§ 442-H — Rules of the secretary of state

§ 442-h. Rules of the secretary of state. 1. The secretary of state,\nand not the state real estate board established under section four\nhundred forty-two-i of this article, shall adopt such rules and\nregulations as the secretary of state may determine are necessary for\nthe administration and enforcement of this section.\n 2. (a) If, after a public hearing and a reasonable investigation, the\nsecretary of state determines that the owners of residential real\nproperty within a defined geographic area are subject to intense and\nrepeated solicitations by real estate brokers and salespersons or others\nto place their property for sale with such real estate brokers or\nsalespersons, or otherwise to sell their property, and that such\nsolicitations have caused owners to reasonably believe that property\nvalues may decrease because persons of different race, ethnic, social,\nor religious backgrounds are moving or are about to move into the\nneighborhood or geographic area, the secretary of state may adopt a\nrule, to be known as a nonsolicitation order, directing all real estate\nbrokers, salespersons and other persons regularly engaged in the trade\nor business of buying and selling real estate to refrain from soliciting\nresidential real estate listings or otherwise soliciting the sale of\nresidential real estate within the subject area. Each area subject to\nsuch an order shall be bounded or otherwise specifically defined in the\norder. The nonsolicitation order shall be subject to such terms and\nconditions as the secretary of state may determine are, on balance, in\nthe best interest of the public, including but not limited to the\naffected owners and licensees. A nonsolicitation order may prohibit any\nor all types of solicitation directed towards particular home-owners,\nincluding but not limited to letters, postcards, telephone calls,\ndoor-to-door calls, and handbills. Every nonsolicitation order shall\ncontain a provision setting forth the day, month and year that the order\nshall become effective, as well as the day, month and year that the\norder shall expire. A nonsolicitation order shall not be effective for\nmore than five years. However, a nonsolicitation order and the\nboundaries of the area where it applies may be re-adopted or amended\nfrom time to time in accordance with the procedures set forth herein.\n (b) No real estate broker shall establish a new principal office or\nbranch office within any geographic area which is the subject of a\nnonsolicitation order without prior approval from the secretary of\nstate. The secretary of state may deny any application for the\nestablishment or relocation of a principal office or branch office if\napproval of the application would cause the total number of principal\nand branch offices within the subject area to exceed the total number of\nprincipal and branch offices that were licensed within the area on the\ndate the nonsolicitation order became effective.\n 3. (a) If the secretary of state determines that some owners of\nresidential real property within a defined geographic area are subject\nto intense and repeated solicitation by real estate brokers and\nsalespersons to place their property for sale with such real estate\nbrokers or salespersons, or are subject to intense and repeated\nsolicitation by other persons regularly engaged in the trade or business\nof buying and selling real estate to sell their real estate, the\nsecretary of state may adopt a rule establishing a cease and desist\nzone, which zone shall be bounded or otherwise specifically defined in\nthe rule. After the secretary of state has established a cease and\ndesist zone, the owners of residential real property located within the\nzone may file an owner's statement with the secretary of state\nexpressing their wish not to be solicited by real estate brokers,\nsalespersons or other persons regularly engaged in the trade or business\nof buying and selling real estate. The form and content of the statement\nshall be prescribed by the secretary of state. After a cease and desist\nzone has been established by the secretary of state, the secretary of\nstate shall provide public notice on its website of such zone, shall\npublish notice of such zone at least once annually in a newspaper of\ngeneral circulation in the area affected by the cease and desist zone,\nand shall provide such further public notice of such cease and desist\nzone as the secretary of state deems necessary to maximize awareness to\nowners of residential real property located within the cease and desist\nzone that they may file a statement pursuant to this paragraph. After a\ncease and desist zone has been established by the secretary of state, no\nreal estate broker, salesperson or other person regularly engaged in the\ntrade or business of buying and selling real estate shall solicit a\nlisting from any owner who has filed a statement with the secretary of\nstate if such owner's name appears on the current cease and desist list\nprepared by the secretary of state. The prohibition on solicitation\nshall apply to direct forms of solicitation such as the use of the\ntelephone, the mail, personal contact and other forms of direct\nsolicitation as may be specified by the secretary of state.\n (b) The secretary of state shall compile a cease and desist list for\neach zone established pursuant to paragraph (a) of this subdivision. In\naddition to such other information as the secretary of state may deem\nappropriate, each cease and desist list shall contain the name of each\nowner who has filed an owner's statement with the secretary, as well as\nthe address of the property within the zone to which the owner's\nstatement applies. The secretary of state shall send to each owner who\nhas filed an owner's statement a written acknowledgement of the\nsecretary of state's receipt thereof and a pamphlet explaining to the\nowner his or her rights in connection therewith and the procedures and\ntime limits applicable to the filing of complaints for violations. The\nsecretary of state shall allow an owner who files, or on behalf of whom\nis filed, a complaint or other report of a violation of a cease and\ndesist rule ninety days in which to perfect a complaint by submitting\nsuch other or further information or documents as the secretary of state\nmay require. The secretary of state shall print a list for each zone.\nEach list shall be revised and reprinted at least annually on or before\nDecember thirty-first and shall be made available to the public and to\nreal estate brokers at a reasonable price to be set by the secretary of\nstate and approved by the director of the division of the budget.\nAdditions or deletions shall be made to each list only at the time the\nlist is reprinted, and the secretary of state shall not issue amendments\nor addenda to any printed list.\n (c) No rule establishing a cease and desist zone shall be effective\nfor longer than five years. However, the secretary of state may re-adopt\nthe rule to continue the cease and desist zone for additional periods\nnot to exceed five years each. Whenever a rule establishing a cease and\ndesist zone shall have expired or shall have been repealed, all owner's\nstatements filed with the secretary of state pursuant to that rule shall\nalso expire. However, an owner may file a new statement with the\nsecretary of state if a new rule is adopted establishing a cease and\ndesist zone containing the owner's property. Once the boundaries of a\ncease and desist zone have been established by rule of the secretary of\nstate, the boundaries may not be changed except by repeal of the\nexisting rule and adoption of a new rule establishing the new\nboundaries.\n 4. (a) Each real estate broker shall institute standardized operating\nprocedures for the prerequisites prospective homebuyers must meet prior\nto receiving any services. Such standardized operating procedures shall\ninclude but not be limited to the following:\n (i) whether prospective clients shall show identification;\n (ii) whether an exclusive broker agreement is required;\n (iii) whether pre-approval for a mortgage loan is required; and\n (iv) any other such standardized operating procedures as the secretary\nof state shall determine by regulation and upon notice and public\nhearing.\n (b) Real estate brokers shall date stamp, notarize and post such\nstandardized operating procedures on any publicly available website and\nmobile device application they maintain, shall make a copy of such\nprocedures available to the public upon request at their office\nlocations, and shall maintain a file of such standardized operating\nprocedures while the broker's license is active. Any website or mobile\ndevice application maintained by a team or a real estate salesperson\nshould also have the brokers' policies posted or have a direct link from\nsuch website or mobile device application to the brokers' website or\nmobile device application. If any alterations are made to the\nstandardized operating procedures subsequent to such posting, real\nestate brokers shall date stamp, notarize and post such new standard\noperating procedures on any publicly available website or mobile device\napplication they maintain within thirty days, and archive such\nalterations. Any broker or salesperson operating under a brokerage\nlicense that fails to adhere to such operating procedures shall be\nsubject to the penalties imposed by section four hundred forty-one-c of\nthis article.\n (c) Any time a real estate broker is required to renew their license\nthey must affirm to the department of state that they are in compliance\nwith the requirements of this subdivision related to standardized\noperating procedures.\n