May 25, 2019

Division of Real Estate Proposes New Rule About Transferring Conservation Easements to Non-Certified Entities

The DORA Division of Real Estate has proposed a new rule for the conservation easement certification program. The purpose of this rule is to prevent a non-certified organization from holding a transferred conservation easement for which a tax credit is claimed. The rule applies to any nonprofit entity and any government entity that holds a conservation easement for which a tax credit is claimed.

A hearing on the proposed rule will be held on Monday, October 24, 2011 at 1560 Broadway, Suite 1250 C, Denver, Colorado 80202, beginning at 10:00 am.

Full text of the proposed rule can be found here. Further information about the rule and hearing can be found here.

Division of Real Estate Proposes New Rule Regarding Broker Competency

The DORA Division of Real Estate has proposed a new rule to regulate and enforce real estate broker competency. Real estate brokers are required to perform the terms of their real estate transaction agreements with clients, but they also must exercise reasonable skill and care and have a duty to promote the interests of their clients “with the utmost good faith, loyalty, and fidelity.” It is a violation of the real estate license law if a licensee demonstrates unworthiness or incompetency to act as a real estate broker by conducting business in such a manner as to endanger the interest of the public.

The purpose of this rule is to ensure that licensed real estate brokers do not agree to perform brokerage activities in a transaction where they lack the necessary training, experience, or education to fulfill the terms of the brokerage practice agreement, unless the licensed broker is assisted by another licensed real estate broker possessing the necessary competency.

The new rule, E-47 Competency, is also accompanied by an enforcement provision.

A hearing on the new rule will be held on Tuesday, October 4, 2011 at 1560 Broadway, Suite 1250-C, Denver, Colorado 80202, beginning at 9:00 am.

Full text of the proposed rule can be found here. Further information about the rule and hearing can be found here.

Colorado Court of Appeals: CORA Investigatory Files Exemption Does Not Protect Board of Real Estate Appraisers’ Disciplinary and Investigatory Files and Records

The Colorado Court of Appeals issued its opinion in Land Owners United, LLC v. Waters on August 18, 2011.

Colorado Open Records Act—Investigatory Files Exemption—Deliberative Process Privilege—Confidential Information Exemption.

Defendants Marcia Waters, director of the Colorado Division of Real Estate, and the Colorado Board of Real Estate Appraisers (collectively, the Board) appealed from the district court order requiring disclosure of certain records under the Colorado Open Records Act (CORA). The order was affirmed.

Land Owners United, LLC (Land Owners) made a series of CORA requests seeking records pertaining to the proceedings involving two appraisers, Milenksi and Stroh, who were both disciplined by the Board. It also sought information relating to the Board’s investigation into allegations of abuse of Colorado’s conservation easement program.

On appeal, the Board contended that the district court erred by (1) holding that the investigatory files exemption, the deliberative process privilege, and the confidential information exemption did not justify withholding disclosure of the records; (2) ordering redaction of specified information; and (3) awarding attorney fees to Land Owners. CORA allows access to all public records not specifically exempted by law. The CORA exemption for investigatory files applies only to those investigatory files compiled for criminal law enforcement purposes. Accordingly, the investigatory files exemption of CORA does not protect the records sought in this case.

A key question in determining whether the deliberative process privilege applies is whether disclosure of the material would expose an agency’s decision-making process in such a way as to discourage discussion within the agency and thereby undermine its ability to perform its functions. Here, the district court did not abuse its discretion when it rejected the Board’s assertion of the deliberative process privilege in recognizing the potential effect the discipline of appraisers could have on Land Owners and finding that the public interest outweighed the deliberative process of the Board. Finally, the records at issue here do not fall within the definition of confidential records, which includes “trade secrets, privileged information, and confidential commercial, financial, geological, or geophysical data . . . furnished by or obtained from any person.” The court’s order to redact certain confidential information further protected the Board’s interests in this matter.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on August 18, 2011, can be found here.

Colorado Court of Appeals: Colorado Real Estate Commission May Impose Sanction of License Revocation for Attempted Crimes as well as Convictions

The Colorado Court of Appeals issued its opinion in Colorado Real Estate Comm’n v. Bartlett on June 23, 2011.

Revocation of Real Estate License—Jurisdiction.

Respondent Alfred Bartlett appealed the final agency order of the Colorado Real Estate Commission (Commission) revoking his real estate broker’s license, on the grounds that the Commission lacked authority to impose discipline for attempted crimes and failed to properly address evidence of his rehabilitation. The order was affirmed.

An administrative law judge (ALJ) found that Bartlett communicated for several months via the Internet with an undercover detective from the Colorado Springs Police Department who was posing as a 13-year-old girl named Tiffany. After stating his desire to have sexual contact with the girl, Bartlett arranged a meeting, requesting it be kept secret from her mother. Bartlett was arrested at the agreed location, after making contact with a person he believed to be Tiffany. He pleaded guilty to attempted sexual assault on a child, a class 5 felony, and was sentenced to five years of sex offender intensive supervision probation, scheduled for completion in September 2011. Bartlett did not notify the Commission of his conviction until approximately eight months after he entered his guilty plea, despite applying for a renewal of his broker’s license in the interim.

The Commission filed a notice of charges, alleging respondent was subject to discipline based on his conviction and his failure to immediately report it. The ALJ found Bartlett guilty and, after extensive briefing and oral arguments, the Commission accepted the ALJ’s decision and revoked Bartlett’s real estate broker’s license.

On appeal, Bartlett argued that the Commission lacked subject matter jurisdiction to revoke his license, because he was convicted of an attempt and not a completed crime. Specifically, Bartlett argued that CRS §12-61-113(1)(m) empowers the Commission to impose sanctions for convictions only under the enumerated statutes, and that CRS §18-2-101, prohibiting attempts, is not on the list. The Court of Appeals rejected this argument based on the plain language of the statute.

Bartlett also argued that the Commission (1) was required to consider evidence concerning his rehabilitation; and (2) had the burden to prove the absence of rehabilitation and failed to meet that burden. The Commission agreed that it was required to consider rehabilitation evidence but disputed that it bears the burden of proof on that issue. The Court held that the Commission bears the burden of proof, but met that burden in this case.

Finally, Bartlett argued that the Commission’s sanction of revocation was arbitrary and capricious. The Court disagreed, finding clear support in the record for the Commission’s sanction.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on June 23, 2011, can be found here.

Governor Hickenlooper Announces Multiple Board and Commission Appointments

At the end of last week, Governor John Hickenlooper announced his appointments to several boards and commissions: the Colorado Board of Veterans Affairs, the Colorado Coroners Standards and Training Board, the Developmental Disabilities Council, the Hospital Provider Fee Oversight and Advisory Board, the Read-to-Achieve Board, and the Real Estate Commission.

The Colorado Board of Veterans Affairs studies problems facing veterans and makes recommendations to the Department of Military and Veterans Affairs and the Division of Veterans’ Affairs concerning programs needed to assist veterans. These appointments are dependent upon Senate confirmation. The members appointed are:

  • Franklin DB Jackson, of Denver, to serve as a veteran who has been honorably released or separated from the armed forces of the United States; term to expire June 30, 2015.
  • Kathleen N. Dunemn, of Littleton, to serve as a veteran who has been honorably released or separated from the armed forces of the United States; term to expire June 30, 2015.

The Colorado Coroners Standards and Training Board develops a curriculum for a forty-hour training course for new coroners and approving the qualifications of the instructors who teach the course. The Board also approves training providers to certify coroners in basic medical-legal death investigation and approves training providers and programs used to fulfill the annual sixteen-hour in-serve training requirement. The members appointed are:

  • Amy Martin, of Denver, to serve as a coroner of a county with a population of 50,000 or more; term to expire March 1, 2012.
  • The Honorable Rodney J. Bockenfeld, of Centennial, to serve as a county commissioner of a county with a population of 50,000 or more; term to expire March 1, 2014.
  • The Honorable Debra Lynn Zwirn, of Iliff, to serve as a county commissioner of a county with a population of less than 50,000; term to expire March 1, 2014.
  • Mark D. Hurlbert, of Breckenridge, to serve as a district attorney from a judicial district in this state; term to expire March 1, 2014.

The Developmental Disabilities Council is responsible for coordinating services and advocating for persons with developmental disabilities. The members appointed are:

  • Thomas L. Miller Jr., of Highlands Ranch, to serve as a representative of a state agency that administers funds provided under Titles V and XIX; term to expire July 1, 2012.
  • The Honorable Irene Aguilar, of Denver, to serve as a representative of the Colorado State Senate; term to expire July 1, 2014.
  • Lisa M. Kramer, of Littleton, to serve as a parent/guardian of a child with developmental disabilities; term to expire July 1, 2014.
  • Edward George, of Denver, to serve as a person with developmental disabilities; term to expire July 1, 2014.
  • Christine T. Herron, of Centennial, to serve as a parent of a child with a developmental disability; term to expire July 1, 2014.
  • F. Mike Hoover, of Boulder, to serve as a person with a developmental disability; term to expire July 1, 2014.
  • Todd J. Coffee, of Denver, to serve as a representative of the state agency that administers funds provided under the federal “Older Americans Act of 1965″; term to expire July 1, 2014.
  • Scott LeRoy, of Boulder, to serve as a representative of the state agency that administers funds provided under the federal “Rehabilitation act of 1973;” term to expire July 1, 2014.
  • Stephanie Lynch, of Boulder, to serve as a person with a developmental disability; term to expire July 1, 2014.

The Hospital Provider Fee Oversight and Advisory Board is responsible for working with the Department of Healthcare Policy and Financing and the Medical Services Board to develop the hospital provider fee model, monitor implementation of the bill, help with preparation of this program, and ensure that the Medicaid and CHP+ eligibility expansions are implemented as intended. These appointments are dependent upon Senate Confirmation. The members appointed are:

  • Ann M. King, of Denver, to serve as a member of a statewide organization of hospitals; term to expire May 15, 2015.
  • Thomas A. Rennell, of Castle Rock, to serve as a member of a statewide organization of health insurance carriers; term to expire May 15, 2015.
  • William Patrick Heller, of Denver, to serve as an employee of the state department; term to expire May 1, 2015.

The Read-to-Achieve Board reviews applications for grants under the Read-to-Achieve grant program. Under this program, any school may apply for grants to fund intensive reading programs for second- and third-grade students whose literacy and reading comprehension skills are below grade level. These appointments are dependent upon Senate Confirmation. The members appointed are:

  • Joanne E. Scanlan, of Colorado Springs, to serve as a kindergarten, first-, second-, or third-grade elementary school teacher; term to expire April 1, 2014.
  • Teresa L. Williams, of Westminster, to serve as a member with knowledge of and experience in public education in elementary grades; term to expire on April 1, 2014.
  • Charlotte Macaluso, of Pueblo, to serve as a parent of a child who is enrolled in a public school at the time of appointment; term to expire on April 1, 2014.
  • Jamie Lyn Marin, of Strasburg, to serve as a rural kindergarten, first-, second-, or third-grade elementary school teacher representative of non-confinement cattle industry; term to expire April 1, 2014.

The Real Estate Commission regulates the licensing and conduct of real estate brokers and salespeople and pre-owned home warranty service companies. The member appointed is:

  • Christopher S. McElroy, of Fort Collins, to serve as a real estate broker; term to expire on April 12, 2014.

The full press release from the Governor’s office concerning these board and commission appointments can be found here.

DORA Division of Real Estate Amends Rule Regarding Mandatory Use of Forms

The Department of Regulatory Agencies’ Division of Real Estate has amended a rule regarding the mandatory use of standard and approved forms. The revised rule, entitled F-7 Commission Approved Forms, eliminates two approved listed forms, amends one form, and adds four new forms to be used in relevant transactions.

The amended rule will be applicable to all real estate brokers.

  • Eliminated Forms
    • Addenda to Contracts: Short Sale Addendum
    • Optional Forms (Not Mandatory): Estoppel Statement
  • Amended Forms
    • Notice Documents: Inspection Notice (now Inspection Objection)
  • New Forms
    • Addenda to Contracts: Short Sale Addendum to Contract to Buy and Sell Real Estate
    • Addenda to Contracts: Short Sale Addendum to Listing Contract
    • Disclosure Documents: Estoppel Statement
    • Closings: Post Closing Occupancy Agreement

The complete text of the amended rule can be found here.

A hearing on the amended rule will be held on Tuesday, August 2, 2011, at the Colorado Division of Real Estate, 1560 Broadway, Suite 1250-C, Denver, Colorado 80202, beginning at 9:00 am.

Any interested person may participate in the rulemaking process by submitting written data, views, and arguments to the Division of Real Estate. Those interested are asked to submit their materials in writing on or before the close of business on July 5, 2011. However, all materials submitted prior to or at the rulemaking hearing or prior to the closure of the rulemaking record will be considered.

Further information about rule and hearing can be found here.

DORA Division of Real Estate Adopts New Cease and Desist Rule

The Department of Regulatory Agencies’ Division of Real Estate has adopted a new permanent rule regarding conservation easements. The purpose of the rule, entitled D-1 Cease and Desist, is to fulfill the legislative directive to promulgate necessary rules concerning the state income tax credit that may be claimed for the donation of a conservation easement.

Specifically, the Division of Real Estate states that the purpose of this new rule is to define discipline authorized in CRS § 12-61-720(11). The definition will allow the Director of the Division the ability to impose discipline for noncompliance on an organization for negotiating or accepting a conservation easement if they are not in compliance with CRS § 38-30.5-104(2) and 12-61-720.

D-1 Cease and Desist

If the Division of Real Estate has reasonable cause to believe any public or private organization is not in compliance with section 38-30.5-104 (2), C.R.S. and section 12-61-720, C.R.S., the Director of the Division of Real Estate may enter a order requiring such organization to cease and desist from attempting to hold a conservation easement for which a state tax credit may be claimed.

This permanent rule will be effective on September 14, 2011.

A hearing on the new rule will be held on Monday, July 18, 2011 at the Colorado Division of Real Estate, 1560 Broadway, Suite 1250 C, Denver, Colorado 80202, beginning at 10 am.

Any interested person may participate in the rulemaking process by submitting written data, views, and arguments to the Division of Real Estate. Those interested are asked to submit their materials in writing no less than ten days prior to the hearing date. However, all materials submitted prior to or at the rulemaking hearing or prior to the closure of the rulemaking record will be considered.

Full text of the proposed changes and the new rule can be found here. Further information about rule and hearing can be found here.

New Mortgage Loan Originator Rules Effective 4/14/11 and 5/15/11; Rulemaking Hearings Scheduled