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NEBRASKA REAL ESTATE COMMISSION December 18, 2001Staybridge Suites Staybridge Room Lincoln, NE Opening Chairperson Gale convened a Meeting of the Nebraska Real Estate Commission at 9:05 a.m. on December 18, 2001, in the Staybridge Room of the Staybridge Suites, located at 2701 Fletcher Avenue in Lincoln, Nebraska. All of the members of the Real Estate Commission were present. Chairperson Gale noted that the Commission consisted of six members for this Meeting, because there was one vacancy to be filled, and that a quorum was present. Also present were Director Les Tyrrell, Deputy Director for Education Teresa Hoffman, Deputy Director for Enforcement Terry Mayrose, and Administrative Assistant Heidi Burklund. Abbie Widger, Special Assistant Attorney General and Counsel to the Commission, was present for the Stipulation and Consent Orders and the agency brochure, Title 302, and legislative items. Notice of Meeting (Adopt Agenda) Director Tyrrell presented a Public Notice and Proofs of Publication thereof relating to this Meeting, all of which are attached to and made a part of these Minutes. Chairperson Gale reported that all Commissioners had been notified of the Meeting simultaneously, in writing, and that a proposed Tentative Agenda accompanied the notification. Chairperson Gale pointed out to those in attendance that a APublic Copy@ of the materials being used during the Meeting was available to the public on the Counsel table in the Meeting Room, and that the procedures followed were in accordance with the Open Meetings Law. Chairperson Gale asked that guests sign the guest list.Director Tyrrell noted that Items 5c and 12a had been added since the Tentative Agenda was mailed to the Commissioners. After review of the Final Agenda, a motion was made by Wiebusch and seconded by Nigro to adopt the Final Agenda as presented. Motion carried with Johnson, Moline, Nigro, Shepard, Wiebusch, and Gale voting aye. Minutes of November 15, 2001 The Minutes of the Commission Meeting held on November 15, 2001, were considered. Commissioner Johnson noted that on page 9, Mr. Glenn =s date of licensure should be April 2001.After review, a motion was made by Johnson and seconded by Wiebusch to approve the Minutes as corrected. Motion carried with Johnson, Moline, Nigro, Shepard, and Wiebusch voting aye, and with Gale not participating or voting, not having been present at the Meeting. Receipts and Expenditures Report for November Director Tyrrell presented the Receipts and Expenditures Report for November 2001. A copy of said Report is attached to and made a part of these Minutes. With regard to the November Report, Director Tyrrell noted the following: Receipts Categories 7516 and 7517, Broker and Salesperson Renewal Fees, were down approximately $54,000 as of November 30. Renewals appeared to have picked up since then. Total receipts were down approximately $25-26,000 from the budgeted amount as of November 30. Expenditure Categories 4711, 4721, and 4751 were over the monthly budgeted amount, but under the budgeted year-to-date amount, because the bills for the ARELLO meeting hit a month late. The Cash Fund Balance as of November 30, 2001, was $536,847.63, which compared to a Cash Fund Balance of $549,889.55 on November 30, 2000. After discussion, a motion was made by Moline and seconded by Nigro to file the November Receipts and Expenditures Report for audit. Motion carried with Johnson, Moline, Nigro, Shepard, Wiebusch, and Gale voting aye. Renewal Report Director Tyrrell presented a Renewal Report, which showed renewals as of December 17, 2001. A copy of said Report is attached to and made a part of these Minutes. Director Tyrrell noted that the percentage of renewed licenses and the total renewal numbers were virtually the same as December 12, 2000. The report showed that renewals had picked up by December 17, 2001, and actual receipts should match the budgeted amount. No action was necessary on this Report. Specialized Registrations Director Tyrrell presented the Specialized Registrations Report, which included a Retirement Community Registration for The Village at Riverside Lodge, and Time-Share Registrations for Fairfield Branson at Mountain Vista and Vacation Village at Parkway. A copy of said Report is attached to and made a part of these Minutes. Following discussion, a motion was made by Moline and seconded by Nigro to approve the registrations as presented. Motion carried with Johnson, Moline, Nigro, Shepard, Wiebusch, and Gale voting aye. Non-Resident Licenses and Resident Licenses Issued to Persons Holding Licenses in Other States This Report, a copy of which is attached to and made a part of these Minutes, was presented by Deputy Director Hoffman and reported to be in order. After review, a motion was made by Moline and seconded by Wiebusch to ratify issuance of the licenses as set forth in the Report. Motion carried with Johnson, Moline, Nigro, Shepard, Wiebusch, and Gale voting aye. Examination Report for November Deputy Director Hoffman presented a Report relating to the real estate examinations administered during November 2001. A copy of said Report is attached to and made a part of these Minutes. After review, a motion was made by Moline and seconded by Wiebusch to ratify the November Report for the purpose of issuing licenses. Motion carried with Johnson, Moline, Nigro, Shepard, Wiebusch, and Gale voting aye. Real Estate Education Matters Continuing Education Activity Approval Deputy Director Hoffman presented for ratification the Continuing Education Activity Approval Report, which listed approvals for three continuing education activities. A copy of said Report is attached to and made a part of these Minutes. After discussion, a motion was made by Wiebusch and seconded by Johnson to ratify the Report. Motion carried with Johnson, Moline, Nigro, Shepard, Wiebusch, and Gale voting aye. Continuing Education Instructor Approval Deputy Director Hoffman presented for ratification the Continuing Education Instructor Approval Report, which listed approvals for three continuing education instructors. A copy of said Report is attached to and made a part of these Minutes. After discussion, a motion was made by Wiebusch and seconded by Moline to ratify the Report. Motion carried with Johnson, Moline, Nigro, Shepard, Wiebusch, and Gale voting aye. Pending Sworn Complaints and Investigative Matters Director Tyrrell presented a Summary Report of the pending complaints, which included a list of licensees presently under disciplinary action or on appeal. A copy of said Report is attached to and made a part of these Minutes. No action was necessary on this Report. The following Sworn Complaints and Investigative Matters were presented to the Commission: Complaint #2001-032 - Joseph Valenti vs. Michael Louis Riedmann & Thomas David Myers Prior to discussion of this matter, Commissioners Johnson and Nigro recused themselves, thereby nullifying any potential conflict of interest. Deputy Director Mayrose presented the alleged violations and investigative report to the Commission and, when necessary, answered questions on this matter. After being advised of the results of the investigation and discussion, a motion was made by Shepard and seconded by Wiebusch that the Complaint be set for Hearing on the alleged violations of Neb. Rev. Stat. ' 81-885.24(2) and (22). Motion carried with Moline, Shepard, Wiebusch, and Gale voting aye, and with Johnson and Nigro not participating or voting, having recused themselves, thereby nullifying any potential conflict of interest.Item B Complaint #2001-036 - Marty Burrier vs. Nan L. Mull Deputy Director Mayrose presented the alleged violations and investigative report to the Commission and, when necessary, answered questions on this matter. After being advised of the results of the investigation and discussion, a motion was made by Moline and seconded by Nigro that the Complaint be dismissed without prejudice. Motion carried with Johnson, Moline, Nigro, Shepard, Wiebusch, and Gale voting aye. Item C Complaint #2001-038 - William J. & Cindy C. Sarraillon vs. Vincent Muniz, Jr. Prior to discussion of this matter, Commissioner Johnson recused himself, thereby nullifying any potential conflict of interest. Deputy Director Mayrose presented the alleged violations and investigative report to the Commission and, when necessary, answered questions on this matter. After being advised of the results of the investigation and discussion, a motion was made by Moline and seconded by Wiebusch that the Complaint be set for Hearing on the alleged violations of Neb. Rev. Stat. ' 76-2418(1)(b) and Neb. Rev. Stat. ' 81-885.24(22), and that the Commission amend the Complaint regarding Neb. Rev. Stat. ' 76-2419. Motion carried with Moline, Nigro, Shepard, Wiebusch, and Gale voting aye, and with Johnson not participating or voting, having recused himself, thereby nullifying any potential conflict of interest.Item D Complaint #2001-039 - Tracy A. Lee vs. John Robert Miller Deputy Director Mayrose presented the alleged violations and investigative report to the Commission and, when necessary, answered questions on this matter. After being advised of the results of the investigation and discussion, a motion was made by Wiebusch and seconded by Nigro that the Complaint be set on the alleged violations of Neb. Rev. Stat. ' 81-885.24(24) and (29). Motion carried with Johnson, Moline, Nigro, Shepard, Wiebusch, and Gale voting aye.Item E Complaint #2001-040 - John R. & Candace W. Spurzem vs. Michele Colleen Schafer Deputy Director Mayrose presented the alleged violations and investigative report to the Commission and, when necessary, answered questions on this matter. After being advised of the results of the investigation and discussion, a motion was made by Moline and seconded by Nigro that the Complaint be dismissed without prejudice. Motion carried with Moline, Nigro, Shepard, Wiebusch, and Gale voting aye, and with Johnson voting nay. ' 81-885.24(22) and (29). Motion carried with Johnson, Moline, Nigro, Shepard, Wiebusch, and Gale voting aye. Item G Complaint #2001-033 - Beverly A. Moore vs. Debbie Lea Rerucha Deputy Director Mayrose presented the additional information requested by the Commission and, when necessary, answered questions on this matter. It was the consensus of the Commission to send a letter to the seller =s agent explaining that the agent=s disclosure needed to be attached to the Seller Property Condition Disclosure Statement in the future.Presentation of Stipulation and Consent Orders December 18, 9:30 a.m. - Complaints #2001-001 and 2001-029 Prior to discussion of this matter, Commissioner Moline recused himself, thereby nullifying any potential conflict of interest. Counsel Widger presented a Combined Stipulation and Consent Order for Gary A. Barnard, and a Stipulation and Consent Order for Kerri Ann Barnard, in the matter of Complaints #2001-001 and 2001-029 against Gary A. Barnard and Complaint 2001-002 against Gary A. Barnard and Kerri Ann Barnard Swoboda. Copies of said Orders are attached to and made a part of these Minutes. Mr. Barnard, Ms. Barnard Swoboda, and their attorney Tom Fitchett were present.Counsel Widger reviewed the circumstances involved and noted the provisions of the Orders, which had been signed by the Respondents. Mr. Barnard =s Order specified a one-year suspension of his broker=s license, with one month served on suspension and the remainder served on probation, and 12 hours of additional continuing education in the areas of disclosure, agency, and property exchanges. Ms. Barnard Swoboda=s Order specified a censure of her broker=s license, and six hours of additional continuing education in the area of agency.Counsel Widger noted that there was a lot of information in the Orders. Mr. Barnard =s Order involved multiple separate transactions, all of which happened within a relatively short time period after he acquired the real estate company. The majority of the problems involved details. Subsequent examinations show improvements had been made in office procedures. Mr. Barnard=s trust account balanced, and there were no allegations of misuse of funds. Counsel Widger said that Mr. Barnard=s completion of paperwork had improved substantially in the two years since the complaints were filed.Mr. Fitchett stated that Ms. Barnard Swoboda had been a new licensee at the time of the complaints, and had made some minor errors which were technical violations. If the incidents were looked at separately, they would not look as bad. Little things had added up to something of consequence. Mr. Fitchett said he thought corrections had been made. Her father, Mr. Barnard, had his broker =s license for less than a year when he purchased the business in January 1999. At that time, it was anticipated that the former designated broker would assist in running the business, but Mr. Barnard was left on his own. Mr. Fitchett noted that did not excuse the errors. All the violations took place between April and August, but involved serious matters, so they felt suspension was a proper remedy given the facts and circumstances of case. Mr. Fitchett noted that Mr. Barnard could not conduct licensed activity for 30 days, and would be on probation for the remaining 11 months. During the initial month, Ms. Barnard Swoboda would be able to carry on the business because she had a broker=s license.Commissioner Shepard asked how many licensees were affiliated with Mr. Barnard. Mr. Barnard said none except Ms. Barnard Swoboda. Commissioner Johnson asked if Mr. Barnard had been a salesperson prior to becoming a broker. Mr. Barnard said he was never a salesperson. He went to additional classes and became a broker. Commissioner Johnson asked when Mr. Barnard was licensed. Mr. Barnard said maybe July. Counsel Widger said Mr. Barnard was licensed on July 10, 1998, and became the designated broker in January 1999. Chairperson Gale asked when Ms. Barnard Swoboda was licensed. Counsel Widger said it was July 1999. Mr. Fitchett said that Ms. Barnard Swoboda =s violations would not be considered major violations, and would not have resulted in a complaint against her, if complaints had not been filed against Mr. Barnard.Chairperson Gale asked if allowing Ms. Barnard Swoboda six months to take her additional continuing education would allow her to cause complaints or be a risk to the public during that period. Counsel Widger noted that the public was always free to file complaints. Staff usually allowed six months for the person to find appropriate courses, which were sometimes difficult to schedule. Counsel Widger noted that the Commission could make the time frame shorter, if desired. Director Tyrrell noted that he had talked to Deputy Director Hoffman regarding the availability of continuing education activities, to avoid duplication of courses. This timeline was decided based on the time of year. Director Tyrrell noted that the Commission had no control over course schedules. Chairperson Gale asked how the Commission could assure that there were no additional problems until the courses were completed. Mr. Fitchett noted that Ms. Barnard Swoboda had just completed continuing education courses for renewal which had included agency. Director Tyrrell clarified that when Commission staff send an Order to a Respondent, a current continuing education list is included and marked to show specific courses which would meet the requirements. Staff make sure there is no overlap in the courses. Counsel Widger noted that the problems since the complaints had been very minor. Agency disclosure pamphlets were currently being filled out correctly, so those areas appeared to have been addressed. Commissioner Johnson asked if Mr. Barnard had conducted more than just a few transactions. Counsel Widger said yes, and there was only a small error rate on agency brochures. After discussion, a motion was made by Nigro and seconded by Wiebusch to enter into Ms. Barnard Swoboda =s Order as presented. Motion carried with Johnson, Nigro, Shepard, Wiebusch, and Gale voting aye, and with Moline not participating or voting, having recused himself, thereby nullifying any potential conflict of interest.After discussion, a motion was made by Wiebusch and seconded by Johnson to enter into Mr. Barnard =s Order as presented. Motion carried with Johnson, Nigro, Shepard, Wiebusch, and Gale voting aye, and with Moline not participating or voting, having recused himself, thereby nullifying any potential conflict of interest.Hearings No Hearings were scheduled for this Meeting. Informal Special Appearances December 18, 12:00 p.m. - Jimmy Dean Newman, Salesperson Applicant Director Tyrrell noted that Mr. Newman had been present, and that Mr. Newman withdrew his request for a Special Appearance. Director Tyrrell had explained to him that he could not sit for the examination without making an appearance before the Commission, and Mr. Newman said he understood. Consider Revisions to ABrokerage Relationships in Real Estate Transactions@ BrochureJerry Ahlvers of the Nebraska Realtors 7 Association presented an Exhibit which included the current proposed revisions to the ABrokerage Relationships in Real Estate Transactions@ brochure, as discussed at the previous Meeting. A copy of said Exhibit is attached to and made a part of these Minutes.Mr. Ahlvers said that the Nebraska Realtors 7 Association wanted separate brochures due to confusion. Most licensees work with either buyers and sellers or tenants and landlords. Mr. Ahlvers said there should probably still be a logo of some kind on the front, like the current brochure. Mr. Ahlvers began to review each proposed change and the reasoning behind them. Director Tyrrell noted that the Commission went through all the changes at last month=s Meeting, and proposed that Mr. Ahlvers just review the changes since then. Director Tyrrell also proposed that an article be placed in the March 2002 Commission Comment to let brokers know about the new brochures, but make the effective date May 2002 and allow brokers to use the new brochures earlier if desired. Chairperson Gale asked if it should be an issuance date or an approval date. Director Tyrrell said it would be good to allow a transition period, as the Commission had in the past, so that copies could be distributed to all brokers and an article could be placed in the Commission Comment. The Commission could make the effective date May 1, and that would be the deadline for brokers to begin using the revised brochures. Chairperson Gale said the Commission could come back to it.Commissioner Moline noted that, on the old brochure, it said Aapproved by the Nebraska Real Estate Commission@ at the top. The blanks were left for the brokers to show which specific services would be offered, and brokers had leeway in completing them. Commissioner Moline thought the brochure should say Athis disclosure is required by the Nebraska Real Estate Commission,@ since the Nebraska Real Estate Commission was not responsible for filling in the blanks. Mr. Ahlvers said he had no problem with that. Chairperson Gale asked if the Commission should strike the Nebraska Real Estate Commission reference. Commissioner Moline noted that this disclosure was required by the Nebraska Real Estate Commission. Counsel Widger suggested that the reference be moved down, and state that Athe information contained in this disclosure is required by the Nebraska Real Estate Commission.@ Mr. Ahlvers said the language placement should be at the top, since the brochure was distributed at the first substantial contact, so the public would know it was not a contract.Commissioner Moline asked if it should explain that the brochure was required at the first substantial contact at the top. Commissioner Wiebusch said she did not know how many people saw the front of the brochure, but they definitely saw the disclosure statement blanks. Mr. Ahlvers said the Nebraska Realtors 7 Association was trying to keep it simpler for the public to understand. Mr. Ahlvers said that, for most people at the first meeting, asking them to sign something is like asking them to make a commitment.Commissioner Wiebusch asked if there was a statement above the blank spaces that explained what was there. Mr. Ahlvers said each company should put an explanation there. Commissioner Wiebusch asked why it was not in the original. Director Tyrrell noted that the instructions to brokers on completing the brochure regarding services offered explained what information should be added. The wording Awill or will not provide the following services@ came from the law. Mr. Ahlvers said the Commission would not want generic language added to the form, because it was up to each broker which services to provide. Commissioner Moline noted that brokers have to use a different type face to show which language had been added. Mr. Ahlvers noted that a section was only filled in if the broker offered it, and putting in generic language would be more confusing to the public.Chairperson Gale asked for clarification that each broker added what they wanted to offer in the form =s blanks. Mr. Ahlvers said that was right. Brokers could not change the form, they could just add what they would offer. Chairperson Gale asked if the form was in rule and regulation. Director Tyrrell said no, that the law charged the Commission to prepare a form for use by licensees. It was not in rule and regulation on purpose, so that it could be changed quickly if needed, as an agenda item. Chairperson Gale asked if the form must be used by every broker, once it was approved. Director Tyrrell said that was correct, as of whatever effective date the Commission chose.Deputy Director Hoffman noted that the final version would also have the Commission seal on the front, that each section left an opportunity for the broker to offer the types of agency discussed, and that the broker could list services offered to unrepresented customers. The form made it clear that it was personalized to each firm. Commission staff offered camera-ready forms so that brokers could make good copies. Deputy Director Hoffman said that, when the brochure requirement was implemented, staff had published an article in the Commission Comment newsletter on how to personalize the form, and also distributed the form in the newsletter. Mr. Ahlvers said that, inside the first page of the brochure, in the acknowledgement section, the blank for the name of the company was stricken, and he did not know why. He felt the Commission needed to put the name of the company back in. The Commission should also make sure the licensee name is printed as well as signed, and the Nebraska Realtors 7 Association proposed putting it in at the bottom of the acknowledgement page.Commissioner Moline asked if two brochures would be required for each person. Mr. Ahlvers said yes. Commissioner Moline said there used to be an option to check one easy box for a listing presentation, and asked what was the thought process for the change. Mr. Ahlvers said the brochure was basically to tell if a licensee was going to represent or not represent a person. If a licensee visited with someone, that was different than showing or measuring property. This change was based on comments from the Nebraska Realtors 7 Association committee to make it simpler for the public. Mr. Ahlvers said he could see what Commissioner Moline meant.Commissioner Moline said the Commission had created a box for offering to list, which covered the licensee if he or she got the listing. If the box was checked during the listing presentation, the licensee was OK. With the proposed changes, a licensee would have to check 1a and get a written agreement, and check 2 for client, which would mean that licensees would now have to check two boxes instead of one. Director Tyrrell said that was correct. Commissioner Moline said that, in his opinion, it was a step backwards to have licensees check two boxes instead of one. Mr. Ahlvers said the committee had spent many hours to try to satisfy everyone on how to inform the public simply and have agents understand it too. If a contract was entered into, it would identify the services provided at that time. Mr. Ahlvers did not know of a simple way to do it. Commissioner Moline asked if the licensee =s telephone number should be included, if the name of the licensee and the name of the company were included. Mr. Ahlvers said that was not brought up in committee, but the individual would have the licensee=s business card.Mr. Ahlvers said licensees were just trying to comply with the law, and he did not know if buyers or sellers really understood the brochure at the first initial contact. The Nebraska Realtors 7 Association was trying to simplify it, but every time you read it and thought it was laid out, the simplicity went away. Chairperson Gale said it was a move toward clarity by separating the different types of transactions. The Commission was not trying to rewrite it for the industry, but was trying to not confuse the public. Chairperson Gale said it was hard to anticipate confusion, and noted that the Commission could change it at any time.Mr. Ahlvers asked why there would be a separate box for client or customer if a licensee was a limited seller =s agent. Commissioner Moline said he had no clue. Director Tyrrell said it was required by law. Mr. Ahlvers said it did not have it before. Director Tyrrell read the wording on the current brochure, and noted that the Nebraska Realtors7 Association changes eliminated Box 1. Director Tyrrell reported that there was 90% compliance on the current brochure last summer. Director Tyrrell said the Commission could leave the current brochure as is, so people who were comfortable with it could still use it, and the Commission could just make these two available for use also. Director Tyrrell said he did not know if the changes made the brochure simpler or more confusing.Mr. Ahlvers said that all licensees checked on the current brochure was #1 for attempting to get a listing. On the new brochure, the licensee would check the second blank in 1a, which said the same thing, and just did not clarify that there was no current buyer for the property. Director Tyrrell said a licensee would be a dual agent if he or she already had a buyer for a new listing, and would need to enter into a dual agency agreement. Mr. Ahlvers maintained that #1 just said the licensee did not have a buyer for the listing. Director Tyrrell said that he thought the changes were proposed because people were not checking the correct boxes in #1 of the current brochure, which was #2 in the proposed brochure. Director Tyrrell said the required agreements were usually included in the listing agreement. Mr. Ahlvers said that if a licensee was just offering to provide those services, the individual would not be a customer or client yet. Chairperson Gale said that the Commission was bogging down in details that should have been ironed out prior to bringing the proposed changes to the Commission. Chairperson Gale said the Commission wanted proposed changes to be presented as a relatively finished product. Chairperson Gale suggested that Mr. Ahlvers work with Director Tyrrell on the brochures, and bring them back ready for approval at the next Meeting. Any Commissioners with comments were to contact Director Tyrrell or Mr. Ahlvers, who would work on the changes outside this meeting. Commissioner Moline asked that staff send or fax the proposed changes to the Commissioners for their review and suggestions prior to the next meeting. Director Tyrrell said it would be sent because of the small print. Consider Revisions to Title 302 Jerry Ahlvers, representing the Nebraska Realtors 7 Association, presented an Exhibit which included proposed revisions to Title 302. A copy of said Exhibit is attached to and made a part of these Minutes.Mr. Ahlvers noted that the changes were primarily to clean up verbiage. Mr. Ahlvers reviewed the noted changes. Commissioner Nigro suggested that hail be added to #6 on page 5. It was the consensus of the Commission to make the change. Commissioner Moline noted that some of the items proposed to be deleted may be there to make buyers think of them, and find out about them before they bought a property. Commissioner Moline noted that having a sump pump discharge to a public sewer was illegal, and that exposed wiring was frequently found in older homes, and was dangerous. Since the Ado not know@ option was allowed, Commissioner Moline questioned why those items should be eliminated. Mr. Ahlvers said he could see keeping the items that were illegal, but asked where you would draw the line. Mr. Ahlvers questioned whether it was necessary to say how many vents were included in the heating system. Commissioner Moline noted that some items protected licensees, even if it was a hassle to fill out. Mr. Ahlvers said the Association had no problem one way or the other, and that they were just trying to keep it simple. Mr. Ahlvers noted that whether certain items were deleted or not was up to the Commission.Director Tyrrell noted that #9 on page 5 referred to any window which leaked, and only to thermopanes regarding broken seals. With the Association changes, it only referenced insulated windows, not all windows. Mr. Ahlvers said the committee felt the question addressed only insulated windows, and that thermopane was actually a brand name. Commissioner Johnson said the item should state Aany windows which leak, or any insulated windows with broken seals.@Chairperson Gale questioned deleting #12 on page 5, and used an example of a seller who had knowledge that a two-story chimney was tilting and drifting away from the house, which was not obvious but was expensive to fix. Chairperson Gale said that #12 would require disclosure of that fact. Commissioner Johnson noted that would be caught in #7 or #8. Mr. Ahlvers noted that the Association wanted to eliminate #8 in Section B on page 6 because the list of hazardous substances may be extensive, and would include White-Out. Director Tyrrell said that, in the Commission =s previous discussion of that item, the intent was to identify the EPA as the authority on hazardous material. Director Tyrrell thought that the EPA had since given the Department on Environmental Quality the authority to designate a list of hazardous substances for Nebraska.Commissioner Wiebusch questioned the deletion from #1 in Section C on page 6. Mr. Ahlvers said that would not affect the Association one way or the other. In #1-5 on page 7, Commissioner Wiebusch agreed that most people did not understand the term Aimprovements,@ but asked if other buildings on the property should be included.Commissioner Moline suggested that the wording for #14 on page 8 be changed because it would not include the kid =s cat, which was not owned by the property owner, or boarded animals. Discussion ensued on the fact that this item was a major consideration for some buyers. It was the consensus of the Commission to change the wording. Commissioner Nigro asked if an item on smokers should be added. Mr. Ahlvers said that a buyer could readily tell if a heavy smoker had lived in a home.Director Tyrrell noted that Abelief and knowledge@ in the Seller=s Certification was statutory language.Commissioner Wiebusch suggested keeping the language regarding the type of heating system in #6 of Section C on page 3. Commissioner Wiebusch said a seller would know from their bills what type of heating system they had. Mr. Ahlvers said that was no problem, and asked whether leaving that part in could allow the elimination of #11 on page 8. It was the consensus of the Commission that both items were needed. Mr. Ahlvers noted that, in the Buyer =s Acknowledgement section, #5 was an addition and 3 items were explaining the document to them. Director Tyrrell noted that, in general, it seemed the Association had attempted to turn the Seller Property Condition Disclosure form into an agreement. Director Tyrrell noted that it said they agreed to do this or that, or relied on this or that, and asked if it should say Asee an attorney before you agree to these terms.@ Counsel Widger said the acknowledgement should just acknowledge that the buyer received a copy of the form and read it. Counsel Widger said the Commission could add #5, to relieve the licensee of notification liability, but items 2, 3, and 4 could establish a contract, and could lead to more licensee civil liability and more litigation. Counsel Widger noted that these forms were laying around at all open houses, and were not always presented at the time of the offer.Commissioner Moline said that #4 really bothered him because it exempted the seller, which only left the licensee with liability. Counsel Widger questioned whether alleviating seller liability should be included in a Commission document, and reiterated that this was more like a contract. Chairperson Gale agreed that the form was an exoneration of any responsibility or liability for the seller, so the seller had no need to be fair or accurate on the form. Chairperson Gale noted that the form went way beyond an acknowledgement. Mr. Ahlvers said he would work with staff on the Commission =s concerns, but wanted to leave in #5. Director Tyrrell said he would work with the Nebraska Realtors7 Association to settle the issues raised during the Commission=s discussion. Commissioner Wiebusch and Commissioner Moline volunteered to help staff and the Nebraska Realtors7 Association to resolve the issues. A revised Exhibit will be brought back to the Commission.Consider Supporting Legislation Proposed by the Nebraska Realtors Association Which Would Amend the Seller Property Condition Disclosure Statute, the Agency Relationships Statute, and the Nebraska Real Estate License Act Perre Neilan, representing the Nebraska Realtors 7 Association, presented an Exhibit which consisted of a proposed draft of a legislative bill. A copy of said Exhibit is attached to and made a part of these Minutes. Mr. Neilan also distributed an Exhibit entitled AMain Components of REQ 1519 From the Nebraska Realtors7 Association.@ A copy of said Exhibit is attached to and made a part of these Minutes, denoted as Exhibit 15a.Director Tyrrell noted that the provisions in Exhibit 15 were exactly the same as the bill drafted in the Banking Committee during last year =s Legislative Session, without the two amendments on sexual orientation.A motion was made by Johnson and seconded by Moline that the Commission support the legislation. Commissioner Wiebusch noted that she had problems with Exhibit 15a, and did not support items B and C on it, but supported the bill. Motion carried with Johnson, Moline, Shepard, and Gale voting aye, and with Nigro and Wiebusch voting nay. Legislative Matters Proposed Legislative Bill - Removal of Errors and Omissions Director Tyrrell reported that Senator DiAnna Schimek will introduce the legislation on the first day of the 2002 Legislative Session. No action was necessary on this Report. Information Matters Errors and Omissions Insurance Loss Report - Third Quarter 2001 Director Tyrrell presented the Errors and Omissions Insurance Loss Report through September 30, 2001. A copy of said Report is attached to and made a part of these Minutes. Director Tyrrell noted that there was nothing unusual in the Report. No action was necessary on this Report. Trust Account Examination Evaluations - Third Quarter 2001 Director Tyrrell presented the Trust Account Examination Evaluation - Third Quarter 2001 Report. A copy of said Report is attached to and made a part of these Minutes. Director Tyrrell reported that comments were again very positive. No action was necessary on this Report. Future Meeting Dates January 24-25, 2002 - Staybridge Suites, Lincoln At 9:25 a.m. on December 18, Chairperson Gale declared a brief recess, and reconvened the Meeting at 9:34 a.m. At 10:23 a.m. on December 18, Chairperson Gale declared a brief recess, and reconvened the Meeting at 10:35 a.m. At 12:00 p.m. on December 18, Chairperson Gale declared a brief recess, and reconvened the Meeting at 12:11 p.m. At 1:09 p.m. on December 18, Chairperson Gale passed the gavel to Acting Chairperson Nigro, and was excused from the remainder of the Meeting. At 1:14 p.m. on December 18, there being no further business to come before the Commission, a motion was made by Moline and seconded by Wiebusch that the Meeting adjourn, and that everyone have a happy holiday season. Motion carried with Johnson, Moline, Shepard, Wiebusch, and Nigro voting aye, and with Gale absent and excused. I, Les Tyrrell, Director of the Nebraska Real Estate Commission, do hereby certify that the foregoing Minutes of the December 18, 2001, Meeting of the Nebraska Real Estate Commission were available for inspection on January 3, 2002, in compliance with Section 84-1413(5) R.R.S. 1943, of Nebraska. Respectfully submitted, Guests Signing the Guest List Jerry Ahlvers, Nebraska Realtors 7 Association, OmahaPerre Neilan, Nebraska Realtors7 Association, Lincoln Joe Gehrki, Omaha Beth Lube, Re/Max Real Estate, Omaha Harding Collis, NP Dodge, Omaha Gary Davis, Coldwell Banker, Omaha Kerri Ann Barnard Swoboda, Gateway Realty Resource Company Inc., Beatrice Gary A. Barnard, Gateway Realty Resource Company Inc., Beatrice Tom Fitchett, for Gary Barnard and Kerri Ann Barnard Swoboda, Lincoln Joe Valenti, CBSHOME, Omaha Doug Ruge, CBSHOME, Omaha John Liakos, for Michael Riedmann and Thomas Myers, Omaha Michael Matukewicz, for Michael Riedmann and Thomas Myers, Omaha Jimmy Dean Newman, Bellevue |