code and zoning ordinances. — It is incumbent upon the broker to have a general knowledge of the building code and the zoning ordinances which deal with the particular property being offered for sale or which is being purchased. Amato v. Rathbun Realty, Inc., 1982-NMCA-095, 98 N.M. 231, 647 P.2d 433.

Nonresident broker may share in commission. — This section modifies Sections 61-29-1 and 61-29-16 NMSA 1978 to the extent that a nonresident broker may, in a limited situation, share in a commission. He may only do so, however, through cooperation with a New Mexico licensed broker. Hayes v. Reeves, 1977-NMSC-092, 91 N.M. 174, 571 P.2d 1177.

Generally, as to establishing custodial, trust or escrow accounts. — No regulation of the real estate commission requires a custodial, trust or escrow account prior to the receipt of funds appropriate for deposit in such account. McCaughtry v. N.M. Real Estate Comm'n, 1970-NMSC-143, 82 N.M. 116, 477 P.2d 292.

Jurisdiction where landowner claims acting as broker. — Under Section 61-29-2 NMSA 1978 if a landowner represents to either the buyer or seller that he is acting as a broker, the real estate commission has jurisdiction over the transaction. Poorbaugh v. N.M. Real Estate Comm'n, 1978-NMSC-033, 91 N.M. 622, 578 P.2d 323.

Hiring of note broker for sale of real estate contract. — Because the seller of a real estate contract, who hired a note broker to handle the sale, was not acting as a real estate broker during the sale, the commission lacked jurisdiction to revoke the seller's license for misrepresentation. Vihstadt v. Real Estate Comm'n, 1988-NMSC-003, 106 N.M. 641, 748 P.2d 14.

Applicability of Paragraph A(3) prohibition. — The prohibition of Subsection C (now Paragraph A(3)) is applicable to a broker or salesman representing the seller of real estate giving the purchaser trading stamps, free down payments on the property, moving costs, etc., when it can be shown that the real estate broker or salesman gave one or more of the items listed to the purchaser of the property as an integral part of a transaction involving the purchase and sale of the property. 1963 Op. Att'y Gen. No. 63-28 (rendered prior to 1991 amendment).

Payment of commission to buyer who is not principal prohibited. — Subsection C (now Paragraph A(3)) precludes a licensed salesman or broker from paying any portion of his commission to a buyer who is not his principal, regardless of disclosure to the principal of the arrangement. 1981 Op. Att'y Gen. No. 81-25 (rendered prior to 1991 amendment).

In order to properly make sense of the reference in Subsection C (now Paragraph A(3)) to "paying," and to give effect to the legislative intent indicated by that reference, the words "to or" may be read into that subsection preceding "from any person." 1981 Op. Att'y Gen. No. 81-25 (rendered prior to 1991 amendment).

Criminal Offender Employment Act to be followed in suspension or revocation action. — The provisions of the Criminal Offender Employment Act must be followed by the real estate commission in any action by the commission to suspend or revoke a broker's or salesperson's license because of a conviction of a felony or misdemeanor involving moral turpitude. 1982 Op. Att'y Gen. No. 82-02.

Law reviews. — For article, " 'To Purify the Bar': A Constitutional Approach to Non-Professional Misconduct," see 5 Nat. Res. J. 299 (1965).

For 1984-88 survey of New Mexico administrative law, 19 N.M.L. Rev. 575 (1990).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 12 Am. Jur. 2d Brokers §§ 10, 21 to 29.

Bias of members of license revocation board, 97 A.L.R.2d 1210.

Suspension or revocation of real estate broker's license on ground of discrimination, 42 A.L.R.3d 1099.

Revocation or suspension of real estate broker's license for violation of statutes or regulations prohibiting use of unlicensed personnel in carrying out duties, 68 A.L.R.3d 530.

Real estate broker's liability for misrepresentations as to income from, or earnings of, property, 81 A.L.R.3d 717.

Validity and application of regulation prohibiting licensed real-estate broker from negotiating sale or lease with owner known to have exclusive listing agreement with another broker, 17 A.L.R.4th 763.

Real-estate broker's rights and liabilities as affected by failure to disclose agreement to loan purchase money to purchaser, 17 A.L.R.4th 788.

Revocation or suspension of real estate broker's license for conduct not connected with business as broker, 22 A.L.R.4th 136.

Real estate broker's or agent's misrepresentation to, or failure to inform, vendor regarding value of vendor's real property, 33 A.L.R.4th 944.

Grounds for revocation or suspension of license of real-estate broker or salesperson, 7 A.L.R.5th 474.

12 C.J.S. Brokers §§ 16, 19, 21 to 24.

N.M. Stat. Ann. § 61-29-15

61-29-15. Maintenance of list of licensees.

The commission shall maintain a list of the names and addresses of all licensees licensed by it under the provisions of Chapter 61, Article 29 NMSA 1978, and of all persons whose license has been suspended or revoked within that year, together with such other information relative to the enforcement of the provisions of Chapter 61, Article 29 NMSA 1978 as it may deem of interest to the public. The commission shall also maintain a statement of all funds received and a statement of all disbursements, and copies of the statements shall be mailed by the commission to any person in this state upon request.

History: 1953 Comp., § 67-24-32, enacted by Laws 1959, ch. 226, § 14; 2001, ch. 163, § 10.

ANNOTATIONS

The 2001 amendment, effective July 1, 2001, substituted "Maintenance" for "Publication" in the section heading; substituted "The commission shall maintain a list" for "The commission shall, at least annually, publish"; and substituted "maintain" for "prepare" in the last sentence.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 12 C.J.S. Brokers § 14.

N.M. Stat. Ann. § 61-29-16

61-29-16.1 NMSA 1978;