Law Book - Arizona Department of Real Estate

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No. 2005.07 No. 2005.07 Short Title: Department Investigation of Cases Involving Civil Litigation This substantive policy statement is advisory only. A substantive policy statement does not include internal procedural documents that only affect the internal procedures of the agency and does not impose additional requirements or penalties on regulated parties or include confidential information or rules made in accordance with the Arizona Administrative Procedure Act. If you believe that this substantive policy statement does impose additional requirements or penalties on regulated parties you may petition the agency under ARS 41-1033 for a review of the statement. Description of Practice/Procedure: A Complainant’s filing of a civil suit has no bearing on whether the Department will pursue an alleged violation of a statute or rule within the Department’s jurisdiction. The Department shall commit the appropriate resources to investigate possible violations. The Department monitors and regulates real estate licensees, but does not determine a licensee’s civil liability to third parties. A finding by the Department that a violation warranting administrative action did or did not occur, is not dispositive of liability and does not create any presumption regarding whether or not civil liability exists. The Department’s investigations shall not be utilized for the purpose of circumventing the Arizona Rules of Civil Procedure or as a means of discovery of evidence for use in civil litigation. The Department will not intentionally place itself in the position of providing discovery and building a prima facie case for a Complainant, only to have the Complainant use the Department’s investigative file as evidence in a civil suit. It is not the Department’s role to assist a Complainant to develop a case that will assist them pursuing damages. The Department shall not delay an investigation to await the outcome of a civil court proceeding. Such a delay may discourage or financially inhibit a Complainant’s pursuit of a civil cause of action. Such a delay might also encourage a licensee to assert the Department’s inaction as an argument in the licensee’s favor. Authority: The Department’s authority to investigate alleged or perceived violations of Arizona Revised Statutes Title 32, Chapter 20, and Title 4, Chapter 28 of the Arizona Administrative Code, is found at A.R.S. § 32-2108. Policy Program: Enforcement. Effective Date: 6/18/99; Revised & Renumbered 5/28/04; Renumbered 4/01/05. No. 2005.06 Short Title: Electronic Record Keeping APPENDIX: SUBSTANTIVE POLICY STATEMENTS This substantive policy statement is advisory only. A substantive policy statement does not include internal procedural documents that only affect the internal procedures of the agency and does not impose additional requirements or penalties on regulated parties or include confidential information or rules made in accordance with the Arizona Administrative Procedure Act. If you believe that this substantive policy statement does impose additional requirements or penalties on regulated parties you may petition the agency under ARS 41-1033 for a review of the statement. Description of Practice/Procedure: Licensees of the Department (brokers, property management companies and cemetery owners) are required to retain copies of transactions. 1 Brokers and management companies are also required to keep employment records. 2 Records pertaining to trust accounts, if kept electronically, must be able to be reconstructed ‘‘...in theevent of destruction of electronic data.’’ A licensee may retain the required transaction and employment records by electronic means, providing that all of the following conditions are met: The records are maintained in a manner allowing reconstruction in the event of destruction of electronic data. The records can be produced, at the broker’s expense, in legible, written form (‘‘hard copy’’) upon request by the Commissioner, or the Commissioner’s representative, for auditing, inspection, or investigation purposes. The electronic records are exact duplicates of the original. The stored records are legible. Authority: Brokers are required to retain records pursuant to A.R.S. §§ 32-2151(B)(2), 32-2151.01(A), 32-2151.01(H), 32-2175(A), 32-2175(B) and 32-2194.06(A) and (B). A.R.S. § 32-2151(B)(2) requires that trust 146
147 APPENDIX: SUBSTANTIVE POLICY STATEMENTS No. 2005.04 account records that are maintained electronically be able to be reconstructed. A.R.S. § 32-2194.03(E) requires a cemetery owner or the owner’s agent to keep and maintain records of all sales transactions and monies received, and authorizes examination of the books and records of the cemetery owner or agent. A.R.S. §§ 32-2108(A), 32-2175(H) and 32-2194.06 (B) authorize the Commissioner to examine the books and records of any natural person or entity engaged in the business or acting in the capacity of a broker, salesperson or developer. Pursuant to A.R.S. § 32-2107, the Commissioner is authorized to administer the Department and the provisions under its jurisdiction. Policy Program: Licensing Effective Date: 8/15/2000; Revised & Renumbered 5/28/04; Renumbered 4/01/05. 1 Transaction records, referenced herein, include records of all real estate, cemetery, time-share and membership camping transactions handled by or through a broker, property management firm, or cemetery owner or agent, including contracts and addenda, earnest money receipts, closing statements showing all receipts, disbursements and adjustments, lease contracts, employment agreements (including property management, listing, and buyer-broker agreements), residential and nonresidential leasing or rental agreements. 2 Employment records include forms evidencing hiring, severing (terminating), or license renewal of employed licensees. No. 2005.05 Short Title: Access to Arizona Real Estate Law Book on the World Wide Web This substantive policy statement is advisory only. A substantive policy statement does not include internal procedural documents that only affect the internal procedures of the agency and does not impose additional requirements or penalties on regulated parties or include confidential information or rules made in accordance with the Arizona Administrative Procedure Act. If you believe that this substantive policy statement does impose additional requirements or penalties on regulated parties you may petition the agency under ARS 41-1033 for a review of the statement. Description of Practice/Procedure: A.R.S. § 32-2123(E) states, in part: ‘‘Each person licensed pursuant to this article, whether the license is active or inactive, shall have available for the licensee’s use a current copy of the department’s statutes, rules and annotations pertaining to real estate laws.’’ The Commissioner considers unrestricted access to the World Wide Web, and thus to the on-line edition of the Arizona Real Estate Law Book on the Department’s Web site at http://www.re.state.az.us, to satisfy the requirements of this statute. ‘‘Unrestricted access’’ is defined as access to the Department Web Site at any time without the permission or assistance of others. Authority: Pursuant to A.R.S. § 32-2107, the Commissioner has charge of the Department and authority to administer the laws and rules adopted pursuant to Arizona Revised Statutes, Title 32, Chapter 20. Policy Program: Education Effective Date: December 6, 1999; Renumbered 5/28/04; Renumbered 4/01/05. No. 2005.04 Short Title: Unlicensed Assistants This substantive policy statement is advisory only. A substantive policy statement does not include internal procedural documents that only affect the internal procedures of the agency and does not impose additional requirements or penalties on regulated parties or include confidential information or rules made in accordance with the Arizona Administrative Procedure Act. If you believe that this substantive policy statement does impose additional requirements or penalties on regulated parties you may petition the agency under ARS 41-1033 for a review of the statement. Description of Practice/Procedure: In looking at the issue of unlicensed assistants, various aspects must be considered, including what activities the individual will perform and how the individual is paid. If an unlicensed assistant is paid on any basis that relies on the ultimate sale of a property, then that person must be licensed. An unlicensed assistant in the employ of a licensed real estate broker may: Perform telephone duties, to include calls to:
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Page 186 and 187: TIMESHARES —Cont’d Public repor
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Law Book - Arizona Department of Real Estate

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