Case Information
*1 THEA~TORNEY GENERAL OFTEXAS
Gerald C. Mann
Hon. M. .O. Flowers Opinion No. O-1925 Rer Are companies such as John Seoretary 0r State Austin, Texas Hancock Mutual and Jef’rerson
Standard subject to the Real Attention or Mr. K. King Estate Dealers License Aot? Dear Sir:
Your request for an opinion on the above stated ques- tion has been received by this department. reads as follows:
Your letter ItIt is the desire of this office to secure an opinion from the Attorney General as to whether companies such as John Hancock Mutual and Jefferson standard. etc., are subject to the Real Estate Deal- ers Liceise Act.
“These companies operate their own loan and sales department, paying straight salaries instead of commissions.~
You further inform us that Jefferson Standard is a regular life, health and accident insurance company, organ$zed under Chapter 3, Title 78 of Vernon’s Civil Annotated Statutes. Companies such as John Hancock Mutual and the Jefferson Stand- ard make loans upon first liens upon real estate ana occaslon- ally it Is necessary for such companI.es to foreclose such liens and sell,the property obtained by such foreclosures. Article 4818, Vernon’s Civil Annotated Statutes, pro-
viaas in part:
“Mutual life insurance companies shall invest their funds in accordance with the provisions of the third ohapter of this title, concerning investments of life Insurance oompanies in this State;. . ..” Article 472.5, Vernon’s Civil Annotated Statutes, set- ting out the seaurities in which a life insurance company organ- ized under the laws of this State may invest or loan money, provides among other things:
Hono M. 0. Flowers, page 2 (O-1925)
” . . ..It may also make loans upon rirst liens upon real estate, the title to which is valid and the value of which is rmty (40%) per cent more than the amount loaned thereon; or upon first liens upon leasehold ments situated estates in real property and improve& thereon, the title to which is valid, and the leasehold has not less than thirty (30) years to run before explratlonj provided that the duration of any loan upon such leasehold estates shall not exoesd a period or ten (10) years; or upon any obUgatlon secured collaterally by any suah rlrst liens. a .n
House Bill No. 17r as passed by the 46th Legislature, commonly known and tit ad as “The Real Estate Dealers License Act’1 reads in part as followsr
‘lSeo. 2, The following terms shall unless the have the roilowing mean- context otherwise Indicates,
Ings:
‘I (a) e (1) e The term ‘Real Estate Dealer’ shall include every person ,or company, other than a sales- man and licensed and registered attorneys, who for ano her f or others for compensation or other valuable consideration, or who with the intention or in the expectation or upon the promise of receiving or col- lectlng compensation or other valuable consideration, or rents or list’s ror sale, sells, exchanges, buys or attempts, or agrees to nego iate a e sa e, 3. o%rers, exchange, purchase, or rental of an estate or inter- emst in real estate, or collects, or offers, “r at- tempts, or agrees to collect rent for the use of offers, or attempts, real estate , or negotiates, or agrees to negotiate a loan, secured or to be se- cured by mortgage or other lnaumbrance upon or trans- fer of real estate! or auctions, or offers, or attempts, or agrees to auction any real estate; or appraises, or offers, or attempts, or agrees to ap- praise any real estate! Itself, or who advertises, or holds
himself, or themselves out as engaged in the
business of selling, exchanging, buying, renting, leasing real estate, or assists or directs in the or the negotiation or closing procuring of prospects, of any/transaction which does or is calculated to re- sult in the sale, exchange, or renting of any real estate or who buys or offers to buy, sells se 1, or otherwise deals in options on or ofrers to i real estate or in the Improvements thereon.
Hon. M. 0. Flowers, page 3 (0-19,225)
“(2). The term ‘Real Estate Dealer’ shall also include any person or company employed by or on behalr of the owner or owners of lots or other parcels of real estate at a stated salary, or upon a oommission, or upon a salary aa .oom- mission basis, or otherwise, to sell such real estate In any parts thereof, in lots or other par- cels and who shall sell or exchange, or offers, or a tempts, or agrees to negotiate the sale or c exchange of any such lot or parcel of real es- tate; provided however, if the owner of lots or other parce i s is engaged in the business of buying selling exchanging, renting of properly and hoidlng himself out as a full part-time dealer in real estate, then such person employed by said owner may be licensed as a sales- man of said owner if said owner has been licensed as a dealer in real estate.
” (3) . The term (Real Estate Dealer’ shall include any person or company engaged in the busi- ness of buying, selling, exchanging, leasing renting 0r property on his or its own accoun 4 ana out as a full or part- holding himself or ltselr time dealer in real estate.
” (b) . The term ‘Real Estate Salesman’ shall mean and include any person or company employed or engaged by or in behalf of a licensed real estate dealer to do deal in any act acts, or transactions set out and comprehended by the defi- nition of a ‘Real Batate Dealer’ In Seotlon 2, Subsection (a) of this Act.
“‘(0). If the sense requires it, words in tense include the present the future tense; in the masculine gender, Include the feminine or neu-
in the singular number, Include the In plural number include the singu- may be read ‘or’; and Ior1 may “Sea. 3. The provisions of this Act shall not apply to and the terms ‘Real Estate Dealer’ and ‘Real E&ate Salesman I, as above deflned, shall not Include:
“(a). Any person or company who, as owner or lessor, shall perform any of the acts set out
[*] .
Hon. 14. 0. Flowers, page 4 (04925)
in Section 2, Subdivision (a) with reference to property owner or leased by them, to the regular employees thereof with reference to the property owner or leased by such pers.on or corn- pany where such acts are performed in the regu- lar course of, or as incident to, the management of such property and the investment therein, unless such person or company is engaged In the business of buying, selling, exchanging., leas- ing, or renting of property and holding himself or itselr out as a full or part-time dealer in real estate.
” (b) o Persons acting as an attorney in fact under a duly executed power of attorney from the owner authorizing the final consumma- tion by performance of any contract for the sale, leasfng, or exchange of ,real estate; services rendered by an attorney at law, recefver, trus- tee in bankruptcy, adminfstrator, or executor, or any person doing any of the acts speclfled in Section 2, Subdlvislon (a) ~of this Act under or- der of any court; a trustee acting under a trust agreement, deed of trust, or will, or the regu- lar salaried employees thereof.
“Cc) 0 Any person, partnership, or corpora- tion who has secured a license under Texas Se- curlties’ sion, Forty-fourth Legislature 0 Act, House Bill No. 521, Regular Ses-
Wet. 4. An one act set out in Section ‘2, Subdivision (a ‘; of this Act when performed ‘for another or others for compensation or valu- able consideration or who with the intention in the expeotation or upon the promise of receiv- ing or collecting a person or company performing, compensation shall constitute
offering or at- tempting to perform such act or acts, a real estate dealer or a real estate salesman within the meaning of this Act.”
The provisions of the above mentioned act do’not apply to, and the terms “Real Estate Dealer” and “Real Estate Salesman’* as above defined by the statute, do not include any person or company who, as owner or lessor perform any of the acts set out in Section 2, Subdivision (a3 with reference to property owned or leased by them, or to the regular employ- ees thereof with reference to the property owned or leased by such person or company where such acts are performed in the *5 Hon. M. 0. Flowers, page 5 (O-1925)
regular course of or as Incident to, the management of such property and the investment therein, unless such person or company is engaged in the business of buying, selling, changing, ex-
leasing, or renting of property and holding himself or itself out as a full or part-time dealer in real estate. We believe that the buying, selling, exchanging, renting of property obtained under foreclosure proceedings by the companies above named or like companies would be acts per- formed in the regular course of, or as Incident to, the man- agement of such property and the investment therein.
Therefore, you are respectfully advised that it Ls the opinion of this department that the John Hancock Mutual Insurance Company and the Jefferson Standard Life, Health and Accident Insurance Company and like companies when engaged in the above mentioned acts would not be subject to the Real Es- tate Dealers License Act.
Trusting that the foregoing fully answers your in- quiry, we remain
Very truly yours ATTORNEY GENERAL OF TEXAS By /s/ Ardell Williams Ardell Williams, Ass&stant APPROVED FEB 16, 1%
/s/ Gerald C. Mann
ATTORNEY GENERAL OF TEXAS
APPROVED: OPINION COMMITTEE
BY: BWB,CHAIRMAN
AW:AW:wb