MREC RULES AND REGULATIONS
TABLE OF CONTENTS RULES AND REGULATIONS PART 1601 –
MISSISSIPPI REAL ESTATE COMMISSION
CHAPTER 1 – LICENSING
Rule 1.1 Applying for a license
Rule 1.2 Changing the state of a license Miss. Code Ann. §73-35-35
CHAPTER 2 – FEES Rule
2.1 Fees Rule
2.2 All fees are the same for both resident and nonresident licenses
Miss. Code Ann. §73-35-35
CHAPTER 3 – ADMINISTRATION/CONDUCTING BUSINESS
Rule 3.1 General Rules
Rule 3.2 Documents
Rule 3.3 Advertising
Rule 3.4 Earnest Money Miss. Code Ann. §73-35-35
Rule 3.5 REAL ESTATE TEAMS OR GROUPS
Miss. Code Ann. §73-35-3(4); §73-35-18(3); §73-35-21(d)
CHAPTER 4 – AGENCY RELATIONSHIP DISCLOSURE
Rule 4.1 Purpose
Rule 4.2 Definitions
Rule 4.3 Disclosure Requirements
Rule 4.4 Disclosure Exception
Miss. Code Ann. §73-35-35
CHAPTER 5 – COMPLAINT PROCEDURE
Rule 5.1 Notifications of complaints to the Commission
Rule 5.2 Definitions
Rule 5.3 Investigations of Complaints.
Rule 5.4 Results of Formal Investigation.
Rule 5.5 Commencement of Disciplinary Proceedings/Administrative
Hearings.
Rule 5.6 Informal Proceedings/Informal Resolutions; Resolution by Agreed
Order.
Rule 5.7 Pre-Hearing Procedures.
Rule 5.8 Administrative Hearings.
Rule 5.9 Appeals of Commission Orders/Rulings.
Miss. Code Ann. §73-35-35
CHAPTER 6 – CONTINUING EDUCATION
Rule 6.1 Approved Courses
Rule 6.2 Procedures and criteria for approval of courses
Rule 6.3 Qualifications of instructors
Rule 6.4 Administrative requirements
Rule 6.5 Advertising and solicitation
Rule 6.6 Relationship with providers
Rule 6.7 Suspension or revocation of approval Miss. Code Ann. §73-35-35
CHAPTER 7 – INSPECTION OF OFFERING FROM OUT-OF-STATE
Rule 7.1 Out-of-state developers Miss. Code Ann. §73-35-35
CHAPTER 8 – TIME SHARE
Rule 8.1 Licensing Rule 8.2 Definitions
Rule 8.3 Registration
Rule 8.4 Public offering statement
Rule 8.5 Amendment to registration information/public offering statement
Rule 8.6 Registration review time frame
Rule 8.7 Purchase contracts
Rule 8.8 Exchange program
Rule 8.9 Escrows and alternatives assurances
Rule 8.10 Insurance
Rule 8.11 Advertising and marketing
Rule 8.12 Management Rule 8.13 Liens
Rule 8.14 Owner referrals Miss. Code Ann. §73-35-35
CHAPTER 9 – ERRORS AND OMISSIONS INSURANCE COVERAGE
Rule 9.1 Administration Rule 9.2 Licensee status
Rule 9.3 Independent coverage Miss. Code Ann. §73-35-35
PART 1602 – ORAL PROCEEDING AND DECLARATORY OPINIONS
CHAPTER 1 – ORAL PROCEEDINGS
Rule 1.1 Scope
Rule 1.2
When oral proceedings will be scheduled on proposed rules
Rule 1.3 Request format
Rule 1.4 Notifications of oral proceedings
Rule 1.5 Presiding officer
Rule 1.6 Public presentation and participation
Rule 1.7 Conduct of oral proceeding Miss. Code Ann. §25-43-3-104 (Rev.
2010)
PART 1503 – DECLARATORY OPINIONS
CHAPTER 2 – DECLARATORY OPINIONS
Rule 2.1 Scope
Rule 2.2 Persons who may request declaratory opinions
Rule 2.3 Subjects which may be addressed in declaratory opinions
Rule 2.4 Circumstances in which declaratory opinions will not be issued
Rule 2.5 Written request required
Rule 2.6 Where to send requests
Rule 2.7 Name, address, and signature of requestor
Rule 2.8 Question presented
Rule 2.9 Time for board response
Rule 2.10 Opinion not final for sixty (60) days
Rule 2.11 Notice by board to third parties
Rule 2.12 Public availability of requests and declaratory opinions
Rule 2.13 Effect of a declaratory opinion
Miss. Code Ann. §25-43-2-103 (Rev. 2010)
PART 1603 – BOARD ORGANIZATION
CHAPTER 1 – BOARD MEMBERS
Rule 1.1 Members Miss. Code Ann.
§73-35-5 MISSISSIPPI REAL ESTATE COMMISSION RULES AND
REGULATIONS TITLE 30: PROFESSIONS AND OCCUPATIONS PART
1601: Mississippi Real Estate Commission
Part 1601 Chapter 1: Licensing
Rule 1.1 Applying for a License
A. An applicant for a broker’s license must pass the National Portion of the
broker’s examination with a grade of at least 75% and must pass the State
Specific Portion of the examination with a grade of at least 80%.
B. An applicant for a salesperson’s license must pass the National Portion of
the salesperson’s examination with a grade of at least 70% and must pass the
State Specific Portion of the examination with a grade of at least 75%.
C. An application fee must accompany the application and will not be
refunded after the applicant is scheduled for the examination.
D. The approved Examination Testing Provider will administer examination in
various locations in and near the State of Mississippi. Applicants will arrange
the time and place of their examination with the Testing Provider.
E. When an applicant is approved for either examination, applicant has two
months in which to take and pass both the National Portion and the State
Specific Portion of the examination.
If the applicant fails to appear for the examination within the two months
allowed, applicant’s fee will be forfeited, and their file closed. If the applicant
fails to pass the first examination, applicant will be allowed to take the next
examination with the payment of an additional fee to the Testing Provider.
If the applicant fails to appear for the second examination, fees will be
forfeited, and their file closed.
F. If a corporation has been chartered by the state of Mississippi, the license
will be issued in the corporate name except that no license will be issued for a
corporation, company, or trade name where there exists in that county or trade area a real estate broker or real estate agency having a substantially similar
name.
G. A real estate licensee of another state who desires to obtain a license
under this chapter shall be exempt from the examination provided the
examination administered in the other state is determined by the Commission
to be equivalent to such examination given in this state and provided that such
other state extends this same privilege or exemption to Mississippi real estate
licensees.
Real estate education courses obtained through sources (providers) other
than those set forth in Section 73-35-7 of the statute, but which are accepted
in the state where the applicant is licensed, may be accepted by the
Commission provided the state where the applicant is licensed has entered
into a reciprocal agreement with this state.
Source: Miss. Code Ann. §§ 73-35-35
Rule 1.2 Changing the Status of a License
A. To change a license from active to inactive status, licensee shall notify the
Commission in writing, shall insure that the license is returned to the
Commission and shall pay the appropriate fee.
A licensee who is on inactive status at time of renewal may renew the license
on inactive status by filing a renewal application and paying the renewal fee. A
broker who terminates a real estate business may place the business license
on inactive status.
To return to active status, a salesperson or broker/salesperson must file a
transfer application. A broker and/or a business license may be activated by
notifying the Commission by letter or transfer application including required
fee.
B. When a licensee wishes to transfer from one broker to another, the
transferring licensee must file a transfer application signed by the new broker
accompanied by the transfer fee and must furnish a statement that the
licensee is not carrying any listings or pertinent information belonging to the
former broker unless that broker so consents.
C. Any licensee who has entered active-duty military service due to draft laws
or national emergency shall, upon his return to civilian life and within twelve
(12) months after honorable discharge, be considered, so far as this
Commission is concerned, to have been continuously engaged in the real
estate business in the same capacity as when the licensee entered military
service.
Source: Miss. Code Ann. §§ 73-35-35
Part 1601 Chapter 2: Fees Rule 2.1
The following fees are set by the Commission in accordance with Section
73-35-17:
A. Application and one year’s use of license:
(1) Broker ………………………………………..$100.00
(2) Salesperson ………………………………………$100.00
B. Application for license as a real estate broker issued for partnership,
association, or corporation and one year’s use of license:
(1) Partnership, association or corporation………….$ 75.00
(2) Branch Office………………………………………$ 50.00
C. Renewal fees for two-year period (Maximum):
(1) Broker (individual)……………………………….$150.00
(2) Broker (partnership, association, corporation)……………….$150.00
(3) Salesperson ……………………………………$120.00
(4) Branch Office………………………………………$100.00
Penalty for late renewal within grace period – 100%
D. Changes:
(1) Place of business change (active license only) …$ 50.00
2) Each duplicate license…………………………$ 50.00
(3) Each transfer of license……………………… $ 50.00
(4) Status change from active to inactive status…………..$ 25.00
(5) Status change from inactive to active status…………..$ 50.00
E. Check charge:
(1) Each check returned not paid to the Commission………$ 25.00
Source: Miss. Code Ann. §§ 73-35-35 Rule 2.2
All fees are the same for both Resident and Nonresident Licenses.
Fees and monies payable to the Mississippi Real Estate Commission may be
by personal check, cash, cashier’s check or money order.
All personal checks shall be made payable to the Mississippi Real Estate
Commission. Any personal checks returned not paid or for any other reason
shall constitute justifiable grounds for refusing, suspending or revoking a
license.
Non-sufficient fund (NSF) checks, if not made good by renewal deadline, will
cause the licensee to be in non-renewal status and necessitates the payment
of a penalty (100%) by licensee. Source: Miss. Code Ann. §§ 73-35-35
Part 1601 Chapter 3: Administration/Conducting Business
Rule 3.1 General Rules
A. It shall be the duty of the responsible broker to instruct the licensees
licensed under that broker in the fundamentals of real estate practice, ethics
of the profession and the Mississippi Real Estate License Law and to exercise
supervision of their real estate activities for which a license is required.
B. A real estate broker who operates under the supervision of a responsible
broker must not at any time act independently as a broker.
The responsible broker shall at all times be responsible for the action of the
affiliated broker to the same extent as though that licensee were a salesperson and that affiliated broker shall not perform any real estate service
without the full consent and knowledge of his employing or supervising broker.
However, should the responsible broker agree that a broker under his
supervision may perform certain real estate services outside the responsible
broker’s supervision or direction, the responsible broker shall notify the
Commission in writing as to the exact nature of such relationship and the
names of the broker or brokers involved.
The responsible broker shall immediately notify the Commission in writing
upon the termination of such relationship.
C. A licensed Mississippi broker may cooperate with a broker licensed in
another state who does not hold a Mississippi license through the use of a
cooperative agreement. A separate cooperative agreement must be filed for
each property, prospective user or transaction with said writing reflecting the
compensation to be paid to the Mississippi licensed broker.
The listing or property management agreement for the Mississippi real
property shall in such cases remain in the name of the Mississippi licensed
broker.
The commissions or other compensation resulting from the
sale/rent/lease/property management or auction of the Mississippi real
property, and which are earned during the period the cooperative agreement
is in force shall be divided on a negotiable basis between the Mississippi
broker and the nonresident broker.
A responsible (principal) nonresident broker described herein is defined as an
active, licensed responsible real estate broker of another state who does not
possess an active responsible nonresident real estate broker’s license issued
by the Mississippi Real Estate Commission (MREC).
A Mississippi broker described herein is a responsible (principal) real estate
broker whose license is on active status and whose license was issued by
MREC either as a responsible resident Mississippi broker or as a responsible
nonresident Mississippi broker.
The responsible nonresident broker cannot place any sign on real property
located in the state of Mississippi without the written consent of the
cooperating responsible Mississippi broker.
When the consent is obtained, the sign of the responsible Mississippi broker
must be placed in a prominent place and in close proximity to the responsible
nonresident broker’s sign.
Any licensed responsible Mississippi broker assisting or cooperating in the
sale, lease, property management, rental or auction of real property within the
state of Mississippi with a responsible nonresident broker who fails or refuses
to list his or her name in such advertisement, or fails or refuses to cross-list
such property with him or her, in writing, shall be deemed in violation of
Section 73-35-11 of the Real Estate Broker’s License Act, and shall be subject
to a revocation or suspension of his or her license.
In such instance herein where a responsible Mississippi broker enters into a
cooperative agreement with a responsible nonresident broker pertaining to the
sale of real property within the state of Mississippi, the responsible Mississippi
broker must file two copies of the cooperating agreement with the Mississippi
Real Estate Commission.
D. A responsible broker must maintain an office and display the license
therein. If the broker has more than one office, the broker shall display a
branch office license in each branch office. The broker is responsible for the
real estate practices of those licensees.
E. No licensee shall pay any part of a fee, commission, or other compensation
received by such licensee in buying, selling, exchanging, leasing, auctioning
or renting any real estate except to another licensee through the licensee’s
responsible broker.
No licensee shall knowingly pay a commission, or other compensation to a
licensed person knowing that licensee will in turn pay a portion or all of that
which is received to a person who does not hold a real estate license.
A licensee who has changed to inactive status or who has transferred to
another responsible broker may receive compensation from the previous responsible broker if the commission was generated from activity during the
time that the licensee was under the supervision of that responsible broker.
F. Any licensee who fails in a timely manner to respond to official Mississippi
Real Estate Commission written communication or who fails or neglects to
abide by Mississippi Real Estate Commission’s Rules and Regulations shall
be deemed, prima facie, to be guilty of improper dealing.
G. A real estate broker or salesperson in the ordinary course of business may
give an opinion as to the sales price of real estate for the purpose of a
prospective listing or sale; however, this opinion as to the listing price or the
sale price shall not be referred to as an appraisal and must be completed in
compliance with Section 73-35-4 of the Real Estate Broker’s License Act and
must conform to the Standards established by the National Association of
Broker Price Opinion Professionals (NABPOP).
H. When an offer is made on property owned by a party with whom a broker
has entered into a listing agreement, such broker shall document and date the
seller’s personal acceptance or rejection of the offer and upon written request,
shall provide a copy of such document to the person making the offer.
I. A real estate licensee shall not be exempt from disciplinary actions by the
commission when selling property owned by the licensee.
Source: Miss. Code Ann. §§ 73-35-35
Rule 3.2 Documents
A. A real estate licensee shall immediately (at the time of signing) deliver a
true and correct copy of any instrument to any party or parties executing the
same.
B. All exclusive listing agreements shall be in writing, properly identify the
property to be sold, and contain all of the terms and conditions under which
the transaction is to be consummated; including the sales price, the
considerations to be paid, the signatures of all parties to the agreement, and a
definite date of expiration.
No listing agreement shall contain any provision requiring the listing party to
notify the broker of their intention to cancel the listing after such definite
expiration date.
An “Exclusive Agency” listing or “Exclusive Right to Sell” listing shall clearly
indicate in the listing agreement that it is such an agreement.
C. All exclusive buyer representation agreements shall be in writing and
properly identify the terms and conditions under which the buyer will rely on
the broker for the purchase of real estate; including the sales price, the
considerations to be paid, the signatures of all parties to the agreement, and a
definite date of expiration.
The buyer may terminate the agreement upon fifteen (15) calendar days
written notice to the buyer’s exclusive agent.
An Exclusive Buyer Representation agreement shall clearly indicate in the
body of the document that it is such an agreement.
D. In the event that more than one written offer is made before the owner has
accepted an offer, any other written offer received by the listing broker,
whether from a prospective purchaser or from another licensee cooperating in
a sale, shall be presented to the owner unless the listing broker has specific,
written instructions from the owner to postpone the presentation of other
offers. Broker should caution the seller against countering on more than one
offer at the same time.
E. Every real estate contact must reflect whom the broker represents by a
statement over the signatures of the parties to the contract.
F. No licensee shall represent to a lender or any other interested party, either
verbally or through the preparation of a false sales contract, an amount in
excess of the true and actual selling price.
G. A real estate broker must keep on file for three years following its
consummation, complete records relating to any real estate transaction.
This includes, but is not limited to listings, options, leases, offers to purchase,
contracts of sale, escrow records, agency agreements and copies of all
closing statements.
Source: Miss. Code Ann. §§ 73-35-35
Rule 3.3 Advertising
A. “Advertising” means the use of any oral, written, visual, printed or
electronically generated advertisement by a real estate licensee or other
person on behalf of a real estate licensee.
“Advertisement” means any oral, written, visual, printed or electronic media
advertisement and encompasses any correspondence, mailing, newsletter,
brochure, business card, for sale or for lease signage or sign rider,
promotional items, automobile signage, telephone directory listing, radio and
television broadcasts, telephone solicitation and electronic media to include
e-mails, text messaging, public blogs, social media- networking websites,
and/or internet displays.
B. A broker shall advertise in the name in which the license is issued. A broker
may use a descriptive term after the broker’s name to indicate the occupation
in which engaged, for example, “realty”, “real estate” or “property
management”.
If advertising in any other form, a partnership, trade name, association,
company or corporation license must be obtained prior to advertising in that
manner.
All advertising must be under the direct supervision and in the name of the
Principal Broker or in the name of the real estate Brokerage Firm and must
prominently display the name of the Principal Broker or the name of the
Brokerage Firm in such a manner that it is conspicuous, discernible and easily
identifiable by a member of the public.
Principal Brokers are required to verify and determine that their name or the
name of the Brokerage Firm is prominently displayed on all advertising and
that the name of any real estate licensee or any approved real estate Team or
Group is situated near the name of the Brokerage Firm.
The Broker or the Brokerage Firm must be identified by using the same size
or larger print as that of a Licensee a Team Member or a Team in all
advertising.
All advertising must include the telephone number of the Principal Broker or
the Brokerage Firm.
C. No Principal Broker or licensee sponsored by said broker shall in any way
advertise property or place a sign on any such property offering the property
for sale or rent without first obtaining the written authorization to do so by all
owners of the property or by any appointed person or entity who also has full
authority to convey the property.
D. When a licensee is advertising their own property for sale, purchase or
exchange which is not listed with a broker, the licensee must indicate that he
or she is licensed.
The disclosure of licensee’s status must be made in all forms of advertising
enumerated in Rule 3.3 (A), including the “for sale” sign.
In addition to disclosing their licensed status in all advertisements, licensees
are required to disclose their licensed status on all real estate contracts in
which they have an ownership interest.
A licensee shall not advertise to sell, buy, exchange, auction, rent or lease
property in a manner indicating that the offer to sell, buy, exchange, auction,
rent, or lease such property is being made by a private party who is not
engaged in the real estate business.
No advertisement shall be inserted by a licensee in any publication where only
a post office box number, telephone number, e-mail address or street address
appears.
Every licensee, when advertising real estate in any publication, shall indicate
that the party advertising is licensed in real estate; whether on active or
inactive status.
Source: Miss. Code Ann. §§ 73-35-35
Rule 3.4 Earnest Money
A. The responsible broker is responsible at all times for earnest money
deposits.
Earnest money accepted by the broker or any licensee for which the broker is
responsible and upon acceptance of a mutually agreeable contract is required
to deposit the money into a trust account prior to the close of business of the
next banking day.
The responsible broker is required to promptly account for and remit the full
amount of the deposit or earnest money at the consummation or termination
of transaction.
A licensee is required to pay over to the responsible broker all deposits and
earnest money immediately upon receipt thereof.
Earnest money must be returned promptly when the purchaser is rightfully
entitled to same allowing reasonable time for clearance of the earnest money
check. In the event of uncertainty as to the proper disposition of earnest
money, the broker may turn earnest money over to a court of law for
disposition. Failure to comply with this regulation shall constitute grounds for
revocation or suspension of license.
B. When the broker is the agent for the seller and for any reason the seller
fails or is unable to consummate the transaction, the broker has no right to
any portion of the earnest money deposited by the purchaser, even if a
commission has been earned.
The entire amount of the earnest money deposit must be returned to the
purchaser and the broker should look to the seller for compensation.
C. Accurate records shall be kept on escrow accounts of all monies received,
disbursed, or on hand.
All monies shall be individually identified as to a particular transaction.
Escrow records shall be kept in accordance with standard accounting
practices and shall be subject to inspection at all times by the Commission.
Monies received in a trust account on behalf of clients or customers are not
assets of the broker; however, a broker may deposit and keep in each escrow
account or rental account some personal funds for the express purpose of
covering service charges and other bank debits related to each account.
D. If a broker, as escrow agent, accepts a check and later finds that such
check has not been honored by the bank on which it was drawn, the broker
shall immediately notify all parties involved in the transaction.
Source: Miss. Code Ann. §§ 73-35-35
Rule 3.5 Real Estate Teams or Groups
A. A “Team or Group” shall mean a collective name used by two or more
active real estate licensees who represent themselves to the public as being
part of a single entity which is organized with the written approval of a
Principal Broker to perform licensable real estate activity. To qualify as a “Real
Estate Team or Group” the active real estate licensees must be working
together and each must
(a) work under the direct supervision of the same Principal Broker,
(b) work together on real estate transactions to provide real estate brokerage
services,
(c) must represent themselves to the public as being part of a Team or Group,
(d) must be designated by a specific team or group name, and
(e) must conduct all real estate activity from the primary office or branch office
where their individual licenses are displayed.
B. All Principal Brokers must have specific information on each Team
operating within their Brokerage and must register each Team with the Real
Estate Commission on forms provided for that purpose; to include a detailed
list indicating all approved Team names, the name of the Team Leader, the
name of the individual Team members and the name of any unlicensed
employee(s) of the Team.
The working list(s) should indicate the dates that Team members are added to
or deleted from any Team and should enable the Principal Broker and/or the
Real Estate Commission to determine Team membership at any point in time.
Adjustments to a Team should be filed with the Real Estate Commission
within ten (10) working day of any change and should be on forms provided by
the Commission.
C. All teams must appoint a Team Leader, who will be a Broker Associate with
a minimum of one years’ real estate experience and will have supervisory
responsibility (under the supervision of the Principal Broker) over the Team
members.
The Team Leader may be subject to disciplinary action for violations of the
Mississippi Real Estate Brokers Act by Team members under their
supervision.
D. A Team Name may, with the written approval of the Principal Broker and
the Team Leader, be used in any type of advertising.
Any individual whose name is displayed in any advertisement must be an
active licensee who is sponsored by the Principal Broker.
All advertising must fully comply with the guidelines established in MREC
Administrative Rule 3.3. Principal Brokers and Team Leaders must confirm
that the name of the Principal Broker or the Brokerage Firm and their
telephone number is prominently displayed on all advertising which includes
contact information about a Licensee, a Team Member or a Team.
The name of the Team must be situated near the name of the Brokerage Firm
and shall be identified with the same sized or smaller print as that of the
Brokerage.
E. Neither team names nor team advertising should suggest that the team is
an independent real estate brokerage. Team names must not include terms
such as (a) real estate brokerage, (b) realty, (c) real estate, or (d) company.
Source: Miss. Code Ann. §§ 73-35-3 (4); 73-35-18 (3); 73-35-21 (d) Part 1601
Chapter 4: Agency Relationship Disclosure
Rule 4.1 Purpose Consumers shall be fully informed of the agency
relationships in real estate transactions identified in Section 73-35-3.
This rule places specific requirements on Brokers to disclose their agency
relationship.
This does not abrogate the laws of agency as recognized under common law
and compliance with the prescribed disclosures will not always guarantee that
a Broker has fulfilled all of his responsibilities under the common law of
agency.
Compliance will be necessary in order to protect licensees from impositions of
sanctions against their license by the Mississippi Real Estate Commission.
Special situations, where unusual facts exist or where one or more parties
involved are especially vulnerable, could require additional disclosures not
contemplated by this rule.
In such cases, Brokers should seek legal advice prior to entering into an
agency relationship.
Source: Miss. Code Ann. §§ 73-35-3 Rule 4.2
Definitions
A. “Agency” shall mean the relationship created when one person, the
Principal (client), delegates to another, the agent, the right to act on his behalf
in a real estate transaction and to exercise some degree of discretion while so
acting.
Agency may be entered into by expressed agreement, implied through the
actions of the agent and or ratified after the fact by the principal accepting the
benefits of an agent’s previously unauthorized act.
An agency gives rise to a fiduciary relationship and imposes on the agent, as
the fiduciary of the principal, certain duties, obligations, and high standards of
good faith and loyalty.
B. “Agent” shall mean one who is authorized to act on behalf of and represent
another.
A real estate broker is the agent of the principal (client) to whom a fiduciary
obligation is owed. Salespersons licensed under the broker are subagents of
the Broker, regardless of the location of the office in which the salesperson
works.
C. “Client” shall mean the person to whom the agent owes a fiduciary duty. It
can be a seller, buyer, landlord, tenant or both.
D. “Compensation” is that fee paid to a broker for the rendering of services.
Compensation, when considered alone, is not the determining factor in an
agency relationship.
The relationship can be created regardless of whether the seller pays the fee,
the buyer pays the fee, both pay the fee or neither pays a fee.
E. “Customer” shall mean that person not represented in a real estate
transaction. It may be the buyer, seller, landlord or tenant.
F. “Disclosed Dual Agent” shall mean that agent representing both parties to a
real estate transaction with the informed consent of both parties, with written
understanding of specific duties and representation to be afforded each party.
There may be situations where disclosed dual agency presents conflicts of
interest that cannot be resolved without breach of duty to one party or another.
Brokers who practice disclosed dual agency should do so with the utmost
caution to protect consumers and themselves from inadvertent violation of
demanding common law standards of disclosed dual agency.
G. “Fiduciary Responsibilities” are those duties due the principal (client) in a
real estate transaction are:
(1) ‘Loyalty’ – the agent must put the interests of the principal above the
interests of the agent or any third party.
(2) ‘Obedience’ – the agent agrees to obey any lawful instruction from the
principal in the execution of the transaction that is the subject of the agency.
(3) ‘Disclosure’ – the agent must disclose to the principal any information the
agent becomes aware of in connection with the agency.
(4) ‘Confidentiality’ – the agent must keep private information provided by the
principal and information which would give a customer an advantage over the principal strictly confidential unless the agent has the principal’s permission to
disclose the information.
This duty lives on after the agency relationship is terminated.
(5) ‘Reasonable skill, care and diligence’ – the agent must perform all duties
with the care and diligence which may be reasonably expected of someone
undertaking such duties.
(6) ‘Full accounting’ – the agent must provide a full accounting of any money
or goods coming into the agent’s possession which belong to the principal or
other parties.
H. “First Substantive Meeting” shall be:
(1) In a real estate transaction in which the Broker is the agent for the seller,
first substantive meeting shall be before or just immediately prior to the first of
any of the following:
(a) Showing the property to a prospective buyer.
(b) Eliciting confidential information from a buyer concerning the buyers’ real
estate needs, motivation, or financial qualifications.
(c) The execution of any agreements governed by Section 73-35-3 of the
Mississippi Code of 1972 Annotated.
(2) For the seller’s agent, the definition shall not include:
(a) A bona fide “open house” or model home showing which encompasses
(1)(a) above only; however, whenever an event described in (1) (b) or (1) (c)
occurs, disclosure must be made.
(b) Preliminary conversations or “small talk” concerning price range, location
and property styles.
(c) Responding to general factual questions from a prospective buyer
concerning properties that have been advertised for sale or lease.
20
(3) In a real estate transaction in which the Broker is the agent for the buyer,
first substantive meeting shall be at the initial contact with a seller or a seller’s
agent or before or just immediately prior to the first of any of the following:
(a) Showing the property of a seller to a represented buyer.
(b) Eliciting any confidential information from a seller concerning their real
estate needs, motivation, or financial qualifications.
(c) The execution of any agreements governed by Section 73-35-3 of the MS
Code.
(4) For the buyer’s agent, the definition shall not include:
(a) A bona fide “open House” or model home showing which encompasses (3)
(a) above only; however, whenever an event described in (3) (b) or (3) (c)
occurs, disclosure must be made.
(b) Preliminary conversations or “small talk” concerning price range, location
and property styles.
(c) Responding to general factual questions from a prospective buyer
concerning properties that have been advertised for sale or lease.
I. “Single Agency” shall mean a broker who has chosen to represent only one
party to a real estate transaction. It may be either the buyer, seller, lessor or
lessee or any party in a transaction governed by Section 73-35-3. Source: §
Source: Miss. Code Ann. §§ 73-35-3
Rule 4.3 Disclosure Requirements
A. In a single agency, a broker is required to disclose, in writing, to the party
for whom the broker is an agent in a real estate transaction that the broker is
the agent of the party.
The written disclosure must be made before the time an agreement for
representation is entered into between the broker and the party.
This shall be on an MREC Agency Disclosure Form.
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B. In a single agency, a real estate broker is required to disclose, in writing, to
the party for whom the broker is not an agent, that the broker is an agent of
another party in the transaction.
The written disclosure shall be made at the time of the first substantive
meeting with the party for whom the broker is not an agent.
This shall be on an MREC Agency Disclosure Form. Brokers operating in the
capacity of disclosed dual agents must obtain the informed written consent of
all parties prior to or at the time of formalization of the dual agency. Informed
written consent to disclosed dual agency shall be deemed to have been timely
obtained if all of the following occur:
(1) The seller, at the time an agreement for representation is entered into
between the broker and seller, gives written consent to dual agency by signing
the Consent To Dual Agency portion of MREC Form A.
(2) The buyer, at the time an agreement for representation is entered into
between the broker and buyer, gives written consent to dual agency by
signing the Consent To Dual Agency portion of MREC Form A.
(3) The Broker must confirm that the buyer(s) understands and consents to
the consensual dual agency relationship prior to the signing of an offer to
purchase.
The buyer shall give his/her consent by signing the MREC Dual Agency
Confirmation Form which shall be attached to the offer to purchase.
The Broker must confirm that the seller(s) also understands and consents to
the consensual dual agency relationship prior to presenting the offer to
purchase.
The seller shall give his/her consent by signing the MREC Dual Agency
Confirmation Form attached to the buyer’s offer.
The form shall remain attached to the offer to purchase regardless of the
outcome of the offer to purchase.
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C. In the event the agency relationship changes between the parties to a real
estate transaction, new disclosure forms will be acknowledged by all parties
involved.
D. In the event one or more parties are not available to sign one or more of
the Disclosure Forms, the disclosure will be accomplished orally.
The applicable form will be so noted by the Broker and said forms will be
forwarded for signature(s) as soon as possible. Written electronic transmission
will fulfill this requirement.
E. In the event any party receiving a disclosure form requests not to sign that
form acknowledging receipt, the Broker shall annotate the form with the
following statement:
F. The terms of the agency relationship shall be ratified on all contracts
pertaining to real estate transactions.
G. The Commission mandated disclosure form may be duplicated in content
and size but not altered.
H. Completed Agency Disclosure Forms shall be maintained in accordance
with Rules and Regulations IV.
B (6). Source:
Source: Miss. Code Ann. §§ 73-35-3
Rule 4.4 Disclosure Exception
A licensee shall not be required to comply with the provisions of Section 3,
when engaged in transactions with any corporation, non-profit corporation,
professional corporation, professional association, limited liability company,
partnership, real estate investment trust, business trust, charitable trust, family
trust, or any governmental entity in transactions involving real estate.
Operating under this exception in no way circumvents the common law of
agency.
Source: Miss. Code Ann. §§ 73-35-35 Part 1601
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Chapter 5: Complaint Procedure
Rule 5.1 Notifications of Complaints to the Commission
A. All complaints submitted to the Commission shall be properly certified on
forms furnished by the Commission.
B. Every licensee shall, within ten days, notify the Real Estate Commission of
any adverse court decisions in which the licensee appeared as a defendant.
“A COPY OF THIS FORM WAS DELIVERED TO DATE . RECIPIENT
DECLINED TO ACKNOWLEDGE RECEIPT OF THIS FORM.”
C. It shall be mandatory for a responsible broker to notify the Commission if
the responsible broker has reason to believe that a licensee for whom the
broker is responsible has violated the Real Estate License Law or Rules and
Regulations of the Commission.
D. If a broker finds that a licensee licensed under that broker has been
operating independently or through some other broker, the broker shall notify
the Commission immediately and forward said individual’s license to the
Commission.
E. A Real Estate Commissioner shall avoid private interviews, arguments,
briefs or communication that may influence said Commissioner’s decision on
any pending complaints or hearings.
F. The expiration, suspension or revocation of a responsible broker’s license
shall automatically suspend the license of every real estate licensee currently
under the supervision of that broker.
In such cases, a licensee may transfer to another responsible broker.
Source: Miss. Code Ann. §§ 73-35-35 Rule 5.2 Definitions.
For Part 1601, Chapter 5 only, the following terms have the meanings
indicated:
A. Administrative Hearing: A formal hearing, with record made by a Certified
Court Reporter before a Commission Hearing Panel, or Administrative
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Hearing Officer, to consider and adjudicate disciplinary proceedings or other
matters pending on the administrative docket of the Commission.
B. Administrative Hearing Officer: A staff attorney employed by the Attorney
General’s office and designated by the Attorney General for the purpose of
holding hearings, hearing evidence and rendering decisions on matters
determined to be the subject of an administrative hearing.
C. Administrative Hearing Officer Option: The option for a
licensee/Respondent to elect to have his or her Administrative Hearing
conducted by an Administrative Hearing Officer instead of a Commission
Hearing Panel. When the Administrative Hearing Officer Option is elected, the
Administrative Hearing Officer shall have the same powers to conduct
administrative hearings and render decisions as would the Commission
Hearing Panel.
D. Agreed Order: A written agreement submitted by the licensee(s) and
Commission Staff resolving a Formal Complaint or other matter pending on
the administrative docket of the Commission.
E. Allegation: A claim or accusation of a violation of the Mississippi Real
Estate Commission License Law (the Real Estate Brokers License Law of
1954) and/or the Commission’s Administrative Rules and/or other applicable
laws governing the practice of real estate.
F. Appellant: A Respondent who makes an appeal of an adverse order, ruling
or decision of the Mississippi Real Estate Commission to a circuit court or
other appellate court, as may be provided by law.
G. Commission: The Mississippi Real Estate Commission, including its’
Commissioners and authorized employees or legal counsel acting on its
behalf.
H. Commissioners: The seated members of the Mississippi Real Estate
Commission as appointed by the Governor with the advice and consent of the
Senate pursuant to Miss. Code Ann. §73-35-5.
I. Commission Hearing Panel:
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The three to five-member panel of the Commissioners designated to hear
disciplinary proceedings, pursuant to Miss. Code Ann. §73-35-21.
Commissioners may be designated to sit on an Administrative Hearing Panel
on a rotating basis.
J. Complaint Counsel:
The attorney retained by the Commission to prosecute licensees and other
alleged violators of the Mississippi Real Estate Commission License Law, the
Commission’s Administrative Rules and/or other applicable laws governing the
practice of real estate.
K. Date of Service/Delivery: Date of Service means the delivery of a notice,
order, or other document by the Commission to a licensee or other party.
When delivery is by handdelivery or personal delivery, delivery is complete
when handed to a licensee or other party, or left at the office, dwelling house
or usual abode of the licensee or other party with some person of suitable age
and discretion.
Delivery by electronic means is complete when the licensee or party
acknowledges receipt. Delivery by mail is complete upon the date of mailing.
L. Due Process: Due Process in administrative/disciplinary proceedings
before the Mississippi Real Estate Commission means the provision of notice
to applicants or licensees of any alleged deficiencies or allegations of
violations of the Mississippi Real Estate Commission License Law,
Commission Administrative Rules or other applicable laws, and the
opportunity to respond and defend against those alleged deficiencies or
allegations of violations at an administrative hearing.
M. Executive Director:
The Administrator, Chief Executive Officer, or other designee employed by the
Commissioners to manage the day-to-day operations of the Commission.
N. Formal Complaint: A formal document charging a licensee with a violation
of the Mississippi Real Estate Commission License Law, and/or the
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Commission’s Administrative Rules, and/or other laws governing the practice
of real estate.
A Formal Complaint may result following the conclusion of an investigation of
a verified/sworn complaint submitted to the Commission or may be initiated by
the Commission.
O. Full Commission:
A majority or quorum of the seated Commissioners of the Mississippi Real
Estate Commission.
P. Hearing Officer:
The Chairman or designated Commissioner, or Administrative Hearing Officer,
who will preside over administrative hearings before the Commission and
exercise those powers as defined in the Administrative Rules of the
Mississippi Real Estate Commission.
Q. Informal Conference:
An informal interview or meeting, occurring at any time prior to the
Commission entering any order with respect to pending allegation(s), between
the Investigative Review Committee, Investigator(s), and the Respondent,
and/or Respondent’s legal counsel, to explore the issues involved in the
allegation(s) and to facilitate the disposition of the allegation(s).
R. Informal Resolution:
A written agreement submitted by the licensee(s) and Commission resolving
an allegation of violation(s), or other matter(s) pending on the administrative
docket of the Commission wherein the licensee has waived the service of a
Formal Complaint and Notice of Hearing.
S. Investigative Review Committee:
An intra-agency committee consisting of Commission Investigative Staff and
legal counsel, assembled for the purpose of reviewing allegations of violations
of the Mississippi Real Estate Commission License Law and/or the
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Commission’s Administrative Rules and/or other applicable laws governing the
practice of real estate.
T. Licensee:
Any individual licensed to practice by the Mississippi Real Estate Commission.
U. Notice of Hearing:
A written notification to a licensee to appear before the Commission, or
Administrative Hearing Officer when applicable, for an administrative hearing
at a scheduled place, date, and time.
V. Mississippi Real Estate Commission License Law: §§73-35-1, et seq., and
§§89-1-501, et seq., of the Mississippi Code of 1972, as amended.
W. Respondent:
A licensee or applicant against whom the Commission has initiated a formal or
informal action.
X. Time Period:
Unless indicated otherwise, when the period is stated in days or a longer unit
of time:
a. In computing any period of time prescribed or allowed by these rules, the
day of the event that triggers the period shall not be included.
b. Every day, including intermediate Saturdays, Sundays, and legal holidays
shall be included. However, when any time period prescribed or allowed is
less than seven (7) days, intermediate Saturdays, Sundays and legal holidays
shall be excluded in the computation.
c. The last day of the period so computed shall be included, unless it is a
Saturday, a Sunday, or a legal holiday, as set forth in Mississippi statute(s).
In such case, the period continues to run until the end of the next day that is
not a Saturday, Sunday, or legal holiday. In the event a legal holiday falls on a
Sunday, the next following day shall be a legal holiday.
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d. Whenever a licensee has the right or is required to do some act or take
some proceedings within a prescribed time period after the service of a notice,
order, or other document by the Commission that is served upon him or her by
mail, three (3) days shall be added to the prescribed period.
Y. Verified Complaint:
A written, sworn complaint alleging violations of the Real Estate License Law
submitted to the Commission for investigation, conclusion of which
investigation may result in dismissal of the verified complaint without further
action, or the issuance of a Formal Complaint by the Commission with notice
to appear at an administrative hearing.
Z. Work File:
Any and all documentation of a real estate transaction maintained by a
licensee. This includes, but is not limited to the following when applicable to a
real estate transaction:
1) Agency Agreements / Working With a Real Estate Broker forms (WWREB)
2) Contracts of Sale, with addendums
3) Closing documents / Closing Statements
4) Co-Op Agreements
5) Correspondence sent/received during the course of the transaction when
same may be reasonably considered material/germane to the transaction
6) Dual Agency Confirmation forms
7) Escrow records
8) Home Inspection Reports
9) Leases
10) Listing agreements, including extensions (must be in writing to be valid)
11) Offers to Purchase
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12) Options
13) Property Condition Disclosure Statements (PCDS), with Informational
Statement or Seller’s Statement of Exclusion, when applicable
14) Wood Destroying Insect Reports (WDIR)
Source: Miss. Code Ann. §73-35-23, §73-35-25, §73-35-35 (1972, as
amended).
Rule 5.3 Investigations of Complaints.
A. Upon receipt of a verified/sworn complaint, or other allegation of violation of
the Mississippi Real Estate Commission License Law, the Commission’s
Administrative Rules or other applicable laws, the Commission’s Investigative
Staff, with advice and consultation from Commission legal staff/counsel shall
make an initial determination whether the information justifies or warrants
further investigation.
A complaint or inquiry may be dismissed without further investigation based
on a determination of either:
1) Lack of Commission jurisdiction; or
2) No apparent violation of the Mississippi Real Estate Commission License
Law or the Commission’s Administrative Rules governing the practice ofreal
estate.
B. The Commission may initiate an investigation either:
1) In response to a written or verified/sworn complaint, or other information
received by the Commission alleging violation(s) of the Mississippi Real
Estate Commission License Law, the Commission’s Administrative Rules, or
other applicable laws; or
2) The Commission may initiate an investigation based on information
independently developed or corroborated by the Investigative Staff of the
Commission that has been reduced to writing, describing said information and
the acts or omissions constituting any alleged unprofessional conduct or
violations.
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Further investigation based upon information independently developed by the
Investigative Staff may commence after the written description of alleged
violation(s) has been approved in writing by the Administrator.
C. Upon commencement of an investigation, the Commission will provide
written notice to the applicable licensee(s) and their Responsible Broker of the
allegations of violations, including copy of any written or sworn/verified
complaint submitted to the Commission.
No Commissioner, administrator, employee, investigator, representative, agent
or attorney of the Commission shall communicate with a licensee in
connection with any preliminary or formal investigation associated with alleged
violations of licensing law or regulations prior to the delivery of written notice
to the licensee’s Responsible Broker.
D. Licensees will be required to submit their entire work file/documentation of
the real estate transaction(s) at issue, along with Affidavit, and his/her written,
notarized response to the allegations, within ten (10) days of the date of
service of written notice upon the licensee(s) and his/her Responsible
Broker(s).
1. The Affidavit submitted must certify that complete, accurate and true copies
of all documents germane to the real estate transaction under investigation
are being tendered to the Commission.
The Affidavit should be signed by the licensee(s) and signature(s) notarized.
2. The written response of the licensee(s) to the allegations submitted by the
complaining party must be signed by the licensee(s) with notarized signature.
E. Following receipt of the licensee’s file documentation with Affidavit and
sworn/written response to the allegation(s), said documentation and response
will be provided to the complaining party who initiated the
complaint/allegations against the licensee, when applicable, for response and
for verification of authenticity of transaction documents submitted by the
licensee(s).
F. After any response/rebuttal is received from the complaining party, the
response/rebuttal will be provided to the licensee(s) so that each party is fully
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aware of the complaining party’s allegations, and which documents are
considered germane to the Commission review and investigation.
The Commission may conduct interviews and written (signed) responses may
be requested from the parties for clarification.
G. The Commission is authorized to issue subpoenas for the attendance of
licensees and/or witnesses for interviews during the course of an
investigation, and for the production of documents and records.
H. During the course of any investigation, should information be received
which indicates acts or omissions on the part of any licensee or licensees not
originally the subject of the investigation which might constitute alleged
unprofessional conduct or violations, then this information and any alleged
charges will be reduced to writing describing said information and the acts or
omissions constituting alleged unprofessional conduct or violations.
Any new or expanded investigation or initiation of any Formal Complaint
against such new licensee(s) based upon such information will commence
after the written description of alleged violations has been approved in writing
by the Administrator.
Notice shall be provided to the Responsible Broker(s) and licensee(s) to be
investigated or charged. From and after that point, all provisions pertaining to
investigation of the original licensee(s) shall apply to the new licensee(s).
I. Licensees have, at all times, the right to retain and consult with legal
counsel. Any licensee represented by an attorney of record in proceedings
before the Commission shall be entitled to communication through such
attorney, and service of documents by the Commission shall be made upon
such attorney.
Source: Miss. Code Ann. § 73-35-21, §73-35-23, §73-35-35 (1972, as
amended)
Rule 5.4 Results of Formal Investigation.
A. Upon completion of the formal investigation, the Investigative Review
Committee will determine whether there is sufficient cause to believe that a
32
violation exists of the Mississippi Real Estate License Law, the Commission
Administrative Rules and/or other applicable laws governing the practice of
realestate.
1) Upon a determination of sufficient cause to believe that a violation exists,
the Investigative Review Committee shall refer the matter to Commission legal
staff for the issuance of a Formal Complaint and Notice of Hearing.
The Investigative Review Committee may also make a recommendation for
resolution of the matter upon terms to be offered to the licensee.
2) Upon a determination of no sufficient cause to believe that a violation
exists, the Investigative ReviewCommittee:
(a) Will recommend dismissal of the matter, subject to review and approval of
one (1) reviewing Commissioner and subsequent approval by the full
Commission; and
(b) Upon approval for dismissal, shall notify the Complainant/complaining
party and Respondent of the dismissaldecision.
B. In circumstances where Commission Investigative Staff reasonably believe
minor violations are established in the investigation, the matter may be
concluded, as the individual circumstances may warrant, by:
1. Dismissal with Letter of Caution, subject to approval by the full Commission
(not a reported disciplinary action); or
2. Informal Resolution with Letter of Reprimand or Suspension held in
abeyance, with or without Probation or continuing education courses, subject
to agreement and informed waiver by licensee of the issuance of a Formal
Complaint and Administrative Hearing, and approval by the full Commission.
C. A pending Formal Complaint may be resolved by an agreed settlement
proposal (Agreed Order) or other Informal Resolution disposition at any time
prior to an administrative hearing upon written agreement of the licensee(s)
and the Commission Staff, subject to approval of the full Commission at a
regularly scheduled Commission meeting.
Source: Miss. Code Ann. § 73-35-23, §73-35-35 (1972, as amended).
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Rule 5.5 Commencement of Disciplinary Proceedings/Administrative
Hearings.
A. If an allegation is not resolved informally or the Investigative Review
Committee determines that an allegation warrants the issuance of a Formal
Complaint, Commission staff may commence disciplinary proceedings by
issuing a Formal Complaint and Notice of Hearing.
B. A Respondent shall be notified of the administrative hearing at least fifteen
(15) days in advance of the date set for the hearing by written Notice of
Hearing.
The Formal Complaint shall set forth the charges and allegations against the
Respondent in sufficient detail to provide sufficient disclosure and notice of all
alleged violations of the Mississippi Real Estate License Law and/or the
Commission Administrative Rules and other applicable laws governing the
practice of real estate.
C. The Commission’s staff will serve the Formal Complaint and Notice of
Hearing on Respondent, with copy to the Responsible Broker, by:
1) Certified mail, postage pre-paid, to the last known address of the
Respondent on record with the Commission; or
2) Personal Delivery; or
3) Electronic Delivery including email or facsimile.
D. Beginning no later than July 1, 2022, a Respondent will be provided a
Notice of Option for Administrative Hearing Officer, along with service of the
Formal Complaint and Notice of Hearing.
The Notice of Option for Administrative Hearing Officer will set forth the option
for the Respondent to request, in writing, that the administrative hearing be
conducted by an Administrative Hearing Officer instead of a Commission
Hearing Panel.
A Respondent who chooses to have the administrative hearing conducted by
an Administrative Hearing Officer must notify the Commission of that choice
34
within ten (10) days of the date of service of the Formal Complaint, Notice of
Hearing and Notice of Option for Administrative Hearing Officer.
E. A Respondent may file a response to the Formal Complaint but is not
required to do so.
Any written response to the charges set forth in a Formal Complaint must be
filed with the Commission at least ten (10) days in advance of the date set for
the hearing.
F. A Respondent may waive the right to a formal Administrative Hearing.
Such waiver of the right to a hearing must be in writing, signed by the
Respondent, and filed with the Commission.
G. A Formal Complaint may be resolved by agreement at any time prior to an
Administrative Hearing by Agreed Order signed by Respondent and subject to
approval by the full Commission.
H. All pleadings or other papers permitted or required to be filed with the
Commission in connection with a pending disciplinary/administrative
proceeding shall be filed by personal delivery or by certified mail to the office
of the Commission, or by email properly addressed to the Commission
Administrator.
Service is effective upon personal delivery, mailing or, when delivered by
email, upon acknowledged receipt of such email service.
I. A Respondent who is represented by legal counsel with respect to the
disciplinary/administrative proceeding shall personally or through such
counsel, give written notice to the Commission of the name, address, and
telephone number of such counsel. Following receipt of proper notice of
representation, all further notices, pleadings, subpoenas, orders, or other
process related to the proceeding shall be served on Respondent through the
designated counsel of record until such time as the withdrawal of counsel is
filed with the Commission.
Source: Miss. Code Ann. § 73-35-23, §73-35-35 (1972, as amended).
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Rule 5.6 Informal Proceedings/Informal Resolutions; Resolution by Agreed
Order.
A. At any time prior to an Administrative Hearing, any matter before the
Commission may be resolved through informal proceedings either by
stipulation, agreed settlement proposal, or agreed order of dismissal. Any
agreed settlement proposal/Agreed Order must be agreed to in writing by the
Respondent, upon a knowing and intentional waiver by the Respondent of his
or her right to an Administrative Hearing, and subsequently must be approved
by the full Commission.
An agreed settlement or Agreed Order is not required, is always voluntary,
and Respondent licensees retain, at all times, the right to proceed to an
Administrative Hearing with full due process.
This process may occur at any time prior to the Commission entering any final
order with respect to the allegation of violation(s). Informal proceedings may
be conducted in person via Informal Conference or by electronic, telephonic,
or written communication.
B. Informal Conferences may include an informal interview or meeting
between the Investigative Review Committee, Commission Administrator, and
the Respondent and/or Respondent’s legal representative to fully explore the
issue(s) involved in the complaint and to facilitate the disposition of an
allegation of violation(s).
1) Respondent shall have a right to be represented by an attorney of record,
of Respondent’s choice and Respondent’s expense.
At any time during the informal settlement conference, should Respondent
choose to obtain representation by an attorney and advises Commission staff
of such choice, the conference will be discontinued.
2) Exchange of information may take place during the Informal Conference.
Respondents are required to answer questions truthfully concerning the
allegations and/or formal complaint and cooperate fully.
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3) Respondent and Commission Investigative Review Committee participation
in the conference is voluntary and may be terminated by either party without
prejudicing the right to proceed with a contested case to an administrative
hearing with full due process.
4) If the parties to an Informal Conference are unable to reach a mutually
agreeable resolution and the matter is to proceed to a formal Administrative
Hearing, the parties may agree in writing by stipulation to the following:
(a) Any undisputed claims, facts, testimony, documents, or issues; and
(b) Evidence to be introduced without objection.
C. Respondent licensees will be allowed the opportunity to challenge and
defend against allegations of violations contained in a Formal
Complaint/Notice of Hearing at a formal Administrative Hearing with full due
process if Informal Resolution by agreement does not occur.
Source: Miss. Code Ann. § 73-35-23, §73-35-35 (1972, as amended) Rule 5.7
Pre-Hearing Procedures.
A. Continuances. Hearings shall be held before the Real Estate
Commissioners Hearing Panel at the time and place designated in the Notice
of Hearing unless the Commission grants a continuance.
(a) A request for a continuance must be filed with the Commission at least ten
(10) days prior to the scheduled hearing or upon a showing of good cause at
any time prior to the hearing.
(b) No more than two (2) continuances of the hearing will be granted without
the approval of the Commission, Commission Chair, or Hearing Officer, for
good cause.
(c) A request for continuance, including one to retain counsel, submitted less
than five (5) days prior to the hearing may be made only under unusual or
extenuating circumstances. In such event, a request for a continuance shall
be granted only if the other parties will not be prejudiced thereby.
37
(d) Absent unusual or extenuating circumstances, if any continuance of an
administrative hearing is requested or necessitated by
Respondent/Respondent’s counsel after the commencement of the hearing,
any costs incurred by the Commission because of the continuance may be
taxed against Respondent as part of any final Order of the Commission.
Determination of the sufficiency of unusual or extenuating circumstances
necessitating such continuance shall be in the sole discretion of the Hearing
Officer.
B. Subpoenas.
1) For disciplinary/administrative hearings, the Commission acting by and
through its legal staff may subpoena necessary persons and papers on its
own behalf and on behalf of a Respondent.
2) Before the Commission will issue any subpoena on behalf of a
Respondent, the Respondent shall file with the Commission a written request
for the issuance of said subpoenas, identifying with certainty the identity and
address of the persons to be subpoenaed and/or a concise description of the
records to be subpoenaed with the identity and address of the custodian of
said records.
3) All requests for the issuance of subpoenas shall be filed with the
Commission sufficiently in advance of a scheduled hearing date, and no later
than fourteen (14) days before the scheduled hearing date.
The Commission shall not be responsible for the timely receipt of said
subpoenas issued after the deadline.
4) All subpoenas issued by the Commission either on its own behalf or on
behalf of a Respondent shall be effected by certified mail or by personal
delivery.
5) Subpoenas issued by the Commission shall be returnable within ten (10)
days to either the Commission or other location as specified in the subpoena.
6) The costs for service of subpoenas issued by the Commission, and witness
fees and mileage as allowed by law may be taxed as part of the costs of the
administrative hearing in the final Order of the Commission.
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C. Disclosure.
1) Formal discovery is not provided for in proceedings before the Commission.
2) No depositions shall be taken in preparation for matters to be heard in a
Commission administrative or disciplinary hearing, except, however, by
agreement of the parties and upon good cause shown, where hearing
depositions may be taken of licensees or other necessary witnesses who will
be unavailable for a hearing previously scheduled.
3) Prior to an administrative or disciplinary hearing, licensees and/or counsel
may, upon request, inspect that pertinent evidentiary material contained in
Commission investigative files that is proposed to be offered at the Formal
Hearing.
4) At least ten (10) days prior to hearing, Complaint Counsel of the
Commission shall disclose and permit Respondent or his or her counsel to
inspect, copy, or photograph the following information and material which is in
the possession, custody, or control of the Commission or the existence of
which is known to the Complaint Counsel:
(a) Names and addresses of all witnesses proposed to be called in the
Commission’s case in chief, together with a copy of the contents of any
statement, written, recorded, or otherwise preserved, of each such witness.
(b) Copies of any written or recorded statement of Respondent and the
substance of any oral statement made by Respondent. Copies of any criminal
record of Respondent, if proposed to be introduced as evidence at the
hearing.
(c) Any written reports or statements of experts, if proposed to be offered as
evidence in connection with the case.
(d) All records, documents, physical evidence, or photographs which may be
offered as evidence.
5) The Commission shall charge a Respondent a reasonable fee, not to
exceed fifty cents ($0.50) per page, payable in advance of delivery of copied
documents.
39
Payment must be made by cashier’s check, money order, or Commission
accepted electronic method.
Copies printed on both sides (front and back) shall be considered two (2)
pages for copy charge purposes.
6) The Commission may deny disclosure authorized by these rules in
accordance with applicable statutory and regulatory provisions providing
exemptions, including but not limited to: Miss. Code Ann. §25-61-12; and
Miss. Code Ann. §73-52-1. 7)
Upon written request by Complaint Counsel, Respondent or his or her counsel
shall promptly disclose and permit Complaint Counsel to inspect, copy, or
photograph the following information and material which is in the possession,
custody, or control of the Respondent or his or her counsel or the existence of
which is known to the Respondent or his or her counsel:
(a) Names and addresses of all witnesses proposed to be called in
Respondent’s defense, together with a copy of the contents of any statement,
written, recorded, or otherwise preserved, of each such witness.
(b) All records, documents, physical evidence, or photographs which may or
shall be offered as evidence in Respondent’s defense.
(c) Any written reports or statements of experts, if proposed to be offered as
evidence in connection with the case.
D. Exhibits
1) Respondent or his or her counsel shall produce to the Commission copies
of all exhibits he or she intends to introduce as evidence in a Formal Hearing
at least five (5) business days prior to the date of the Formal Hearing.
(a) This provision shall be satisfied if Respondent or his or her counsel
previously provided disclosure under Rule 5.7 C to Complaint Counsel and
the said disclosure contained no changes from that to be offered into evidence
as exhibits.
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(b) Respondent or his or her counsel shall produce at least six (6) physical
copies of exhibits at the Formal Hearing, for any review by the Commission
Hearing Panel/Hearing Officer and Complaint Counsel.
2) Upon written request of Respondent or his or her counsel, Complaint
Counsel shall permit inspection of or produce to the Respondent or his or her
counsel copies of all exhibits he or she intends to introduce as evidence in a
Formal Hearing.
(a) This provision shall be satisfied if Complaint Counsel previously provided
disclosure under Rule 5.7
C to Respondent or his or her counsel and the said disclosure contained no
changes from that to be offered into evidence as exhibits.
(b) Complaint Counsel shall not be obligated to fulfill requests made by
Respondent within (5) business days of the date of the formal
AdministrativeHearing.
E. Failure to Comply.
1) In case of the failure of any person to comply with a timely disclosure
and/or production of exhibits, the Commission Hearing Panel or Administrative
Hearing Officer shall either:
(a) Enter an Order prohibiting the noncompliant party from introducing the
designated records, or
(b) Enter an Order continuing the matter until the next scheduled Formal
Hearing time and, if the Respondent is the noncomplying party, tax any costs
of the proceeding incurred because of the necessity for continuance of the
proceedings against Respondent.
F. Amendment of Pleadings.
1) Complaint Counsel may amend a Formal Complaint or Notice of Hearing at
any time prior to the scheduled hearing date for the purposes of correcting a
clerical error, clarifying facts set forth in the Formal Complaint, or to add
additional charges or counts to the Formal Complaint.
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However, upon any amendment of a Formal Complaint, Respondent will be
served with the amended Formal Complaint, and Notice of Hearing, not less
than fifteen (15) days before the scheduled hearing date, or by mutual
agreement of the parties.
G. Procedural Decisions. The Commission Chair or Hearing Officer will be
fully authorized to make all necessary procedural decisions on behalf of the
Commission, including, but not limited to, matters related to continuances,
time extensions, and amendments to Formal Complaints.
Source: Miss. Code Ann. § 73-35-23, §73-35-35 (1972, as amended).
Rule 5.8 Administrative Hearings.
A. Formal Administrative Hearings are conducted pursuant to Miss. Code
Ann. §73-35- 23 which provides that hearings may be conducted before the
Commission or an Administrative Hearing Officer.
When hearings are conducted before the Commission, one Commissioner
present at the hearing shall serve as the Hearing Officer for the hearing.
B. All testimony and other proceedings shall be recorded by a certified court
reporter who shall be retained by the Commission.
Costs incurred for the certified court reporter may be taxed to the Respondent
as part of the costs of the proceedings in the final Order of the Commission as
allowed or provided by statute or these Administrative Rules.
No costs shall be taxed to a prevailing Respondent.
C. At an Administrative Hearing, Complaint Counsel and Respondent shall
have opportunity to present evidence on all issues of fact and argument on all
issues of law, to call, examine, and cross-examine witnesses, and to offer and
introduce documentary evidence and exhibits as may be required for full and
true disclosure of the facts of the matter.
D. The Commission Hearing Panel or Administrative Hearing Officer is not
bound by strict rules of evidence, but all determinations of violations made by
the Commission Hearing Panel or Administrative Hearing Officer must be
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based upon the preponderance of evidence standard of proof. The designated
Hearing Officer shall rule on all evidentiary issues.
E. All hearings are open to the public pursuant to the Mississippi Open
Meetings Law, Miss. Code Ann. §§25-41-1, et seq.
F. In all disciplinary/administrative hearings before the Commission or
Administrative Hearing Officer, the record of the case will include:
1) The Formal Complaint and Notice of Hearing;
2) All pleadings and rulings issued;
3) Evidence received or considered at the hearing;
4) Certified transcript of the proceedings taken by a certified court reporter;
and
5) The Commission’s Order or other disposition made by the Commission.
G. Formal Hearings before the Commission or Administrative Hearing Officer
shall be conducted in the following order:
1) Opening statements
2) Complaint Counsel’s case in chief
3) Respondent’s case in chief
4) Complaint Counsel’s rebuttal
5) Closing statements, if requested
H. Questioning of witnesses shall be conducted in the following order:
1) Direct examination
2) Cross examination
3) Redirect examination
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I. The Hearing Officer will have the authority to preside over the hearing in
accordance with the requirements of the case in a manner that ensures due
process.
J. The Commission Hearing Panel or Administrative Hearing Officer shall
render a decision, setting forth Findings of Fact and Conclusions of Law and
final Order.
Although the Commission Hearing Panel or Administrative Hearing Officer’s
decision may be announced immediately following deliberations, adequate
time shall be allowed for preparation of the written Order.
A copy of such order shall be sent to Respondent via certified mail at his or
her last known address or served personally upon Respondent.
A copy shall be sent to Respondent, Respondent’s counsel of record and
Responsible Broker for Respondent using email addresses on file.
Source: Miss. Code Ann. §73-35-23, §73-35-25, §73-35-35 (1972, as
amended).
Rule 5.9 Appeals of Commission Orders/Rulings.
A. An applicant, Respondent/licensee or other person aggrieved of an
adverse order, ruling or decision of the Commission, or Administrative Hearing
Officer, shall have the right to appeal to the circuit court of the county of
residence of the applicant, licensee, or person, or of the First Judicial District
of Hinds County, within thirty (30) days from the service of notice of the final
Order or action of the Commission.
B. Procession of appeals shall follow the requirements set forth in Miss. Code
Ann. §73-35- 25, other applicable laws, and the Uniform Circuit and County
Court Rules (U.C.C.C.R.).
C. Any order, rule or decision of the Commission or Administrative Hearing
Officer shall not take effect until after the time for appeal to the court has
expired.
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If an appeal is by a defendant or Respondent/licensee, such appeal shall act
as an automatic supersedeas, and the court shall dispose of the appeal and
enter its decision promptly.
However, the Commission may file a motion within ten (10) days of the date of
filing the notice of and request the court to lift the supersedeas upon the
Commission’s showing, by clear convincing evidence, that immediate and
irreparable harm will or may occur if the licensee.
D. An applicant, Respondent/licensee or other person aggrieved of an
adverse order, ruling or decision of the Commission, or Administrative Hearing
Officer, shall have the right to appeal to the circuit court of the county of
residence of the applicant, licensee, or person, or of the First Judicial District
of Hinds County, within thirty (30) days from the service of notice of the final
Order or action of the Commission.
E. Satisfactory bond in the amount of Five Hundred Dollars ($500) shall be
posted with the court upon filing of any appeal for the payment of any costs
which may be adjudged against Appellant applicant or licensee(s).
F. Filing, docketing and procession of appeals shall follow the requirements
set forth in Miss. Code Ann. §73-35-25, other applicable laws, and the
Uniform Circuit and County Court Rules (U.C.C.C.R.).
G. Any order, rule or decision of the Commission or Administrative Hearing
Officer shall not take effect until after the time for appeal to the court has
expired.
If an appeal is taken by a defendant or Respondent/licensee, such appeal
shall act as an automatic supersedeas, and the court shall dispose of the
appeal and enter its decision promptly. However, the Commission may file a
mother within ten (10) days of the date of filing the notice of the appeal and
request the court to lift the supersedeas upon the Commission’s showing, by
clear and convincing evidence, that immediate and irreparable harm will or
may occur if the licensee or person aggrieved were to continue operating as a
licensee.
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E. Actions taken by the Commission is suspending a license when required by
Miss. Code Ann. §93-11-157 or §93-11-163 are not actions from which an
appeal may be taken pursuant to these Rules.
Appeals of such actions are governed by §93-11-157 or §93-11- 163. Source:
Miss Code Ann. §73-35-35, §73-35-35 (1972, as amended).
Part 1601 Chapter 6: Continuing Education
Rule 6.1 Approved Courses
A. Any course that meets the educational requirements as set forth in Section
73-35-7 of the Mississippi Real Estate Broker’s License Act of 1954, as
Amended.
B. Any course sponsored or provided by the Mississippi Real Estate
Commission.
C. Any course which has been individually approved by the Commission
pursuant to the provisions of this rule and which must be approved prior to
presentation of the course, except that, in the Commission’s discretion,
courses which have not received such prior approval, but which meet the
proper criteria may be approved for credit for licensees who have completed
such course.
D. Any course which has been approved for real estate continuing education
by any state or country which is a member of the Association of Real Estate
License Law Officials (ARELLO), and which course satisfies the requirements
set forth in Rule VI (B) (3) with the exception of instruction in license law which
pertains solely to a state other than Mississippi.
Source: Miss. Code Ann. §§ 73-35-35
Rule 6.2 Procedures and Criteria for Approval of Courses
A. Definitions: (1) “Provider” – any individual person, partnership, association,
legally established corporation or LLC, educational organization, or other
entity that sponsors, offers, organizes, provides or promotes real estate
continuing education courses.
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(2) “Instructor” – a person who delivers educational material information
directly to students.
B. A provider desiring approval of continuing education course referred to in
Section 73-35- 18, Mississippi Code of 1972, Annotated, shall make
application to the Commission on forms provided by the Commission.
The provider, course, and instructor must receive concurrent approval.
C. All requests for course accreditation shall be submitted on forms provided
by MREC and will require copies of all student materials as well as
documentation that includes the following:
(1) Course descriptions of each subject in the course.
(2) Measurable learning objectives for each subject.
(3) Specific process for evaluation and improvement of content.
(4) Specific processes for selecting and evaluating instructors.
(5) Specific processes for record-keeping and the administration of
examinations.
D. For courses offered through distance learning:
(1) Courses in Mississippi license law, contract law, and agency shall include
course content and application specific to Mississippi practice and custom.
(2) Out-of-state providers must provide copies or screen prints of all
Mississippi specific content for MREC review and approval.
(3) On-line or CD-ROM courses relating to Mississippi license law and agency
must include instruction in the use of the Mississippi mandatory forms as well
as provide a mechanism for the student to view and download the forms.
E. Standards for approval of course:
(1) A proposed continuing education course shall be a real estate oriented
educational session or course intended to improve skills of licensees and to
keep licensees abreast of changing real estate practices and laws.
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(2) Courses shall be taught only by approved, qualified instructors.
(3) Courses shall be offered in minimum two-hour segments.
(4) Courses, instructors and providers shall be approved for one (1) year
periods and shall be required to renew if the course is to be continued.
(5) Licensees shall physically attend in order to receive a certificate. Source:
Miss. Code Ann. §§ 73-35-35
Rule 6.3 Qualifications of Instructors
The education and experience of the instructor must be appropriate to teach
the subject matter.
Source: Miss. Code Ann. §§ 73-35-35
Rule 6.4 Administrative Requirements – Applies to VI A. 2. & 3.
A. Providers of continuing education courses shall furnish the Commission
with a class roster within thirty (30) days after completion of each course
listing each Mississippi licensee in attendance in alphabetical order.
B. Providers will utilize a three-part certificate for the purpose of certifying
individual attendance.
One designated part shall be returned completed to the commission, one
designated part shall be given to each attendee at the conclusion of the
course, and the remaining par shall be retained by the provider furnishing
such information as may be called for on the certificate.
C. Attendance and other records of each provider must be kept on file for a
period of three years and are subject to inspection by the Commission at any
time during normal business hours. Source: Miss. Code Ann. §§ 73-35-35
Rule 6.5 Advertising and solicitation
A. An approved real estate provider must include, in all forms of advertising,
the school’s name and the physical location of its principal place of business.
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B. An approved real estate provider may not advertise through oral
statements or written text in such a manner that the statement is included or
contained in any advertisement by a real estate broker and no advertisement
of a licensed school may refer to the brokerage operation or include the
telephone number of any individual broker.
C. An approved real estate provider may not:
(1) Indicate any name other than the name approved by the Mississippi Real
Estate Commission (MREC).
(2) Indicate that it has been endorsed, recommended, or certified by the
MREC except that the provider may advertise that it is approved by the MREC
to provide instruction in real estate courses.
(3) Indicate that successful completion of its curriculum will result in passing a
real estate licensing exam, may not make any guarantee of employment to a
student or prospective student, and may not promote the business or any real
estate licensee, real estate franchise, or network.
Source: Miss. Code Ann. §§ 73-35-35
Rule 6.6 Relationship with providers
A. No real estate education presentation may be conducted in a facility that is
also utilized for conducting the business of real estate brokerage unless all
participants are licensees of the brokerage firm conducting the courses.
No real estate education provider will allow in-person or electronic solicitation
of students for employment.
A provider may not post, distribute, or display written material concerning
employment nor use any approved course for the purpose of discussing,
inducting, or promoting affiliation with any broker or brokerage firm during the
prescribed class hours nor during the breaks between such class hours.
B. Providers may advertise that a course meets a portion of the continuing
education requirements; however, no advertisement shall be used which
states or implies that the Mississippi Real Estate Commission has approved
or passed on the merits of a course. Source: Miss. Code Ann. §§ 73-35-35
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Rule 6.7
Suspension or Revocation of Approval Failure to comply with any provision of
this rule shall constitute grounds for suspension or revocation of the approval
of a course, a provider or an instructor, or other such action as deemed
appropriate by the Commission.
Source: Miss. Code Ann. §§ 73-35-35 Part 1601
Chapter 7: INSPECTION OF OFFERINGS FROM OUT OF STATE
Rule 7.1 Out-of-state Developers Out-of-state land developers who desire to
advertise out-of-state property in Mississippi (except in national publications)
shall first contact the Mississippi Real Estate Commission to have the property
approved for advertising.
The Mississippi Real Estate Commission may in its discretion conduct an
on-site inspection of the property at the cost of the developer.
The developer shall, upon request from the Mississippi Real Estate
Commission, provide such documentation which will establish the truth and
accuracy of the proposed advertisements.
A Mississippi broker who becomes the agent or representative of the
out-of-state developer, shall be responsible for the truth and accuracy of
representation, offerings and advertising of such properties in the State of
Mississippi. Source: Miss. Code Ann. §§ 73-35-35
Part 1601
Chapter 8:
Time Shares Rule 8.1 Licensing
Any seller, other than the developer and its regular employees, of a timeshare
plan within the State of Mississippi must be a licensed Real Estate Broker or
Real Estate Salesperson pursuant to and subject to Mississippi Law and the
Rules and Regulations of the Mississippi Real Estate Commission. Source:
Miss. Code Ann. §§ 73-35-35
Rule 8.2 Definitions
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A. “Accommodations” means any structure, service improvement, facility,
apartment, condominium or cooperative unit, cabin, lodge, hotel or motel
room, or any other private or commercial structure, which is situated on real
property and designed for occupancy by one or more individuals.
B. “Advertising” or “Advertisement” means any written, oral, or electronic
communication which contains a promotion, inducement, or offer to sell a
timeshare plan, including, but not limited to, brochures, pamphlets, radio and
television scripts, electronic media, telephone and direct mail solicitations, and
other means of promotion.
C. “Assessment” means the share of funds required for the payment of
common expenses that are assessed from time to time against each
timeshare interest owner by the managing entity.
D. “Association” means the organized body consisting of the owners of
timeshare interests in a timeshare plan.
E. “Common Expenses” means taxes, casualty and liability insurance, and
those expenses properly incurred for the maintenance, operation, and repair
of all accommodations constituting the timeshare plan and any other
expenses designated as common expenses by the timeshare instrument.
F. “Developer” means and includes any person who creates a timeshare plan
or is in the business of selling timeshare interests, or employs agents to do
the same, or any person who succeeds to the interest of a developer by sale,
lease, assignment, mortgage, or other transfer, but the term includes only
those persons who offer timeshare interests for disposition in the ordinary
course of business and does not include those sellers who sell timeshare
interests on the developer’s behalf.
G. “Managing entity” means the natural person or other entity that undertakes
the duties, responsibilities, and obligations of the management of a timeshare
plan.
H. “Exchange program” means any method, arrangement, or procedure for
the voluntary exchange of timeshare interests or other property interests.
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The term does not include the assignment of the right to use and occupy
accommodations to owners of timeshare interests within a timeshare plan.
Any method, arrangement, or procedure that otherwise meets this definition in
which the purchaser’s total contractual financial obligation exceeds three
thousand dollars ($3,000) per any individual, recurring timeshare period, shall
be regulated as a timeshare plan in accordance with these rules.
For purposes of determining the purchaser’s total contractual financial
obligation, amounts to be paid as a result of renewals and options to renew
shall be included except for the following:
(1) the amounts to be paid as a result of any optional renewal that a
purchaser, in his or her sole discretion may elect to exercise or
(2) the amounts to be paid as a result of any automatic renewal in which the
purchaser has a right to terminate during the renewal period at any time and
receive a pro rata refund for the remaining unexpired renewal term or
(3) amounts to be paid as a result of an automatic renewal wherein the
purchaser receives a written notice no less than 30 nor more than 90 days
prior to the date of renewal informing the purchaser of the right to terminate
prior to the date of renewal.
Notwithstanding these exceptions, if the contractual financial obligation
exceeds three thousand dollars ($3,000) for any three-year period of any
renewal term, amounts to be paid as a result of that renewal shall be included
in determining the purchaser’s total contractual financial obligation.
I. “Offer to sell”, “offer for sale,” “offered for sale,” or “offer” means solicitation
of purchasers, the taking of reservations, or any other method whereby a
purchaser is offered the opportunity to participate in a timeshare plan.
J. “Purchaser” means any person, other than a developer, who by means of a
voluntary transfer for consideration acquires a legal or equitable interest in a
timeshare plan other than as security for an obligation.
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K. “Reservation system” means the method or arrangement which purchasers
are required to utilize in order to reserve the use and occupancy of
accommodations in a timeshare plan.
L. “Seller” means any developer or any other person, or agent or employee
thereof: who offers timeshare periods for sale to the public in the ordinary
course of business, except a person who has acquired a timeshare period for
the person’s own use and occupancy and who later offers it for resale.
M. “Timeshare instrument” means one or more documents, by whatever name
denominated, creating or governing the operation of a timeshare plan and
includes the declaration or other legal instrument dedicating the
accommodations to the timeshare plan.
N. “Timeshare interest” means and includes either of the following:
(1) A “timeshare estate,” which is the right to occupy a timeshare property,
coupled with a freehold estate or an estate for years with a future interest in a
timeshare property or a specified portion thereof.
(2) A “timeshare plan” which is the right to occupy a timeshare property, which
right is neither coupled with a freehold interest, nor coupled with an estate for
years with a future interest, in a timeshare property.
O. “Timeshare plan” means any arrangement, plan, scheme, or similar device,
other than an exchange program, whether by membership agreement, sale,
lease, deed, license, right to use agreement, or by any other means, whereby
a purchaser, in exchange for consideration, receives ownership rights in or the
right to use accommodations for a period of time less than a full year during
any given year, on a recurring basis for more than one year, but not
necessarily for consecutive years.
A timeshare plan may be either of the following:
(1) A “single-site timeshare plan” which is the right to use accommodations at
a single timeshare property; or
(2) A “multi-site timeshare plan” that includes either of the following: (a) A
“specific timeshare interest” which is the right to use accommodations at a
53
specific timeshare property, together with use rights in accommodations at
one or more other component sites created by or acquired through the
timeshare plan’s reservation system; or
(b) A “non-specific timeshare interest” which is the right to use
accommodations at more than one component site created by or acquired
through the timeshare plan’s reservation system but including no right to use
any specific accommodation.
P. “Timeshare property” means one or more accommodations subject to the
same timeshare instrument, together with any other property or rights to
property appurtenant to those accommodations.
Q. “Mississippi Real Estate Commission,” or “Commission” means the agency
of the State of Mississippi created by §73-35-1, et seq.
To regulate the licensing of real estate brokers and salespersons and by
§73-35-35 directed to regulate the sale of timeshare and condominium
properties.
Source: Miss. Code Ann. §§ 73-35-35 Rule 8.3
Registration
A. Developer registration; offer or disposal of interest. – A developer, or any of
its agents, shall not sell, offer or dispose of a timeshare interest in the state
unless all necessary registration requirements are completed and approved
by the Mississippi Real Estate Commission, or the sale, offer, or disposition is
otherwise permitted by or exempt from these rules.
A developer, or any of its agents, shall not sell, offer or dispose of a timeshare
interest in the state while an order revoking or suspending a registration is in
effect.
B. Exemptions from developer registration (1) A person is exempt from the
registration requirements under the following circumstances.
(a) An owner of a timeshare interest who has acquired the timeshare interest
from another for the owner’s own use and occupancy and who later offers it
for resale; or
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(b) A managing entity or an association that is offering to sell one or more
timeshare interests acquired through foreclosure, deed in lieu of foreclosure or
gratuitous transfer, if such acts are performed in the regular course of or as
incident to the management of the association for its own account in the
timeshare plan; or
(c) The person offers a timeshare plan located outside of Mississippi in a
national publication or by electronic media, which is not directed to or targeted
to any individual located in Mississippi and contains appropriate disclaimers;
or
(d) The person is conveyed, assigned, or transferred more than seven
timeshare interests from a developer in a single voluntary or involuntary
transaction arid subsequently conveys, assigns, or transfers all of the
timeshare interests received from the developer to a single purchaser in a
single transaction.
(e) (i) The developer is offering a timeshare interest to a purchaser who has
previously acquired a timeshare interest from the same developer if the
developer has a timeshare plan registered with the Commission, which was
originally approved by the Commission within the preceding seven (7) years
and, further, provides the purchaser:
(A) a cancellation period of at least seven (7) calendar days;
(B) all the timeshare disclosure documents that are required to be provided to
purchasers as if the sale occurred in the state or jurisdiction where the
timeshare property is located; and
(ii) By making such an offering or disposition, the person is deemed to
consent to the jurisdiction of the Commission in the event of a dispute with the
purchaser in connection with the offering or disposition.
(f) An offering of any plan in which the purchaser’s total financial obligation is
$3,000 or less during the term of the plan; for purposes of determining the
purchaser’s total financial obligation, all amounts to be paid during any
renewal or periods of optional renewal shall be included.
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(g) Hotels including any hotel, inn, motel, tourist court, apartment house,
rooming house, or other place where sleeping accommodations are furnished
or offered for pay if four (4) or more rooms are available therein for transient
guests as defined in Miss. Code Ann. §41-49-3.
(h) Campground, which is located on real property, made available to persons
for camping, whether by tent, trailer, camper, cabin, recreational vehicle or
similar device and shall include the outdoor recreational facilities located on
the real property;
(i) Hunting camp which means land or facilities located on real property which
is established for the principal purpose of hunting or fishing activities which
are subject to licensing by the State of Mississippi pursuant to Miss. Code
Ann. §49-7-1, et seq.
(j) Owner referrals as described in Section N of these rules.
C. Developer Registration Requirements
(1) Any person who, to any individual in Mississippi, sells, offers to sell, or
attempts to solicit prospective purchasers to purchase a timeshare interest, or
any person who creates a timeshare plan with an accommodation in
Mississippi must register the timeshare plan with the Commission unless the
timeshare plan is otherwise exempt from this Chapter.
(2) The developer shall have the duty to supervise and control all aspects of
the offering of a timeshare plan including, but not limited to the promotion,
advertising, contracting and closing.
(3) The developer must provide proof as part of the registration that he will
comply with escrow, bonding, or other financial assurance requirements for
purchaser funds, including escrow during the rescission period, escrow funds
until substantial completion, or bonding, letter of credit or other financial
assurances acceptable to the Commission.
(4) All timeshare plans shall maintain a one-to-one purchaser to
accommodation ratio, which is the ratio of the number of purchasers eligible to
use the accommodations of a timeshare plan on a given day to the number of
accommodations available for use within the plan on that day, such that the
56
total number of purchasers eligible to use the accommodations of the
timeshare plan during a given calendar year never exceeds the total number
of accommodations available for use in the timeshare plan during that year.
For purposes of calculation under this subsection, each purchaser must be
counted at least once, and no individual timeshare unit may be counted more
than 365 times per calendar year (or more than 366 times per leap year).
A purchaser who is delinquent in the payment of timeshare plan assessments
shall continue to be considered eligible to use the accommodations of the
timeshare plan.
D. Comprehensive registration
(1) In registering a timeshare plan, the developer shall provide all of the
following information:
(a) The developer’s legal name, any assumed names used by the developer,
principal office, street address, mailing address, primary contact person,
telephone, electronic mail and facsimile numbers;
(b) The name of the developer’s authorized or registered agent in Mississippi
upon whom claims may be served or service of process be had, the agent’s
street address in Mississippi and telephone number;
(c) The name, street address, mailing address, primary contact person and
telephone, electronic mail and facsimile numbers of any timeshare plans
being registered;
(d) The name, street address, mailing address and telephone, electronic mail
and facsimile numbers of any managing entity of the timeshare plan if other
than the developer;
(e) Current status of title by a title insurance company qualified and registered
to do business in Mississippi, or in the jurisdiction where the timeshare plan is
located;
(f) A copy of the proposed or existing covenants, conditions and restrictions
applicable to the timeshare plan;
57
(g) Exemplars of all contracts, deeds, fact sheets and other instruments to be
used in marketing, financing and conveying the timeshare interests;
(h) A copy of the management agreement for the timeshare plan;
(i) A detailed description of the furnishing(s) and other personal property to be
included in the timeshare plans;
(j) Agreement of the developer to subsidize maintenance and operation of the
timeshare plan, if any;
(k) Description of other services and amenities advertised with the timesharing
plan;
(l) Evidence of financial assurances, if any;
(m) Evidence of compliance with escrow or other financial assurance
requirements for protection of purchaser funds pursuant to these rules.
(n) Where the timeshare plan uses a reservation system, the developer shall
provide evidence that provisions are in place to assure that, in the event of
termination of the operator of the reservation system, an adequate period of
continued operation exists to assure a transition to a substitute operator or
mechanism for the operation of the reservation system. In addition, there shall
be a requirements to transfer all relevant data contained in the reservation
system to the successor operator of the system.
(o) A description of the inventory control system that will ensure compliance
with subsection 3.c. of this section.
(p) A public offering statement which complies with the requirements set forth
below; and
(q) Any other information regarding the developer, timeshare plan, or
managing entities, as reasonably required by the Commission for the
protection of the purchasers.
E. Abbreviated Registration
58
(1) The Commission may accept an abbreviated application from a developer
of a timeshare plan in which all accommodations are located outside of the
state.
A developer of a timeshare plan with any accommodation located in
Mississippi may not file an abbreviated filing, with the exception of a
succeeding developer after a merger or acquisition when the developer’s
timeshare plan was registered in the state immediately preceding the merger
or acquisition.
(2) As a part of any application for an abbreviated registration, the developer
must provide a certificate of registration or other evidence of registration from
the appropriate regulatory agency in the jurisdiction in which the
accommodations offered in Mississippi are located, or other evidence of
compliance by the timeshare plan with the laws of the jurisdiction where the
accommodations are located. Such other jurisdiction must have disclosure
requirements that are substantially equivalent or greater than the information
required to be disclosed to purchasers by these rules.
A developer filing an abbreviated registration application must also provide the
following:
(a) The developer’s name, any assumed names used by the developer, the
developer’s principal office location, mailing address, primary contact person
and telephone, electronic mail and facsimile numbers;
(b) The name, location, mailing address, primary contact person and the
telephone, electronic mail and facsimile numbers of the timeshare plan, if
different from the developer;
(c) The name of the authorized agent or registered agent in Mississippi upon
whom claims can be served or service of process can be had, and the
address in Mississippi of the authorized agent or registered agent;
(d) The names of any sales entity if other than the developer and the
managing’ entity and their principal office locations, mailing address and
telephone, electronic mail and facsimile numbers;
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(e) A statement as to whether the timeshare plan is a single-site timeshare
plan or a multi-site timeshare plan and, if a multi-site timeshare plan, whether
it consists of specific timeshare interests or non-specific timeshare interests;
(f) Disclosure of each jurisdiction in which the developer has applied for
registration of the timeshare plan and whether the timeshare plan, its
developer or any of its sales agents or managing entities utilized were denied
registration or were the subject of any disciplinary proceedings;
(g) Copies of any disclosure documents required to be given to purchasers or
required to be filed with the jurisdiction in which the timeshare plan is
approved or accepted as may be requested by the Commission;
(h) The appropriate fees, if any, and
(i) Other information reasonably required by the Commission or established by
rule.
F. Preliminary Permits
(1) The state may grant a preliminary permit allowing the developer to begin
offering and selling timeshare interests while the registration is in process.
To obtain a preliminary permit, the developer must do all of the following:
(a) Submit a formal written request to the Mississippi Real Estate Commission
for a preliminary permit;
(b) Submit a substantially complete application for registration to the
Commission, including any appropriate fees and exhibits;
(c) Provide evidence acceptable to the state agency that all funds received by
the developer will be placed into an independent escrow account in
accordance with the escrow requirements until a final registration has been
granted;
(d) Give to each purchaser a copy of the proposed public offering statement
that the developer has submitted to the Commission with the initial
application; and
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(e) Give to each purchaser the opportunity to cancel the purchase contract
during the applicable recission period.
The purchaser shall have an additional opportunity to cancel upon the
issuance of an approved registration if the Commission determines that there
is a material and adverse difference in the disclosures contained in the final
public offering statement and those given to the purchaser in the proposed
public offering statement.
Source: Miss. Code Ann. §§ 73-35-35
Rule 8.4 Public Offering Statement
A. Public Offering Statement Requirements
(1) A developer must prepare a public offering statement that shall fully and
accurately disclose the facts concerning the timeshare developer and
timeshare plan as required by these rules.
The developer shall provide the public offering statement to each purchaser of
a timeshare interest in any timeshare plan prior to execution of the purchase
contract. The public offering statement shall be dated and shall require the
purchaser to certify in writing the receipt thereof.
Upon approval by the Commission, the developer may also deliver the public
offering statement on CD ROM or other electronic media.
(2) With regard to timeshare interests offered in a single-site timeshare plan or
in the specific interest of a multi-site timeshare plan, the public offering
statement should fully and accurately disclose the following:
(a) The name of the developer and the principal address of the developer;
(b) Information regarding the developer’s business and property management
experience;
(c) A description of the type of timeshare interests being offered;
(d) The number of accommodations and timeshare interests, expressed in
periods of seven-days use availability or other time increments applicable to
the multi-site timeshare plan for each component site committed to the
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multi-site timeshare plan and available for use by purchasers, purchasers and
a representation about the percentage of useable time authorized for sale,
and if that percentage is 100 percent, then a statement describing how
adequate periods of time for maintenance and repair will be provided. A
general description of the existing and proposed accommodations and
amenities of the timeshare plan, including their type and number personal
property furnishing the accommodation, any use restrictions, and any required
fees for use;
(e) A description of any accommodations and amenities that are committed to
be built, including, without limitation:
(i) the developer’s schedule of commencement and completion of all
accommodations and amenities;
(ii) the estimated number of accommodations per site that may become
subject to the timeshare plan;
(iii) a brief description of the duration, phases, and operation of the timeshare
plan; and
(iv) the extent to which financial arrangements have been provided for
completion of all promised improvements. (f) If the timeshare plan requires the
use of a reservation system, include a description of the reservation system
which shall include the following:
(i) The entity responsible for operating the reservation system, its relationship
to the developer, and the duration of any agreement for operation of the
reservation system.
(ii) A summary of the rules and regulations governing access to and use of the
reservation system.
(iii) The existence of and an explanation regarding any priority reservation
features that affect a purchaser’s ability to make reservations for the use of a
given accommodation on a first-come, first-serve basis.
(iv) An explanation of any demand-balancing standard utilized to assure
equitable use of the accommodations among participants.
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(g) The current annual budget, if available, or the projected annual budget for
the timeshare plan.
The budget must include, without limitations:
(i) a statement of the amount included in the budget as a reserve for repairs
and replacement;
(ii) the projected common expense liability, if any, by category of expenditures
for the timeshare plan; and a statement of any services or expenses not
reflected in the budget that the developer provides or pays.
(h) Information regarding all fees that the purchaser is required to pay in
conjunction with the purchase and ownership including, but not limited to,
closing cost and annual assessments;
(i) A description of any liens, defects or encumbrances on or affecting the title
to the timeshare interests;
(j) A description of any financing offered by or available through the developer;
(k) A statement that within seven (7) calendar days after receipt of the public
offering statement or after execution of the purchase contract, whichever is
later, a purchaser may cancel any purchase contract for a timeshare interest
from a developer together with a statement providing the name and street
address to which the purchaser shall mail any notice of cancellation.
If by agreement of the parties by and through the purchase contract, the
purchase contract allows for cancellation of the purchase contract for a period
of time exceeding seven (7) calendar days, then the public offering statement
shall include a statement that the cancellation of the purchase contract is
allowing for that period of time exceeding seven (7) calendar days;
(l) A description of any bankruptcies, pending civil or criminal suits,
adjudications, or disciplinary actions of which the developer has knowledge,
which would have a material effect on the developer’s ability to perform its
obligations.
(m) Any restrictions on alienation of any number or portion of any timeshare
interests;
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(n) A statement describing liability and casualty insurance for the timeshare
property;
(o) Any current or expected fees or charges to be paid by timeshare
purchasers for the use of any amenities related to the timeshare plan;
(p) A statement disclosing any right of first refusal or other restraint on the
transfer of all or any portion of a timeshare interest.
(q) A statement of disclosing that any deposit made in connection which the
purchase of a timeshare interest shall be held by an escrow agent until
expiration of any right to cancel the contract and that any deposit shall be
returned to the purchaser if he or she elects to exercise his or her right of
cancellation.
Alternatively, if the Commission has accepted from the developer a surety
bond, irrevocable letter of credit, or other financial assurance in lieu of placing
deposits in an escrow account, account:
(i) a statement disclosing that the developer has provided a surety bond,
irrevocable letter of credit, or other financial assurance in an amount
equal to or in excess of the funds that would otherwise be placed in an escrow
account and, (ii) a description of the type of financial assurance that has been
arranged,
(iii) a statement that if the purchaser elects to exercise his or her right of
cancellation as provided in the contract, the developer shall return the deposit,
and
(iv) a description of the person or entity to whom the purchaser shall apply for
payment.
(r) If the timeshare plan provides purchasers with the opportunity to participate
in an exchange program, a description of the name and address of the
exchange company and the method by which a purchaser accesses the
exchange program;
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(s) Such other information reasonable required by the state agency and
established by administrative rule necessary for the protection of purchasers
of timeshare interests in timeshare plans; and
(t) Any other information that the developer, with the approval of the
Commission, desires to include in the public offering statement. (3) Public
offering statements for specific timeshare interest and multi-site timeshare
plans shall include the following disclosures in addition to those required in (b)
above:
(a) A description of each component site, including the name and address of
each Component site.
(b) The number of accommodations and timeshare interest, expressed in
periods of seven-day use availability or other time increments applicable to
each component site of the timeshare plan, committed to the multi-site
timeshare plan and available for use by purchasers, and a representation
about the percentage of useable time authorized for sale, and if that
percentage is 100 percent, then a statement
t describing how adequate periods of time for maintenance and repair will be
provided.
Each type of accommodation in terms of the number of bedrooms, bathrooms,
and sleeping capacity, and a statement of whether or not the accommodation
contains a full kitchen.
For purposes of this description, a “full kitchen” means a kitchen having a
minimum of a dishwasher, range, sink, oven, and refrigerator.
(c) A description of amenities available for use by the purchaser at each
component site.
(d) A description of the reservation system, which shall include the following:
(i) The entity responsible for operating the reservation systems, its relationship
to the developer, and the duration of any agreement for operation of the
reservation system.
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(ii) A summary of the rules and regulations governing access to and use of the
reservation system.
(iii) The existence of and an explanation regarding any priority reservations for
the use of a given accommodation on a first-come, first-served basis.
(iv) An explanation of any demand-balancing standard utilized to assure
equitable use of the accommodations among participants.
(v) A description of any method utilized to permit additions, substitutions, or
deletions of accommodations.
(vi) A description of any criteria utilized in the use and operation of the
reservation system (such as historical occupancy levels by season, location,
demand, etc.)
(e) The name and principal address of the managing entity of the multi-site
timeshare plan and description of the procedures, if any, for altering the
powers and responsibilities of the managing entity and for removing or
replacing it.
(f) A description of any right to make any addition, substitutions, or deletion of
accommodations, amenities, or component sites, and a description of the
basis upon which accommodations, amenities, or component sites may be
added to, substituted in, or deleted from the multi-site timeshare plan.
(g) A description of the purchaser’s liability for any fees associated with the
multi-site timeshare plan.
(h) The location of each component site of the multi-site timeshare plan, the
historical occupancy of each component site for the prior 12-month period, if
the component site was part of the multi-site timeshare plan during the
12-month time period, as well as any periodic adjustment or amendment to
the reservation system that may be needed in order to respond to actual
purchaser use patterns and changes in purchaser use demand for the
accommodations existing at that time within the multi-site timeshare plan.
(i) Any other information that the developer, with the approval of the
Commission, desires to include in the timeshare disclosure statement.
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(4) Public offering statements for nonspecific timeshare multi-site timeshare
plans shall include the following:
(a) The name and address of the developer.
(b) A description of the type of interest and usage rights the purchaser will
receive.
(c) A description of the duration and operation of the timeshare plan.
(d) A description of the type of insurance coverage provided for each
component site.
(e) An explanation of who holds title to the accommodations of each
component site.
(f) A description of each component site, including the name and address of
each component site.
(g) The number of accommodations and timeshare interest, expressed in
periods of seven-day use availability or other time increments applicable to
the multi-site timeshare plan for each component site committed to the
multi-site timeshare plan and available for use by purchasers. purchasers and
a representation about the percentage of useable time authorized for sale,
and if that percentage is 100 percent, then a statement describing how
adequate periods of time for maintenance and repair will be provided.
(h) Each type of accommodation in terms of the number of bedrooms,
bathrooms, and sleeping capacity, and a statement of whether or not the
accommodation contains a full kitchen. For purposes of this description, a “full
kitchen” means a kitchen having a minimum of a dishwasher, range, sink,
oven, and refrigerator.
(i) A description of amenities available for use by the purchaser at each
component site. A description of any incomplete amenities at any of the
component sites along with a statement as to any assurance for completion
and the estimated date the amenities will be available.
(j) The location of each component site of the multi-site timeshare plan, the
historical occupancy of each component site for the prior 12-month period, if
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the component site was part of the multi-site timeshare plan during such
12-month time period, as well as any periodic adjustment or amendments to
the reservation system that may be needed in order to respond to actual
purchaser use patterns and changes in purchaser use demand for the
accommodations existing at that time within the multi-site timeshare plan.
(k) A description of any rights to make any additions, substitutions, or
deletions of accommodations, amenities, or component sites, and a
description of the basis upon which accommodations, amenities, or
component sites may be added to, substituted in, or deleted form the multi-
site timeshare plan.
(l) A description of the reservation system that shall include all of the following:
(i) The entity responsible for operating the reservation system, its relationship
to the developer, and the duration of any agreement for operation of the
reservation system.
(ii) A summary of the rules and regulations governing access to and use of the
reservation system.
(iii) The existence of and an explanation regarding any priority reservation
features that affect a purchaser’s ability to make reservations for the use of a
given accommodation on a first-come, first-served basis.
(m) The name and principal address of the managing entity for the multi-site
timeshare plan and a description of the procedures, if any, for altering the
powers and responsibilities of the managing entity and for removing or
replacing it, and a description of the relationship between a multi-site
timeshare plan managing entity and the managing entity of the component
sites of a multi-site timeshare plan, if different from the multi-site timeshare
plan managing entity.
(n) The current annual budget as provided in Section L. of these rules, along
with the projected assessments and a description of the method of calculation
and apportioning the assessments among purchasers, all of which shall be
attached as an exhibit to the public offering statement.
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(o) Any current fees or charges to be paid by timeshare purchasers for the
use of any amenities related to the timeshare plan and statement that the fees
or charges are subject to change.
(p) Any initial or special fee due from the purchaser at closing, together with a
description of the purpose and method of calculating the fee.
(q) A description of any financing offered by or available through the
developer.
(r) A description of any bankruptcies, pending civil or criminal suits,
adjudications, or disciplinary actions of which the developer has knowledge,
which would have a material effect on the developer’s ability to perform its
obligations.
(s) A statement disclosing any right of first refusal or other restraint on the
transfer of all or any portion of a timeshare interest.
(t) A statement disclosing that any deposit made in connection with the
purchase of a timeshare interest shall be held by an escrow agent until
expiration of any right to cancel the contract and that any deposit shall be
returned to the purchaser if he or she elects to exercise his or her right of
cancellation.
Alternatively, if the Commission has accepted from the developer a surety
bond, irrevocable letter of credit, or other financial assurance in lieu of placing
deposits in an escrow account, account:
(i) a statement disclosing that the developer has provided a surety bond,
irrevocable letter of credit, or other financial assurance in an amount equal to
or in excess of the funds that would otherwise be placed in an escrow account
and,
(ii) a description of the type of financial assurance that has been arranged,
(iii) a statement that if the purchaser elects to exercise his or her right of
cancellation as provided in the contract, the developer shall return the deposit,
and
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(iv) a description of the person or entity to whom the purchaser should apply
for payment.
(v) If the timeshare plan provides purchasers with the opportunity to
participate in an exchange program, a description of the name and address of
the exchange company and the method by which a purchaser accesses the
exchange program.
(w) Any other information that the developer, with the approval of the
Commission, desires to include in the timeshare disclosure statement.
Source: Miss. Code Ann. §§ 73-35-35
Rule 8.5 Amendment to Registration Information and Public Offering
Statement
The developer shall amend or supplement its Public Offering Statement and
registration information to reflect any material change in any information
contained therein.
All such amendments, supplements and changes shall be filed with and
approved by the Commission.
Each approved amendment to the Public Offering Statement, other than an
amendment made only for the purpose of the addition of a phase or phases to
the timeshare plan in the manner described in the timeshare instrument or any
amendment that does not materially alter or modify the offering in a manner
that is adverse to a purchaser, shall be delivered to a purchaser no later than
10 days prior to closing.
Source: Miss. Code Ann. §§ 73-35-35
Rule 8.6 Registration Review Time Frames
Every registration required to be filed with the Commission must be reviewed
and issued a certificate of registration in accordance with the following
schedule:
A. Comprehensive registration. Registration shall be effective only upon the
issuance of a certificate of registration issued by the Commission, which, in
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the ordinary course of business, should occur no more than sixty (60)
calendar days after actual receipt by the state agency of the properly
completed application.
The Commission must provide a list of deficiencies in the application, if any,
and the time for issuance of the certificate of registration by the Commission
will be sixty (60) calendar days from receipt by the Commission of the
information listed in the deficiencies in the application.
B. Abbreviated registration. Registration shall be effective only upon the
issuance of a certificate of registration issued by the Commission, which, in
the ordinary course of business, should occur no more than thirty (30)
calendar days after receipt by the Commission of the properly completed
application.
The Commission must provide a list of deficiencies in the application, if any,
and the time for issuance of the certificate of registration by the Commission
will occur no more than thirty (30) calendar days from receipt by the
Commission of the information listed in the deficiencies in the application.
C. Preliminary permit.
A preliminary permit shall be issued within twenty (20) calendar days after
receipt of a properly completed application unless the Commission provides to
the applicant a list of deficiencies in the application. A preliminary permit shall
be issued within fifteen (15) calendar days after receipt by the Commission of
the information listed in the deficiencies in the application.
D. The applicant nor a presumption of approval of the application. The
Commission may, for cause, ext
end the approval periods. Source: Miss. Code Ann. §§ 73-35-35 Rule 8.7
Purchase Contracts
A. Each developer shall furnish each purchaser with a fully completed and
executed copy of a contract, which contract shall include the following
information:
(1) The actual date the contract is executed by all parties;
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(2) The names and addresses of the seller, the developer and the timeshare
plan;
(3) The total financial obligation of the purchaser, including the purchase price
and any additional charges to which the purchaser may be subject, such as
any recurring assessment;
(4) The estimated date of availability of each accommodation, which is not
completed;
(5) A description of the nature and duration of the timeshare interest being
sold, including whether any interests in real property is being conveyed and
the specific number of years or months constituting the term of contract;
(6) Immediately above the signature line of the purchaser(s), the following
statement shall be printed in conspicuous type:
(7) These statements in Paragraph f. may not be waived and failure to include
them in a timeshare contract shall render the contract void.
(8) Seller shall refund all payments made by the purchaser under the contract
and return all negotiable instruments, other than checks, executed by the
purchaser in You may cancel this contract without any penalty or obligation
within seven (7) calendar days from the date you sign this contract and seven
(7) calendar days after you receive the public offering statement, whichever is
later. If you decide to cancel this contract, you must notify the developer in
writing of your intent to cancel.
Your notice of cancellation shall be effective upon the date sent and shall be
sent to (name of developer) at (address of developer).
If you cancel the contract during a the seven-day cancellation period, the
developer shall refund to you all payments made under the contract within
thirty (30) days after receipt of your cancellation notice.
No purchaser should rely upon representations other than those included in
this contract. connection with the contract within 30 days from the receipt of
the notice of cancellation transmitted to the developer from the purchaser or if
the purchaser has received benefits under the contract, refund all payments
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made less actual cost of benefits actually received by the purchaser before
the date of cancellation, with an accounting of the actual costs of the benefits
deducted from payments refunded.
Source: Miss. Code Ann. §§ 73-35-35
Rule 8.8 Exchange Program
A. If a purchaser is offered the opportunity to subscribe to an exchange
program, the purchaser should receive written information concerning the
exchange program prior to or concurrently with the execution of the contract
with the exchange company.
Such information should include, without limitation, the following information.
(1) The name and address of the exchange company;
(2) The names of all officers, directors and shareholders of greater that 10%
interests of the exchange company;
(3) A description of the purchaser’s contractual relationship with the exchange
program and the procedure by which changes may be made;
(4) A description of the procedure to qualify for and effectuate changes;
(5) A description of the limitations, restrictions or priority employed in the
operation of the exchange program;
(6) The fees or range of fees for participation in the exchange program and
the circumstances under which the fees may be changed;
(7) The name and address of each timeshare plan participating in the
exchange program;
(8) The number of timeshare interests reported in seven (7) day usage
periods in each timeshare plan participating in the exchange program; and
(9) The number of purchasers for each timeshare plan participating in the
exchange program.
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B. The exchange program should report on an annual basis following an audit
by an independent certified public accountant the following:
(1) The number of purchasers enrolled in the exchange program;
(2) The number of accommodations that have current affiliation agreements
with the exchange program; The percentage of confirmed reservations;
(3) The number of timeshare periods for which the exchange program has an
outstanding obligation to provide an exchange to a purchaser who
relinquished a timeshare period during the year; and
(4) The number of exchanges confirmed by the exchange program during the
year.
C. No developer shall have any liability with respect to any violation of these
rules arising out of the publication by the developer of information provided to
it by an exchange company pursuant to this section.
No exchange company shall have any liability with respect to any violation of
these rules arising out of the use by a developer of information relating to an
exchange program other than that provided to the developer by the exchange
company.
D. An exchange company may elect to deny exchange privileges to any
purchaser whose use of the accommodations of the purchaser’s timeshare
plan is denied, and no exchange program or exchange company shall be
liable to any of its members or any third parties on account of any such denial
of exchange privileges.
Source: Miss. Code Ann. §§ 73-35-35
Rule 8.9 Escrows and Alternatives Assurances
In order to protect the purchaser’s right to refund during the rescission period
and during any period in which construction of the timeshare property is not
complete and available for occupancy by purchasers, the developer shall
provide financial assurances as required by this section.
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A. A developer of a timeshare plan shall deposit into an escrow account in an
acceptable escrow depository all funds that are received in Mississippi during
the purchaser’s rescission period.
An acceptable escrow depository includes banks, trust companies, saving and
loans associations, real estate broker trust accounts at such an institution, title
insurers, and underwritten title companies.
The handling of these funds shall be in accordance with an executed escrow
agreement between an escrow agreement between an escrow agent and the
developer.
Funds will be handled to assure the following:
(1) Funds may be disbursed to the developer by the escrow agent from the
escrow account or from the broker trust account only after expiration of the
purchaser’s rescission period and in accordance with the purchase contract,
subject to paragraph 2.
B. If a prospective purchaser properly cancels the purchase contract following
expiration of the cancellation period pursuant to its terms, the funds shall be
paid to the prospective purchaser or paid to the developer if the prospective
purchaser’s funds have been previously refunded by the developer.
If a developer contracts to sell a timeshare interest and the construction of the
accommodation in which the timeshare interest being conveyed is located has
not been completed, the developer, upon expiration of the rescission period,
shall continue to maintain in an escrow account all funds received by or on
behalf of the developer from the prospective purchaser under his or her
purchase contract.
The Commission shall determine the types of documentation which shall be
required for evidence of completion, including, but not limited to, a certificate
of occupancy, a certificate of substantial completion, or an inspection by the
State Fire Marshal or designee or an equivalent public safety inspection by
the appropriate agency in the applicable jurisdiction.
Unless the developer submits an alternative financial assurance in
accordance with paragraph 3., funds shall not be released from escrow until a
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certificate of occupancy, or its equivalent, has been obtained and the
rescission period has passed, and the timeshare interest can be transferred
free and clear of blanket encumbrances, including mechanics’ liens.
Funds to be released from escrow shall be released as follows:
(1) If a prospective purchaser properly cancels the purchase contract pursuant
to its terms, the funds shall be paid to the prospective purchaser or paid to the
developer if the developer has previously refunded the prospective
purchaser’s funds. (See “1 boo above)
(2) If a prospective purchaser defaults in the performance of the prospective
purchaser’s obligations under the purchase contract, the funds shall be paid to
the developer.
(3) If the funds of a prospective purchaser have not been previously disbursed
in accordance with the provisions of this paragraph 2., they may be disbursed
to the developer by the escrow agent upon the issuance of acceptable
evidence of completion of construction and closing.
C. In lieu of the provisions in paragraphs 1 and 2, the Commission may accept
from the developer a surety bond, escrow bond, irrevocable letter of credit, or
other financial assurance or arrangement acceptable to the Commission.
Any acceptable financial assurances shall be in an amount equal to or in
excess of the lesser of (1) the funds that would otherwise be placed in escrow,
or (2) in an amount equal to the cost to complete the incomplete property in
which the timeshare interest is located.
However, in no event shall the amount be less that the amount of funds that
would otherwise be placed in escrow pursuant to subparagraph a. of
paragraph 1.
D. The developer shall provide escrow account or broker trust account
information to the Commission and shall execute in writing an authorization
consenting to an audit or examination of the account by the Commission.
The developer shall make documents related to the escrow or trust account or
escrow obligation available to the Commission upon request.
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The escrow agent or broker shall maintain any disputed funds in the escrow
account until either of the following occurs:
(1) Receipt of written direction agreed to by signature of all parties.
(2) Deposit of the funds with a court of competent jurisdiction in which a civil
action regarding the funds has been filed
E. Excluding any encumbrance placed against the purchaser’s timeshare
interest securing the purchaser’s payment of purchase money financing for
the purchase, the developer shall not be entitled to the release of any funds
escrowed under this section
J. with respect to each timeshare interest and any other property or rights to
property appurtenant to the timeshare interest, including any amenities
represented to the purchaser as being part of the timeshare plan, until the
developer has provided satisfactory evidence to the Commission of one of the
following:
(1) The timeshare Interest together with any other property or rights to
property appurtenant to the timeshare interest, including any amenities
represented to the purchaser as being part of the timeshare plan, are free and
clear of any of the claims of the developer, any owner of the underlying fee, a
mortgagee, judgment creditor, or other lien holder, or any other person having
an interest in or lien or encumbrance against the timeshare interest or
appurtenant property or property rights.
(2) The developer, any owner of the underlying fee, a mortgagee, judgment
creditor, or other lien holder, or any other person having an interest in or lien
or encumbrance against the timeshare interest or appurtenant property or
property rights, including any amenities represented to the purchaser as being
part of the timeshare plan, has recorded a subordination and notice to
creditors document in the appropriate public records of the jurisdiction in
which the timeshare interest is located.
The subordination document shall expressly and effectively provide that the
interest holder’s right, lien or encumbrance shall not adversely affect, and
shall be subordinate to, the rights of the owners of the timeshare interests in
the timeshare plan regardless of the date of purchase.
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(3) The developer, any owner of the underlying fee, a mortgagee, judgment
creditor, or other lien holder, or any other person having an interest in or lien
or encumbrance against the timeshare interest or appurtenant property or
property rights, including any amenities represented to the purchaser as being
part of the timeshare plan, has transferred the subject accommodations,
amenities, or all use rights in the amenities to a nonprofit organization or
owners’ association to be held for the use and benefit of the owners of the
timeshare plan, which organization or owners association shall act as a
fiduciary to the purchasers, and the developer has transferred control of the
entity to the owners or does not exercise its voting rights in the entity with
respect to the subject accommodations or amenities:
Prior to the transfer, any lien or other encumbrance against the
accommodation or facility shall be made subject to a subordination and notice
to creditors, instrument pursuant to subparagraph b. or be free and clear of all
liens and encumbrances.
(4) Alternative arrangements have been made which are adequate to protect
the rights of the purchasers of the timeshare interests and approved by the
Commission.
F. Nothing in this section shall prevent a developer from accessing any escrow
funds if the developer has complied with paragraph 3 of this section.
G. The developer shall notify the Commission of the extent to which an
accommodation may become subject to a tax or other lien arising out of
claims against other purchasers in the same timeshare plan.
H. Developers, sellers, escrow agents, brokers and their employees and
agents have a fiduciary duty to purchasers with respect to funds required to
be deposited under these rules.
Any Mississippi broker or salesperson who fails to comply with rules
concerning the establishment of an escrow or broker trust account, deposits of
funds, and property into escrow or withdrawal there from, shall be in violation
of the Mississippi Real Estate Brokers Act of 1954, as amended, and the
Rules and Regulations of the Commission.
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The failure to establish an escrow or trust account or to place funds therein as
required under these rules is prima facie evidence of an intentional and
purposeful violation.
Source: Miss. Code Ann. §§ 73-35-35
Rule 8.10 Insurance
A. For single site timeshare plans and component sites of multi-site timeshare
plans located in this state, the timeshare instrument shall require that the
following insurance be at all times maintained in force to protect timeshare
interest owners in the timeshare plan:
(1) Insurance against property damage as a result of fire and other hazards
commonly insured against, covering all real and personal property comprising
the timeshare plan in an amount not less than 80 percent of the full
replacement value of the timeshare property.
(2) Liability insurance against death, bodily injury, and property damage
arising out of or in connection with the use, ownership, or maintenance for the
accommodations of the timeshare plan.
The amounts of the insurance shall be determined by the association but shall
not be less than five hundred thousand dollars ($500,000) to One Million
Dollars ($1,000,000) for personal injury and One Hundred Thousand Dollars
($100,000) for property damage.
B. In a timeshare use offering, the trustee, if one exists, shall be a named
coinsured, and if for any reason, title to the accommodation is not held in trust,
the association shall be named as a coinsured as the agent for each of the
timeshare interest owners. In a timeshare estate offering, the association shall
be named as a coinsured if it has title to the property or as a coinsured as
agent for each of the timeshare interests owners if title is held by the owners
as tenants in common.
Source: Miss. Code Ann. §§ 73-35-35
Rule 8.11 Advertising and Marketing:
A. No advertising shall:
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(1) Misrepresent a fact or create a false or misleading impression regarding
the timeshare plan.
(2) Make a prediction of increases in the price or value of timeshare periods.
(3) Contain any contradictory statements.
(4) Describe any improvements to the timeshare plan that will not be built or
that are described as completed when not completed. B. No promotional
device, sweepstakes, lodging certificate, gift award, premium, discount,
drawing, prize or display in connection with an offer to sell a timeshare interest
may be utilized without the applicable disclosure as follows:
(1) That the promotional device is being used for the purposes of soliciting
sales of timeshare periods;
(2) Of the name and address of each timeshare plan or business entity
participating in the program;
(3) Of the date and year when all prizes are to be awarded;
(4) Of the method by which all prizes are to be awarded;
(5) If applicable, a statement that it is a national program with multiple
sponsors and the gifts offered are not limited solely to customers of said
development but apply also to other developments.
C. The following are not considered to be advertising materials:
(1) Any stockholder communication, financial report, prospectus or other
material required to be delivered to owners, prospective purchasers or other
persons by an agency of any state or the federal government;
(2) Any communication addressed to and relating to the account of any
person who has previously executed a contract for the purchase of a
timeshare interest in a timeshare plan to which the communication relates;
(3) Any oral or written statement disseminated to the broadcast, print or other
news media, other than paid advertising, regarding plans for the acquisition or
development of timeshare property.
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However, any redistribution of such oral or written statements to a prospective
purchaser in any manner would constitute an advertisement;
(4) Any publication or material relating to the promotion of accommodations
for transient rental, so long as a mandatory tour of a timeshare plan or
attendance at a mandatory sales presentation is not a term or condition of the
availability of such accommodations, so long as the failure of the transient
renter to take a tour of a timeshare plan or attend a sales presentation does
not result in the transient renter receiving less than what was promised in
such materials;
(5) Any audio, written or visual publication or material relating to an exchange
company or exchange program providing to an existing member of that
exchange company or exchange program.
Source: Miss. Code Ann. §§ 73-35-35
Rule 8.12 Management
A. Before the first sale of a timeshare period, the developer shall create or
provide for a managing entity, which may be the developer, a separate
management firm, or an owner’s association, or some combination thereof. B.
The management entity shall act in the capacity of fiduciary to the purchasers
of the timeshare plans.
C. The duties of the management entity shall include, but are not limited to:
(1) Management and maintenance of all accommodations constituting the
timeshare plan.
(2) Preparing an itemized annual operating and reserve budget.
(3) The assessment and collection of funds for common expenses.
(4) The assessment and collection of property taxes and casualty insurance
and liability insurance against the owners, for which managing entity shall he
primarily liable.
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(5) Maintenance of all books and records concerning the timeshare plan and
making all of them reasonably available for inspection by any purchaser, or
the authorized agent of such purchaser.
Arranging for an annual independent audit to be conducted of all the books
and financial records of the timeshare plan by a certified public accountant.
A copy of the audit shall be forwarded to the officers of the owner’s
association; or, if no association exists, the owner of each timeshare period
shall be notified in writing that such audit is available upon request.
(6) Scheduling occupancy of the timeshare units so that all purchasers will be
provided the use and possession of the accommodations for which they have
contracted.
(7) Notifying purchasers of common assessments and the identity of the
managing entity.
(8) Performing any other functions and duties that are necessary and proper
to maintain the accommodations and operate the owners association as
provided in the contract or the timeshare instruments.
(9) Maintaining appropriate insurance as required by Rule 8.9 of these rules.
D. The managing entity shall not be required to provide a reserve budget for
any timeshare plan or accommodation for which a timeshare instrument has
been approved prior to adoption of these rules.
Source: Miss. Code Ann. §§ 73-35-35
Rule 8.13 Liens
A. The management entity has a lien on a timeshare period from the date an
assessment becomes due.
B. The management entity may bring an action in its name to foreclose a lien
for assessments in the manner a mortgage of real property is foreclosed and
may bring an action to recover a money judgment for the unpaid
assessments, or, when no interest in real property is conveyed, an action
under the Uniform Commercial Code.
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C. The lien is effective from the date of recording in the public records of the
county or counties in which the accommodations are located, or as otherwise
provided by the laws of the jurisdiction in which the accommodations are
located.
D. A judgment in any action or suit brought under this section may include
costs and reasonable attorney’s fees for the prevailing party.
E. Labor or materials furnished to a unit shall not be the basis for the filing of a
lien against the timeshare unit of any timeshare interest owner not expressly
consenting to or requesting the labor or materials.
Source: Miss. Code Ann. §§ 73-35-35
Rule 8.14 Owner Referrals
A. Referrals of prospective customers to the developer by any existing
timeshare owner shall be permitted, without the owner holding a real estate
license and compensation may be paid to the referring owner, only under the
following circumstances:
(1) The existing timeshare owner refers no more than twenty (20) prospective
customers in any twelve (12) month period; and
(2) The existing timeshare owner limits his or her activities to referring
customers to the developer or the developer’s employees or agents and does
not show, discuss terms or conditions of purchase or otherwise participate in
any negotiations with the purchase of a timeshare interest.
Source: Miss. Code Ann. §§ 73-35-35 Part 1601
Chapter 9: Errors and Omissions Insurance Coverage
Rule 9.1 Administration
A. Invitations to bid on the Errors and Omissions coverage shall be by
advertisement published in the appropriate newspaper having state‐wide
coverage.
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B. Selection and approval of the Errors and Omissions Insurance carrier shall
be by Commissioners utilizing consultants or committees as deemed
appropriate by the Commission.
C. Upon approval of the carrier, invoices shall be sent via First Class Mail to
all licensees; including companies and corporations; along with the necessary
information describing the various available coverages, the period of coverage
and the minimum requirements for independent coverage if desired by a
licensee.
D. Coverage shall be a twelve-month period beginning October 1, 1994, and
continuing thereafter on twelve-month basis.
E. Premiums shall be collected by the carrier or the Commission, at the
Commission’s discretion.
F. The Commission may maintain computer or written records as required for
accurate documentation and administration of this program.
Source: Miss. Code Ann. §§ 73-35-35
Rule 9.2 Licensee Status
A. Active licensees not submitting the required premium or providing the
required proof of acceptable independent coverage within 30 days after the
due date of the premium shall be placed automatically on inactive status at
the end of the 30-day period.
B. Inactive licensees will not be required to pay the premium until changing to
active status and the premium will be assessed on a pro rata basis. However,
inactive licensees will be invoiced at the beginning of the policy period. They
may pay the full premium at that time if they desire.
C. New licensees will be given notice when their license is issued to provide
proof of coverage within 30 days of the issuance of license or pay the
premium specified on a pro rata basis. Failure to do so will result in their
license being changed to inactive status.
Source: Miss. Code Ann. §§ 73-35-35
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Rule 9.3 Independent Coverage
A. Licensees having independent coverage shall submit proof of coverage by
the beginning of the policy period as set forth above.
Any deficiency in supplying proof of coverage must be corrected within no
more than 30 days after the beginning of the policy period. Proof of coverage
shall be by a “Certificate of Insurance” provided by the independent insurance
carrier.
B. Minimum requirements of independent coverage shall be:
(1) Coverage must be for all activities for which a real estate license is
required under this Chapter.
(2) A per claim limit is not less than $100,000.00.
(3) The deductible is not more than $2,500.00 per licensee, per claim, for any
damages and the deductible is not more than $1,000.00 per licensee, per
claim, for defense costs.
(4) The independent insurance carrier shall agree to a non‐cancelable policy
or provide a letter of commitment to notify the Commission 30 days prior to
intention to cancel.
Source: Miss. Code Ann. §§ 73-35-35 Title 30: Professions and Occupations
Part 1602: Oral Proceedings & Declaratory Opinions
Part 1602 Chapter 1: Oral Proceedings Rule 1.1
Scope. These rules apply to all oral proceedings held for the purpose of
providing the public with an opportunity to make oral presentations on
proposed new rules and amendments to rules before the Mississippi Real
Estate Commission.
Source: Miss. Code Ann. § 25-43-3.104 (Rev. 2010).
Rule 1.2 When Oral Proceedings will be scheduled on Proposed Rules.
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The Commission will conduct an oral proceeding on a proposed rule or
amendment if requested by a political subdivision, an agency or ten (10)
persons in writing within twenty (20) days after the filing of the notice of the
proposed rule.
Source: Miss. Code Ann. § 25-43-3.104 (Rev. 2010). Rule 1.3 Request
Format.
Each request must be printed or typewritten and or must be in legible
handwriting.
Each request must be submitted on standard business letter-size paper (81/2
inches by 11 inches). Requests may be in the form of a letter addressed to the
Commission and signed by the requestor(s).
Source: Miss. Code Ann. § 25-43-3.104 (Rev. 2010).
Rule 1.4 Notification of Oral Proceeding.
The date, time and place of all oral proceedings shall be filed with the
Secretary of State’s office and mailed to each requestor.
The oral proceedings will be scheduled no earlier than twenty (20) days from
the filing of this information with the Secretary of State.
Source: Miss. Code Ann. § 25-43-3.104 (Rev. 2010).
Rule 1.5 Presiding Officer.
The Commission Administrator or his designee, who is familiar with the
substance of the proposed rule, shall preside at the oral proceeding on a
proposed rule.
Source: Miss. Code Ann. § 25-43-3.104 (Rev. 2010).
Rule 1.6 Public Presentation and Participation.
At an oral proceeding on a proposed rule, persons may make oral statements
and make documentary and physical submissions, which may include data,
views, comments or arguments concerning the proposed rule.
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A. Persons wishing to make oral presentations at such a proceeding shall
notify the Board at least one business day prior to the proceeding and indicate
the general subject of their presentations.
The presiding officer in his or her discretion may allow individuals to
participate that have not previously contacted the Commission.
B. At the proceeding, those who participate shall indicate their names and
addresses, identify any persons or organizations they may represent, and
provide any other information relating to their participation deemed
appropriate by the presiding officer.
C. The presiding officer may place time limitations on individual oral
presentations when necessary to assure the orderly and expeditious conduct
of the oral proceeding.
To encourage joint oral presentations and to avoid repetition, additional time
may be provided for persons whose presentations represent the views of
other individuals as well as their own views.
D. Persons making oral presentations are encouraged to avoid restating
matters that have already been submitted in writing.
E. There shall be no interruption of a participant who has been given the floor
by the presiding officer, except that the presiding officer may in his or her
discretion interrupt or end the participant’s time where the orderly conduct of
the proceeding so requires.
Source: Miss. Code Ann. § 25-43-3.104 (Rev. 2010).
Rule 1.7 Conduct of Oral Proceeding.
A. Presiding Officer – The presiding officer shall have authority to conduct the
proceeding in his or her discretion for the orderly conduct of the proceeding.
The presiding officer shall:
(1) call proceeding to order;
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(2) give a brief synopsis of the proposed rule, a statement of the statutory
authority for the proposed rule, and the reasons provided by the Board for the
proposed rule;
(3) call on those individuals who have contacted the Commission about
speaking on or against the proposed rule;
(4) allow for rebuttal statements following all participant’s comments; and
(5) adjourn the proceeding.
B. Questions. – The presiding officer, where time permits and to facilitate the
exchange of information, may open the floor to questions or general
discussion.
The presiding officer may question participants and permit the questioning of
participants by other participants about any matter relating to that rule-making
proceeding, including any prior written submissions made by those
participants in that proceeding; but no participant shall be required to answer
any question.
C. Physical and Documentary Submissions. – Submissions presented by
participants in an oral proceeding shall be submitted to the presiding officer.
Such submissions become the property of the Commission and are subject to
the Commission’s public records request procedure.
D. Recording. – The Commission may record oral proceedings by
stenographic or electronic means.
Source: Miss. Code Ann. § 25-43-3.104 (Rev. 2010).
Part 1503 Chapter 2: Declaratory Opinions
Rule 2.1 Scope.
These rules set forth the Mississippi Real Estate Commission’s rules
governing the form, content and filing of requests for declaratory opinions, and
the Commission’s procedures regarding the requests.
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These rules are intended to supplement and be read in conjunction with the
provisions of the Mississippi Administrative Procedures Law, which may
contain additional information regarding the issuance of declaratory opinions.
In the event of any conflict between these rules and the Mississippi
Administrative Procedures Law, the latter shall govern.
Source: Miss. Code Ann. § 25-43-2-103 (Rev. 2010).
Rule 2.2. Persons Who May Request Declaratory Opinions.
Any person with a substantial interest in the subject matter may request a
declaratory opinion from the Commission by following the specified
procedures.
A substantial interest in the subject matter means: an individual, business,
group or other entity that is directly affected by the Commission’s
administration of the laws within its primary jurisdiction.
Primary jurisdiction of the agency means the agency has a constitutional or
statutory grant of authority in the subject matter at issue.
Source: Miss. Code Ann. § 25-43-2-103 (Rev. 2010).
Rule 2.3 Subjects Which May Be Addressed in Declaratory Opinions.
The Commission will issue declaratory opinions regarding the applicability to
specified facts of:
A. a statute administered or enforced by the Commission or
B. a rule promulgated by the Commission.
The Commission will not issue a declaratory opinion a statute or rule which is
outside the primary jurisdiction of the Commission.
Source: Miss. Code Ann. § 25-43-2-103 (Rev. 2010).
Rule 2.4 Circumstances In Which Declaratory Opinions Will Not Be Issued.
The Commission may, for good cause, refuse to issue, a declaratory opinion.
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The circumstances in which declaratory opinions will not be issued include,
but are not necessarily limited to: A. Lack of clarity concerning the question
presented;
B. There is pending or anticipated litigation, administrative action, or other
adjudication which may either answer the question presented by the request
or otherwise make an answer unnecessary;
C. The statute or rule on which a declaratory opinion is sought is clear and not
in need of interpretation to answer the question presented by the request;
D. The facts presented in the request are not sufficient to answer the question
presented;
E. The request fails to contain information required by these rules or the
requestor failed to follow the procedure set forth in these rules;
F. The request seeks to resolve issues which have become moot, or are
abstract or hypothetical such that the requestor is not substantially affected by
the statute or rule on which a declaratory opinion is sought;
G. No controversy exists concerning the issue as the requestor is not faced
with existing facts or those certain to arise which raise a question concerning
the application of the statute or rule;
H. The question presented by the request concerns the legal validity of a
statute or rule;
I. The request is not based upon facts calculated to aid in the planning of
future conduct but is, instead, based on past conduct in an effort to establish
the effect of that conduct;
J. No clear answer is determinable;
K. The question presented by the request involves the application of a criminal
statute or a set of facts which may constitute a crime;
The answer to the question presented would require the disclosure of
information which is privileged or otherwise protected by law from disclosure;
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L. The question is currently the subject of an Attorney General’s opinion
request or has been answered by an Attorney General’s Opinion;
M. A similar request is pending before this agency or any other agency or a
proceeding is pending on the same subject matter before any agency,
administrative or judicial tribunal, or where such an opinion would constitute
the unauthorized practice of law;
N. Where issuance of a declaratory opinion may adversely affect the interests
of the State, the Commission or any of their officers or employees in any
litigation which is pending or may reasonably be expected to arise;
O. The question involves eligibility for a license, permit, certificate or other
approval by the Commission or some other agency, and there is a statutory or
regulatory application process by which eligibility for said license, permit,
certificate or other approval would be determined.
Source: Miss. Code Ann. § 25-43-2-103 (Rev. 2010).
Rule 2.5 Written Request Required.
Each request must be printed or typewritten and or must be in legible
handwriting.
Each request must be submitted on standard business letter-size paper (81/2
inches by 11 inches).
Requests may be in the form of a letter addressed to the Board.
Source: Miss. Code Ann. § 25-43-2-103 (Rev. 2010).
Rule 2.6 Where to Send Requests.
All requests must be sent to the Commission Administrator,
The Mississippi Real Estate Commission:
(1) by mail at P.O. Box 12685, Jackson, MS 39236; or
(2) delivered to 2506 Lakeland Drive, Suite 300, Flowood, MS 39232; or
36(3) sent via facsimile to (601 932-2990.
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All requests must be sent to the attention of Declaratory Opinion Request as
follows: ATTN: DECLARATORY OPINION REQUEST
Source: Miss. Code Ann. § 25-43-2-103 (Rev. 2010).
Rule 2.7 Name, Address, and Signature of Requestor.
Each request must include the full name, telephone number and mailing
address of the requestor.
All requests shall be signed by the person filing the request, who shall attest
that the request complies with the requirements set forth in these rules,
including but not limited to a full, complete and accurate statement of relevant
facts and that there are no related proceedings pending before any other
administrative or judicial tribunal.
Source: Miss. Code Ann. § 25-43-2-103 (Rev. 2010).
Rule 2.8 Question Presented.
Each request shall contain the following:
A. A clear and concise statement of all facts on which the opinion is
requested;
B. A citation to the statute or rule at issue;
C. The question(s) sought to be answered in the opinion, stated clearly;
D. A suggested proposed opinion from the requestor, stating the answers
desired by petitioner and a summary of the reasons in support of those
answers;
E. The identity of all other known persons involved in or impacted by the
described factual situation, including their relationship to the facts, name,
mailing address and telephone number; and
F. A statement to show that the person seeking the opinion has a substantial
interest in the subject matter.
Source: Miss. Code Ann. § 25-43-2-103 (Rev. 2010).
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Rule 2.9 Time for Board Response.
Within forty-five (45) days after the receipt of a request for a declaratory
opinion which complies with the requirements of these rules, the Commission
shall, in writing:
A. Issue a declaratory opinion regarding the specified statute or rule as
applied to the specified circumstances;
B. Decline to issue a declaratory opinion, stating the reasons for its action; or
C. Agree to issue a declaratory opinion by a specified time but not later than
ninety (90) days after receipt of the written request.
D. The forty-five (45) day period shall begin running on the first State of
Mississippi business day on or after the request is received the Board,
whichever is sooner.
Source: Miss. Code Ann. § 25-43-2-103 (Rev. 2010).
Rule 2.10 Opinion Not Final for Sixty Days.
A declaratory opinion shall not become final until the expiration of sixty (60)
days after the issuance of the opinion.
Prior to the expiration of sixty (60) days, the Commission may, in its discretion,
withdraw or amend the declaratory opinion for any reason which is not
arbitrary or capricious.
Reasons for withdrawing or amending an opinion include, but are not limited
to, a determination that the request failed to meet the requirements of these
rules or that the opinion issued contains a legal or factual error.
Source: Miss. Code Ann. § 25-43-2-103 (Rev. 2010).
Rule 2.11 Notice by Board to third parties.
The Commission may give notice to any person, agency or entity that a
declaratory opinion has been requested, and may receive and consider data,
facts arguments and opinions from other persons, agencies or other entities
other than the requestor.
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Source: Miss. Code Ann. § 25-43-2-103 (Rev. 2010).
Rule 2.12 Public Availability of Requests and Declaratory Opinions.
Declaratory opinions and requests for declaratory opinions shall be available
for public inspection and copying in accordance with the Public Records Act
and the Commission public records request procedure.
All declaratory opinions and requests shall be indexed by name and subject.
Declaratory opinions and requests which contain information which is
confidential or exempt from disclosure under the Mississippi Public Records
Act or other laws shall be exempt from this requirement and shall remain
confidential.
Source: Miss. Code Ann. § 25-43-2-103 (Rev. 2010).
Rule 2.13 Effect of a Declaratory Opinion.
The Commission will not pursue any civil, criminal or administrative action
against a person who is issued a declaratory opinion from the Commission
and who, in good faith, follows the direction of the opinion and acts in
accordance therewith unless a court of competent jurisdiction holds that the
opinion is manifestly wrong.
Any declaratory opinion rendered by the Commission shall be binding only on
the Mississippi Real Estate Commission and the person to whom the opinion
is issued.
No declaratory opinion will be used as precedent for any other transaction or
occurrence beyond that set forth by the requesting person.
Source: Miss. Code Ann. § 25-43-2-103 (Rev. 2010).
Title 30: Professions and Occupations Part 1603
Chapter 1: Board Organization Rule 1.1 Members.
The Mississippi Real Estate Commission consists of five (5) persons who are
appointed by the Governor with the advice and consent of the Senate. Each
appointee shall have been a resident and citizen of Mississippi for at least six
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(6) years prior to their appointment and shall have been a real estate broker
for at least five (5) years.
There shall be at least one (1) Commissioner from each Congressional
District, as such Districts are constituted as of July 1, 2002, and one (1)
additional Commissioner shall be appointed without regard to residence in any
particular Congressional District.
Any member of the Commission may be reappointed by the Governor. The
Commission shall organize by selecting from its members a Chairman and
may do all things necessary and convenient to promulgate rules and
regulations.
Source: Miss. Code Ann. § 73-35-5