Current Stats: Monthly Licensee Count as of August 1, 2024

Disciplinary Actions

360 REAL ESTATE LLC (SPRING LAKE) – By Consent, the Commission suspended the firm license for a period of 24 months, effective March 1, 2024. The Commission then stayed the suspension following a 6-month active period upon certain conditions. The Commission found that the Firm provided property management services and maintained a security deposit trust account and a rental trust account. An audit of these accounts revealed a number of deficiencies, including negative balances for properties no longer managed by the Firm, deficit spending, comingling of funds, failure to perform monthly reconciliations, failure to note all identifications on ledgers and deposit tickets and a shortage in both the security deposit and rental accounts.   

NICOLE LOUISE BURGER (SPRING LAKE) – By Consent, the Commission suspended the broker license of  Burger for a period of 24 months, effective March 1, 2024. The Commission then stayed the suspension following a 6-month active period upon certain conditions. An audit of Burger’s property management trust account(s) revealed a number of deficiencies, including negative balances for properties no longer managed by  Burger, deficit spending, comingling of funds, failure to perform monthly reconciliations, failure to note all identifications on ledgers and deposit tickets and a shortage in both the security deposit and rental accounts. 

DANIEL JAMES DEMERS (HIGH POINT) – By Consent, the Commission suspended the broker license of Demers for a period of 12 months, effective May 1, 2024. The Commission then stayed the suspension following a 3-month active period upon certain conditions. The Commission found that Demers served as the listing agent in the subject transaction. Demers advertised the subject property for sale and included a square footage measurement in the advertisement. Demers failed to measure the subject property and instead relied upon the square footage measurement listed on the tax card to advertise the subject property. 

NINA MARIE DESJEAN (KNOXVILLE, TN) – The Commission accepted the voluntary surrender of the real estate license of Desjean, effective August 14, 2024. The Commission dismissed without prejudice allegations that Desjean violated provisions of the Real Estate License Law and Commission Rules. Desjean neither admitted nor denied misconduct. 

LAKE WYLIE MARKET CENTER LLC (CHARLOTTE) – By Consent, the Commission suspended the firm license for a period of 3 months, effective August 1, 2024. The Commission then stayed the suspension in its entirety upon certain conditions. The Commission found that in 2022, a broker affiliated with the Firm acted as a listing agent and advertised a property as “remodeled top to bottom” but failed to discover and disclose material facts related the property and remodel.  The Firm has instituted additional broker education and policies regarding advertising, renovations, and permitting.  

JAMIE L MCDEVITT (PINEHURST) – By Consent, the Commission suspended the broker license of McDevitt for a period of 2 years, effective August 15, 2024. The Commission then stayed the suspension in its entirety upon certain conditions. The Commission found that in 2022, McDevitt acted as buyer agent for an out-of-state buyer and drafted legal terms to create an escalation clause as part of an Offer to Purchase and Contract. McDevitt participated in disclosing the terms of a competing offer to their buyer-client without the competing offeror’s express consent. 

MCDEVITT TOWN & COUNTRY PROPERTIES (PINEHURST) – By Consent, the Commission suspended the firm license for a period of 2 years, effective August 15, 2024. The Commission then stayed the suspension in its entirety upon certain conditions. The Commission found that in 2022, the Firm acted as buyer agent for an out-of-state buyer. The individual broker acting as buyer agent drafted legal terms to create an escalation clause as part of an Offer to Purchase and Contract and participated in disclosing the terms of a competing offer to their buyer-client without the competing offeror’s express consent. 

DAVID PRIESTLEY (GREENSBORO) – The Commission accepted the voluntary surrender of the real estate license of Priestley, effective August 1, 2024. The Commission dismissed without prejudice allegations that Priestley violated provisions of the Real Estate License Law and Commission Rules. Priestley neither admitted nor denied misconduct. 

JACQUELYN A TINGEN (BENSON) – By Consent, the Commission reprimanded Tingen effective August 31, 2024. The Commission found that Tingen represented the buyer of the subject property and failed to independently confirm the acreage of the subject property prior to her client’s purchase.   

JOHN M SYLVIA (CHARLOTTE) – By Consent, the Commission suspended the broker license of Sylvia for a period of 3 months, effective August 1, 2024. The Commission then stayed the suspension in its entirety upon certain conditions. The Commission found that in 2022, a broker affiliated with Sylvia acted as a listing agent and advertised a property as “remodeled top to bottom” but failed to discover and disclose material facts related to the property and remodel. The Commission noted that Sylvia has instituted additional broker education and policies regarding advertising, renovations, and permitting. 

JOANN M WAINIO (WILMINGTON) – By Consent, the Commission reprimanded Wainio effective August 1, 2024. The Commission found that Wainio acted as a listing agent in a subject transaction and misrepresented in an advertisement that the subject property was built in 1990. The sellers disclosed on the RPOADS that the subject property was built in 1980. Buyers went under contract and discovered the HUD manufacturing data plate which stated the subject property was built in 1977.   

SELL YOUR HOME SERVICES LLC (HIGH POINT) – By Consent, the Commission suspended the firm license for a period of 12 months, effective May 1, 2024. The Commission then stayed the suspension following a 3-month active period upon certain conditions. The Commission found that Sell Your Home Services LLC served as the listing firm in the subject transaction. The Firm advertised the subject property for sale and included a square footage measurement in the advertisement. The Firm failed to measure the subject property and instead relied upon the square footage measurement listed on the tax card to advertise the subject property. 

WOODS & WATER REALTY LLC (KNOXVILLE) – The Commission accepted the voluntary surrender of the real estate firm license, effective August 14, 2024. The Commission dismissed without prejudice allegations that the Firm violated provisions of the Real Estate License Law and Commission Rules. The Firm neither admitted nor denied misconduct. 

Case Study: Dual Agency

FACTS:  

A BIC designates Broker A to represent a seller-client, and Broker B to represent a buyer-client after both principals provide written authorization for designated dual agency. Prior to being designated dual agents, neither Broker A nor Broker B had prior confidential information about the principals. Further, the BIC reminds Broker A and Broker B not to share any confidential information about their clients without the clients’ permission.

The next day, Broker A and Broker B have a conversation while in the office. Broker A tells Broker B that their seller-client will accept any amount over asking price because they are going through a tumultuous divorce.

Broker B shares the information about the seller with their buyer-client. Later that evening, the buyer-client submits an offer that is $5k over the asking price to the seller. The seller accepts the offer, and the parties go under contract.

ISSUE: Did Broker A comply with Rule 58A .0104?

ANALYSIS:  No. Rule 58A .0104(k) and (l) state the broker acting as a designated dual agent for one party shall not, without their client’s permission, disclose to the other party or the broker designated to represent the other party: “(1) that a party may agree to a price, terms, or any conditions of sale other than those offered; (2) the motivation of a party for engaging in the transaction, unless disclosure is otherwise required by statute or rule; and (3) any information about a party that the party has identified as confidential, unless disclosure is otherwise required by statute or rule”.

The advantage of designated dual agency over standard dual agency is that each of the firm’s clients (seller and buyer) receive representation more like single agency than dual agency. Designated dual agency allows agents to fully represent the interests of their respective clients, allowing agents to advise their clients during the transaction. This is different than the typical dual agency situation where client advocacy is lost because the dual agent may not advocate for one client to the detriment of the other client.

Moreover, a designated dual agent is required to act only in the best interests of their client, and this includes ensuring confidential information is not shared with anyone, including the opposing designated party, without permission, unless otherwise required by law.

The Commission recommends a BIC develop written office procedures and policies to maintain the confidentiality of client information by preventing improper disclosure in designated dual agency transactions.

In this scenario, Broker A was designated to represent the exclusive interest of the seller-client and should not have disclosed any confidential information to Broker B without the seller’s permission pursuant to Rule 58A .0104(k).  

If, as here, a designated agent learns confidential information after becoming designated, they have an obligation to represent their clients’ interest to the best of their ability and disclose the information. However, Broker A and the brokerage may be liable due to the disclosure of confidential information by Broker A. Moreover, as a result of Broker A disclosing confidential information, i.e., that the seller-client would accept any price over asking due to their pending divorce, they may be subject to disciplinary action by the Commission for failing to adhere to Rule 58A .0104.

RESOURCES:

N.C.G.S. § 93A-6(a)(8), and 93A-6(a)(10)

License Law and Commission Rules: Rule 58A .0104(k)(l)

Articles: 2022-2023 General Update Course

Dual Agency – Authorization, Disclosure and Safeguarding Confidential Information

Tech Corner: PDF to Speech

Video Link: https://share.synthesia.io/f081de05-df29-4a33-9a8b-45f5e5b125ab[MB1] 

Do you need documents read aloud? Did you know that Commission publications in a PDF format can be read aloud as well? Take a look at this video to learn more.

Staff Appearances

Christy Evans, Consumer Protection Officer, spoke at Coldwell Banker Howard Perry and Walston, on August 6th.

Steve Fussel, Chief Consumer Protection Officer, spoke at PNC Bank, on August 7th.

Brian Heath, Consumer Protection Officer, spoke at Premier Advantage Realty, on August 7th.

Bruce Rinne, Information Officer, spoke at Raleigh Regional Association of REALTORS®, on August 7th.

Charlie Moody, Deputy Legal Counsel, spoke at Orange Chatham Association of REALTORS®, on August 15th.

Bruce Rinne, Information Officer, spoke at Lantern Realty and Development LLC, on August 20th.

Miriam Baer, Executive Director, spoke at the Neuse River Region Association of REALTORS®, on August 22nd.

Dee Bigelow, Information Officer, spoke at Keller Williams Realty Elite, on August 27th.

The Road Ahead: After the Investigation

Part Two of an in-depth Five-Part series on the Complaint and Disciplinary Process in Regulatory Affairs. See Part One “Navigating Complaints:  A How-to Guide” from the August 2024 eBulletin.  

In Part One of our series, we explored the complaint and investigative process in Regulatory Affairs.  In Part Two, we shift our focus to an examination of what happens once an investigation is complete.  

Once an investigation is complete, Commission staff conduct a thorough review of the evidence obtained in order to make a determination as to the appropriate course of action in a case.  If there is sufficient evidence of the violation of the Real Estate License Law (NCGS 93A) or Commission rules (NCAC 58A), the case is assessed to determine if it meets the legal standard for “probable cause.” Probable cause exists when there is sufficient evidence to cause a reasonably prudent person to believe that a violation of the License Law and/or Commission rules has occurred.   

If there is a lack of sufficient evidence that there has been a violation, the case is closed without further action. Sufficient evidence means evidence that supports a violation and is admissible in an administrative hearing. A Commission staff attorney reviews all cases once they are complete to make this assessment.   A case also may be closed without action when the investigation reveals a lack of jurisdiction. A case that is closed without action does not constitute a disciplinary action.  It also does not necessarily mean the broker used best practices in the situation. 

A case may be closed with a warning to the respondent when there is an alleged violation, but the misconduct is technical in nature or a minor deviation and does not warrant further action. A closing letter is issued that cautions the respondent from taking similar action in the future and reminds the respondent of the relevant law and/or rules applicable to the conduct. The closing letter containing the warning remains permanently in the licensee’s record but does not constitute a disciplinary action.    

When it appears that there may be probable cause to warrant disciplinary action, the case undergoes more in-depth consideration. After the investigation is complete, the case is brought to the entire legal team and the Executive Director for review and discussion. The case is then presented to the Commission for its determination of probable cause with a recommendation from the Executive Director to either order a hearing or close the case with a warning, or simply close the matter without action.   

Only the Commission members themselves can order a hearing against a respondent (or direct staff to pursue injunctions against respondents practicing real estate brokerage without a license). The Commission receives a summary of the allegations and evidence produced during the course of the investigation.  To ensure impartiality and fairness and avoid conflicts of interest, this summary is anonymous.  Commission members who may have prior knowledge of a respondent are recused from the consideration of the case.  If the Commission finds probable cause in a case, the Commission may order a hearing, or issue a formal “close and warn” letter. A closing letter that cautions the respondent(s) is not a disciplinary action.  If the Commission does not find probable cause, the case is closed without further action.   

After the Commission makes a determination as to probable cause, a case status report (CSR) is sent to the respondent and complaining witness. The CSR informs the recipient of the Commission’s decision. Most importantly, the CSR and accompanying letter informs respondents against whom a hearing is called of the next steps in the regulatory process and the respondent’s rights by explaining:   

1. what a notice of hearing is and its timing requirement;   
2. that hearings are conducted in accordance with Article 3A, Chapter 150B of the North Carolina General Statutes;   
3. the respondent’s right to consult and/or retain a private attorney, the duties of a staff attorney and attorney from the Attorney General’s Office, and how to postpone or continue the hearing from its original set date;   
4. the hearing process, its procedures, and information regarding settlements;   
5. that the Commission cannot resolve civil disputes between private parties, and any aggrieved parties should consult with a private attorney as to such other remedies;   
6. how the Commission renders its decision, provides notice, and the respondent’s right to appeal the Commission’s decision;   
7. that the actions taken by the Commission are a matter of public record, and how disciplinary actions are published; and  
8. how the respondent may communicate with the assigned staff attorney.  

Commission staff strongly encourage a respondent to seek the advice of a private attorney. Staff attorneys can provide information to respondents on procedural aspects of a case; however, they cannot give legal advice to respondents.  

Voluntary Surrender  

A respondent may ask to voluntarily surrender the respondent’s license for a specified or permanent period without the need for a hearing. The staff attorney assigned to handle the case must consider requests for a voluntary surrender on a case-by-case basis; there are situations when it is not appropriate. If it is appropriate and a respondent consents to a voluntary surrender, the respondent does not expressly admit or deny misconduct and surrenders any renewal or reinstatement right the respondent may possess. This arrangement is reflected in writing and is referred to as a Consent to Voluntary Surrender (CVS).  The CVS must be signed by the respondent, and if applicable by the respondent’s attorney and must be presented to and approved by the Commission before it is effective.   To learn more about the complaint process or to file a complaint, go to the Commission’s website, or contact Regulatory Affairs at RA@ncrec.gov or 919-719-9180.

Effective July 1, 2025: New Human Trafficking Awareness Requirements for NC Vacation Rentals

House Bill 973 changed the laws relating to human trafficking in lodging establishments and vacation rentals. Starting July 1, 2025, property managers listing vacation rentals in North Carolina must implement a procedure for reporting suspected human trafficking. This new mandate is part of N.C. Gen. Stat. § 42A-39(b) and requires property managers, along with their employees and third-party contractors involved in listing, supervising, maintaining, housekeeping, and check-in/check-out services for vacation rentals, to undergo human trafficking awareness training. 

Mandatory Training for All Staff Involved in Vacation Rentals 

The North Carolina Department of Labor, in collaboration with the North Carolina Human Trafficking Commission, the North Carolina Restaurant and Lodging Association, and the Department of Health and Human Services, will develop or identify appropriate training courses. These courses will be accessible electronically, in person, or in a classroom setting at no cost to ensure all individuals required to complete the training are well-informed and educated about human trafficking. 

Training Deadlines and Requirements 

For vacation rentals listed on or after July 1, 2025, property managers must complete the training before the rental is listed. Employees and third-party contractors must complete the training within 60 days of starting their service and then every two years. For rentals already listed before July 1, 2025, all property managers, employees, and contracted individuals must complete their training by June 30, 2027, and renew every two years thereafter. 

Role of Accommodation Facilitators 

Accommodation facilitators, including real estate brokers, that market and accept payment for the rental, or list a rental on a forum, platform, or other application for a fee or other consideration shall notify property managers of their training requirements and require property managers to certify that the required training has been completed. N.C. Gen. Stat. § 42A-39(e).  

Penalties for Non-Compliance 

Non-compliance with these requirements carries significant penalties: $500 for the first violation, $1,000 for the second, and $2,000 for each subsequent violation. Additionally, it is considered an unfair trade practice for property managers to intentionally misstate their completion of the required human trafficking awareness training.  These measures aim to increase vigilance and education around human trafficking, ensuring that vacation rental properties in North Carolina contribute to a safer and more aware community.

Did You Know: Carryover Credit for that Extra CE Elective

You may have just finished your Continuing Education (CE) requirements for the 2023-2024 license year, but it is never too early to complete your CE courses. In fact, if you wish to really get a jump start on your CE education, it is possible to carry over credit for one Elective course to the following license year.

Let’s say that you have already taken a NCREC-approved Elective CE course for the current 2024-2025 license year. Now you receive information about another Elective course that you would really like to take, but you are sad that it will not also provide CE credit. Good news! While licensees can always take as many courses as they wish each year for educational purposes, they can receive CE Elective credit for up to 2 NCREC-approved courses: one credit for the current license year and one course credit will carryover for Elective CE credit in the next license year.

Be aware that carry over credit is not possible for any Update course since Update courses must be taken for credit only in the license year for which they are written. The Commission’s 12-hour Broker-in-Charge course is the only Elective course that can only be credited in the year in which it is completed.

Reminder: Guess What? You Can Take Your CE Now!

Have you taken your CE courses for 2024-2025? It is not too early for you to complete your required CE for this license year.

Video: https://share.synthesia.io/aca6331b-a651-4715-b0ba-d0f1f4a73185

Reminder: Firm Addresses

Is your firm address the same as your primary residence? If so, did you know that your primary residence address will be listed in Commission records?

Brokers should understand that their firm address is considered public information and will be displayed on the North Carolina Real Estate Commission’s website. If a broker is using their home address as their principal place of business, the Commission will publish the brokers’ home address in their license record, and it will be accessible to the public. The Commission is unable to restrict the display of this information on the Commission’s website.