2020 Georgia Code
Title 43 - Professions and Businesses
Chapter 40 - Real Estate Brokers and Salespersons
§ 43-40-1. Definitions

As used in this chapter, the term:

1. "Associate broker" means a person who acts on behalf of a real estate broker in performing any act authorized by this chapter to be performed by the broker.
2. "Broker" means any person who, for another, and who, for a fee, commission, or any other valuable consideration or with the intent or expectation of receiving the same from another:
   1. Negotiates or attempts to negotiate, or assists in procuring prospects for the listing, sale, purchase, exchange, renting, lease, or option for any real estate or of the improvements thereon;
   2. Holds himself or herself out as a referral agent for the purpose of securing prospects for the listing, sale, purchase, exchange, renting, lease, or option for any real estate;
   3. Collects rents, assessments, or other trust funds or attempts to collect rents, assessments, or other trust funds;
   4. Is employed by or on behalf of the owner or owners of lots, time-share intervals, or other parcels of real estate at a salary, fee, commission, or any other valuable consideration to sell such real estate or any part thereof in lots or parcels or intervals or other disposition thereof;
   5. Engages in the business of charging an advance fee or contracting for collecting of a fee, other than an advertising fee, in connection with any contract whereby he or she undertakes primarily to promote the sale of real estate either through its listing in a publication issued primarily for such purpose, or for referral of information concerning such real estate to brokers, or both;
   6. Auctions or offers or attempts or agrees to auction real estate;
   7. Buys or offers to buy, sells or offers to sell, or otherwise deals in options to buy real estate;
   8. Performs property management services or community association management services;
   9. Provides or attempts to provide to any party to a real estate transaction consulting services designed to assist the party in the negotiations or procurement of prospects for the listing, sale, purchase, exchange, renting, lease, or option for any real estate or the improvements thereon; or
   10. Advertises or holds himself or herself out as engaged in any of the foregoing.

   (2.1) "Brokerage agreement" means an express written contract wherein the client promises to pay the real estate broker a valuable consideration or agrees that the real estate broker may receive a valuable consideration from another in consideration of the broker's producing a seller, buyer, tenant, or landlord ready, able, and willing to sell, buy, or rent the property or in consideration of the broker's performing property management services or performing community association management services.

3. "Commission" means the Georgia Real Estate Commission.
4. "Commissioner" means the real estate commissioner.

   (4.1) "Community association" means an owner organization of a residential or mixed use common interest realty association in which membership is mandatory as an incident of ownership within the development, such as condominiums, cooperatives, homeowner associations, timeshares, lot division with restrictions in management, and other forms of common interest or planned developments wherein there is a common management.

   (4.2) "Community association management services" means the provision, for a valuable consideration, to others of management or administrative services on, in, or to the operation of the affairs of a community association, including, but not limited to, collecting, controlling, or disbursing the funds; obtaining insurance, arranging for and coordinating maintenance to the association property; and otherwise overseeing the day-to-day operations of the association.

   (4.3) "Community association manager" means a person who acts on behalf of a real estate broker in providing only community association management services.

   (4.4) "Firm" means any business entity, including, but not limited to, a corporation, partnership, limited liability company, or sole proprietorship.

5. "Licensee" means any person who is licensed as a community association manager, salesperson, associate broker, or broker.

   (5.1) "Ministerial acts" means those acts related to real estate brokerage activities which a licensee or a licensee's employee performs and which do not require discretion or the exercise of the licensee's own judgment.

6. "Person" means individuals and firms.
7. "Property management services" means the provision, for a valuable consideration, to another of marketing, including referring prospective tenants; leasing; physical, administrative, or financial maintenance; and overall management of real property; or supervision of the foregoing activities for another pursuant to a property management agreement.
8. "Purchaser" means a person who acquired or attempts to acquire or succeeds to an interest in land.
9. "Real estate" means condominiums and leaseholds, as well as any other interest or estate in land, whether corporeal, incorporeal, freehold or nonfreehold and whether the real estate is situated in this state or elsewhere; and shall also include a mobile home when such mobile home is affixed to land. "Mobile home," as used in this paragraph, means any factory-built structure or structures equipped with the necessary service connections and made so as to be readily movable as a unit or units and designed to be used as a dwelling unit or units.
10. "Salesperson" means any person, other than an associate broker, who acts on behalf of a real estate broker in performing any act authorized by this chapter to be performed by the broker.
11. "State" means any state, district, territory, possession, or province of the United States or Canada and any sovereign nation or any political subdivision of such sovereign nation.

(Ga. L. 1925, p. 325, § 2; Ga. L. 1927, p. 307, §§ 21, 22; Ga. L. 1929, p. 316, § 29; Code 1933, § 84-1402; Ga. L. 1965, p. 629, § 2; Code 1933, § 84-1401, enacted by Ga. L. 1973, p. 100, § 1; Ga. L. 1974, p. 379, § 1; Ga. L. 1980, p. 1398, § 1; Ga. L. 1985, p. 360, § 1; Ga. L. 1990, p. 650, § 1; Ga. L. 1993, p. 123, § 49; Ga. L. 1995, p. 1216, § 3; Ga. L. 1996, p. 194, § 3; Ga. L. 2000, p. 1527, § 11; Ga. L. 2003, p. 370, § 7.)

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- Some of the following annotations are taken from opinions under former Code 1933, § 84-1402, as it read prior to revision of the chapter by Ga. L. 1973, p. 100, which are included in the annotations for this Code section in light of the similarity of the statutory provisions.

Employees of property management companies who negotiate agreements must be licensed. 1977 Op. Att'y Gen. No. 77-26.

- If broker sells personal real estate through the broker's brokerage company, or otherwise represents to prospective purchasers that the purchasers are dealing with a licensed broker, the broker may employ only licensed salespersons to make such sales on the broker's behalf. 1977 Op. Att'y Gen. No. 77-26.

- Person charging a fee and obtaining a loan on real estate does not fall within the statutory definition of a real estate broker or real estate salesperson; therefore, such person is not required to be licensed. 1950-51 Op. Att'y Gen. p. 149.

Person who procures a purchaser for real estate, but who does not accept any compensation therefor, does not violate law requiring all real estate dealers to first procure a license, notwithstanding fact that such person does charge a fee for services in procuring a loan incident to purchase of such property. 1952-53 Op. Att'y Gen. p. 410.

Mortgage brokerage firm, acting as "finder," and placing and forwarding loans, does not fall under the statute as to such activities, notwithstanding that such firm may be owned by licensed real estate brokers and would be subject to such law with respect to activities governed thereby. 1970 Op. Att'y Gen. No. U70-131.

- Mere running of advertisement offering for sale real estate not owned by advertiser does not violate prohibition against holding oneself out as a dealer without a license. 1948-49 Op. Att'y Gen. p. 636.

- An individual, firm, or corporation may use the name "realty" and may actually deal in real estate without obtaining a license from the Georgia Real Estate Commission; provided, however, such person, firm, or corporation does not for another and for a fee, commission, or other valuable consideration, sell, exchange, buy, rent, or offer or attempt to negotiate a sale, exchange, purchase, or rental of any estate or interest in real estate or collect or offer or attempt to collect rent for use of real estate. 1950-51 Op. Att'y Gen. p. 150.

- Properly construed, persons operating a business for purpose of obtaining rental units for clients are required to register as real estate brokers, notwithstanding fact that such persons do not themselves participate in actual negotiation of lease contract. 1952-53 Op. Att'y Gen. p. 165.

- Corporation which is performing administrative and management services for a cooperative, which include collection of monthly rental payments, and occasional involvement in sale or transfer of membership unit from dwelling member to new member must secure a license as a real estate broker. 1970 Op. Att'y Gen. No. U70-14.

- Person employed by another for purpose of showing property for sale or rent and who receives a fee, commission, or other valuable consideration for services, and who performs such services without first obtaining a license from the Georgia Real Estate Commission acts in violation of this section. 1950-51 Op. Att'y Gen. p. 149.

Cemetery corporation selling rights of interment in cemeteries is required to have a license issued to the corporation by the Georgia Real Estate Commission. 1952-53 Op. Att'y Gen. p. 409.

RESEARCH REFERENCES

Am. Jur. 2d.

- 12 Am. Jur. 2d, Brokers, § 9 et seq.

- 12 C.J.S., Brokers, § 1 et seq.

- Necessity and sufficiency of consideration for modification of real estate broker's contract, 42 A.L.R. 987.

Implied contract of employment of real estate broker to procure customer, 49 A.L.R. 933.

Who is real estate agent, salesman, or broker within meaning of statute, 56 A.L.R. 480; 167 A.L.R. 774.

Validity and construction of license tax or fee, or business privilege, or occupational tax, on persons renting or leasing out real estate, 93 A.L.R.2d 1136.