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Spirito v. State

Decided: July 31, 1981.

ANTHONY SPIRITO, PLAINTIFF-APPELLANT,
v.
STATE OF NEW JERSEY, NEW JERSEY REAL ESTATE COMMISSION, IN THE DEPARTMENT OF INSURANCE, DEFENDANT-RESPONDENT



On appeal from the New Jersey Real Estate Commission.

Botter, King and McElroy. The opinion of the court was delivered by Botter, P.J.A.D.

Botter

[180 NJSuper Page 181] Appellant is an attorney who was admitted to practice in New Jersey in 1970. By letter written to the New Jersey Real Estate Commission he applied for the issuance of a real estate broker's license to The Spirito Agency, Inc., his wholly-owned corporation. He claimed a right to the license by virtue of his status as a New Jersey attorney exempted by N.J.S.A. 45:15-4 from the provisions of the Real Estate Brokers and Salespersons Licensing Law, N.J.S.A. 45:15-1 et seq. The license was needed, he said, to permit him to advertise as a licensed New Jersey real estate broker, and because other brokers and salespersons were unwilling to work or associate with "a broker" who does not have a license. Relying on an Attorney General's opinion which it sought after receiving appellant's request, the Real Estate Commission ruled that appellant was not entitled to a license without complying with the apprenticeship and testing requirements of N.J.S.A. 45:15-9 and 10. The Commission ruled that his status as an attorney did not give appellant an automatic right to be licensed as a real estate broker. This appeal is taken from that decision.

N.J.S.A. 45:15-1 et seq. is a comprehensive statutory scheme governing the licensing of real estate brokers and real estate salespersons. N.J.S.A. 45:15-1 states in the broadest of terms: "No person shall engage either directly or indirectly in the business of a real estate broker or salesman," nor shall anyone be permitted "to advertise or represent himself" as such or engage in any activities of a real estate broker or salesperson described in N.J.S.A. 45:15-3, "without being licensed so to do as hereinafter provided." The regulated activities are described in N.J.S.A. 45:15-3 by defining a real estate broker to include one who, for compensation, buys, sells, rents or collects rent, or who offers or attempts to negotiate the sale or rental of real estate on behalf of others, or who negotiates for others a loan secured by a mortgage on real estate. A "real estate salesman" is defined by N.J.S.A. 45:15-3 as a person who, for compensation, "is employed by and operates under the supervision of a licensed real estate broker" to engage in the same activity. Corporations or firms may engage in the activities of a real estate broker or salesperson so long as their directors or officers are appropriately licensed. N.J.S.A. 45:15-9 and 10. No person, firm, association or corporation may maintain an action in the courts of this State to collect compensation for services as a broker unless he was licensed at the time the claim arose. N.J.S.A. 45:15-3; see Tanenbaum v. Sylvan Builders, Inc. , 29 N.J. 63, 71 (1959).

N.J.S.A. 45:15-4 provides an exemption from the act for certain persons and entities as follows:

The provisions of this article shall not apply to any person, firm, partnership, association or corporation who, as a bona fide owner or lessor, shall perform any of the aforesaid acts with reference to property owned by him, nor shall they apply to or be construed to include attorneys at law, receivers, trustees in bankruptcy, executors, administrators or persons selling real estate under the order of any court or the terms of a deed of trust, state banks, federal banks, savings banks and trust companies located within the state, or to insurance companies incorporated under the insurance laws of this state.

Appellant contends that the exemption for attorneys is unqualified and means that licensed New Jersey attorneys can perform the same services as a real estate broker without the need to

comply with the provisions of N.J.S.A. 45:15-1 et seq. Addressing this contention the Attorney General issued Formal Opinion 13-1979. Since it cogently supports the Commission's position we set it out in full (incorporating the two footnotes into the text by the use of brackets):

Joan Haberle, Secretary Director, Real Estate Commission, 201 East State Street, Trenton, New Jersey

FORMAL OPINION NO. 13-1979

Dear Ms. Haberle:

You have asked for our opinion as to whether attorneys authorized to practice law in New Jersey are totally exempt from the licensure requirements and regulatory provisions of the Real Estate License Act. You are advised that with the exception of activities pertinent to and within the scope of their responsibilities in the practice of law, attorneys are subject to its provisions.

Your inquiry turns on an interpretation of the exemption provision of the Real Estate License Act, which states as follows:

"The provisions of this article shall not apply to any person, firm, partnership, association or corporation who, as a bona fide owner or lessor, shall perform any of the aforesaid acts with reference to property owned by him nor shall they apply to or be construed to include attorneys at law, receivers, trustees in bankruptcy, executors, administrators, or persons selling real estate under the order of any court or the terms of a deed of trust, state banks, federal banks, savings banks and trust ...


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