§ 37-51-321 — Unprofessional Conduct -- Sanction Of License

37-51-321 . Unprofessional conduct -- sanction of license. (1) The following practices, in addition to the provisions of 37-1-316 and as provided in board rule, are considered unprofessional conduct for an applicant or a person licensed under this chapter:
(a) intentionally misleading, untruthful, or inaccurate advertising, whether printed or by radio, display, or other nature, if the advertising in any material particular or in any material way misrepresents any property, terms, values, policies, or services of the business conducted. A broker who operates under a franchise agreement engages in misleading, untruthful, or inaccurate advertising if in using the franchise name, the broker does not incorporate the broker's own name or the trade name, if any, by which the office is known in the franchise name or logotype. The board may not adopt advertising standards more stringent than those set forth in this subsection (1)(a).
(b) making any false promises of a character likely to influence, persuade, or induce;
(c) pursuing a continued and flagrant course of misrepresentation or making false promises through agents or salespersons or any medium of advertising or otherwise;
(d) use of the term "realtor" by a person not authorized to do so or using another trade name or insignia of membership in a real estate organization of which the licensee is not a member;
(e) failing to account for or to remit money coming into the licensee's possession when the money belongs to others;
(f) accepting, giving, or charging an undisclosed commission, rebate, or profit on expenditures made for a principal;
(g) acting in a dual capacity of broker and undisclosed principal in a transaction, including failing to disclose in advertisements for real property the person's dual capacity as broker and principal;
(h) guaranteeing, authorizing, or permitting a person to guarantee future profits that may result from the resale of real property;
(i) offering real property for sale or lease without the knowledge and consent of the owner or the owner's authorized agent or on terms other than those authorized by the owner or the owner's authorized agent;
(j) inducing a party to a contract of sale or lease to break the contract for the purpose of substituting a new contract with another principal;
(k) accepting employment or compensation for appraising real property contingent on the reporting of a predetermined value or issuing an appraisal report on real property in which the broker or salesperson has an undisclosed interest;
(l) as a broker or a salesperson, negotiating a sale, exchange, or lease of real property directly with a seller or buyer if the broker or salesperson knows that the seller or buyer has a written, outstanding listing agreement or buyer broker agreement in connection with the property granting an exclusive agency to another broker;
(m) soliciting, selling, or offering for sale real property by conducting lotteries for the purpose of influencing a purchaser or prospective purchaser of real property;
(n) as a salesperson, representing or attempting to represent a real estate broker other than the employer without the express knowledge or consent of the employer;
(o) failing voluntarily to furnish a copy of a written instrument to a party executing it at the time of its execution;
(p) unless exempted, paying a commission in connection with a real estate sale or transaction to a person who is not licensed as a real estate broker or real estate salesperson under this chapter;
(q) intentionally violating a rule adopted by the board in the interests of the public and in conformity with this chapter;
(r) failing, if a salesperson, to place, as soon after receipt as is practicably possible, in the custody of the salesperson's supervising broker, deposit money or other money entrusted to the salesperson in that capacity by a person, except if the money received by the salesperson is part of the salesperson's personal transaction;
(s) demonstrating unworthiness or incompetency to act as a broker or a salesperson;
(t) conviction of a felony;
(u) failing to meet the requirements of 37-56-105 through 37-56-107 or the rules adopted by the board governing property management while managing properties for owners;
(v) failing to disclose to all customers and clients, including owners and tenants, the licensee's contractual relationship while managing properties for owners;
(w) failing to maintain continuous professional liability insurance coverage that meets the requirements of 37-51-325 : or
(x) aiding or abetting a person or organization in taking an adverse action against a licensee or a license applicant because of speech or conduct that is not made in the licensee's or license applicant's professional capacity that, had the adverse action been taken by a state actor, the speech or conduct would have been protected under the free exercise clause or the free speech clause of the Montana constitution or the United states constitution.
(2) (a) It is unlawful for a broker or salesperson to openly advertise property belonging to others, whether by means of printed material, radio, television, or display or by other means, unless the broker or salesperson has a signed listing agreement from the owner of the property. The listing agreement must be valid as of the date of advertisement.
(b) The provisions of subsection (2)(a) do not prevent a broker or salesperson from:
(i) including information on properties listed by other brokers or salespersons who will cooperate with the selling broker or salesperson in materials dispensed to prospective customers; or
(ii) hosting advertisements on a website under the control or apparent control of a broker or salesperson for which the advertisements are posted on the website by the owner or landlord of the property for sale or rent, as long as the broker or salesperson does not perform on behalf of the owner or landlord of the property any services for which a license as a broker or salesperson is required.
(3) The license of a broker or salesperson who violates this section may be sanctioned as provided in 37-1-312 .

Legislative History

En. Sec. 14, Ch. 250, L. 1963; amd. Sec. 5, Ch. 261, L. 1969; amd. Sec. 188, Ch. 350, L. 1974; R.C.M. 1947, 66-1937; amd. Sec. 2, Ch. 188, L. 1979; amd. Sec. 1, Ch. 246, L. 1993; amd. Sec. 2, Ch. 565, L. 1995; amd. Sec. 5, Ch. 170, L. 1999; amd. Sec. 2, Ch. 294, L. 2001; amd. Sec. 3, Ch. 389, L. 2005; amd. Sec. 6, Ch. 27, L. 2017; amd. Sec. 2, Ch. 358, L. 2019; amd. Sec. 2, Ch. 250, L. 2023; amd. Sec. 6, Ch. 381, L. 2023; amd. Sec. 15, Ch. 482, L. 2023.