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45:15-16. Acceptance of commission, valuable consideration
45:15-16. No real estate salesperson or broker-salesperson shall accept a commission or valuable consideration for the performance of any of the acts herein specified, from any person except his employer, who must be a licensed real estate broker.
Amended 1993,c.51,s.18.
45:15-16.2. Educational and information programs
1. The Division of the New Jersey Real Estate Commission in the State Department of Insurance, within the limits of appropriations available or to be made available to it for the purpose, may conduct educational and information programs relating to the real estate brokerage business and real estate brokers, broker-salespersons and salespersons for the information, education, guidance and protection of the general public, licensees, and applicants for licensure. The educational and information programs may include preparation, printing and distribution of publications and articles and the conduct of conferences, forums, lectures, and a public information service.
L.1955,c.238,s.1; amended 1993,c.51,s.19.
45:15-16.27. Short title
This act shall be known and may be cited as the ~Real Estate Sales Full Disclosure Act.~
L.1989, c.239, s.1.
45:15-16.28. Definitions
As used in this act:
~Advertising~ means the publication, or causing to be published, of any information offering for sale, or for the purpose of causing or inducing any other person to purchase or acquire, an interest in the title to subdivided lands, including the land sales contract to be used and any photographs or drawings or artist@s representation of physical conditions or facilities on the property existing or to exist by means of any:
(1) Newspaper or periodical;
(2) Radio or television broadcast;
(3) Written or printed or photographic matter produced by any duplicating process producing 10 copies or more;
(4) Billboards or signs;
(5) Display of model homes or units;
(6) Material used in connection with the disposition or offer of subdivided lands by radio, television, telephone or any other electronic means; or
(7) Material used by subdividers or their agents to induce prospective purchasers to visit the subdivision; particularly vacation certificates which require the holders of those certificates to attend or submit to a sales presentation by a subdivider or its agents.
~Advertising~ does not mean: stockholder communications such as annual reports and interim financial reports, proxy materials, registration statements, securities prospectuses, applications for listing securities on stock exchanges, or similar documents; prospectuses, property reports, offering statements, or other documents required to be delivered to a prospective purchaser by an agency of any other state or the federal government; all communications addressed to and relating to the account of any person who has previously executed a contract for the purchase of the subdivider@s lands except when directed to the sale of additional lands.
~Blanket encumbrance~ means a trust deed, mortgage, judgment, or any other lien or encumbrance, including an option or contract to sell or a trust agreement, affecting a subdivision or affecting more than one lot offered within a subdivision, except that term shall not include any lien or other encumbrance arising as the result of the imposition of any tax assessment by any public authority.
~Broker~ or ~salesperson~ means any person who performs within this State as an agent or employee of a subdivider any one or more of the services or acts as set forth in this act, and includes any real estate broker or salesperson licensed pursuant to R.S.45:15-1 et seq. or any person who purports to act in any such capacity.
~Commission~ means the New Jersey Real Estate Commission.
~Common promotional plan~ means any offer for the disposition of lots, parcels, units or interests of real property by a single person or group of persons acting in concert, where those lots, parcels, units or interests are contiguous, or are known, designated or advertised as a common entity or by a common name regardless of the number of lots, parcels, units or interests covered by each individual offering.
~Disposition~ means the sale, lease, assignment, award by lottery, or any other transaction concerning a subdivision if undertaken for gain or profit.
~Notice~ means a communication by mail from the commission executed by its secretary or other duly authorized officer. Notice to subdividers shall be deemed complete when mailed to the subdivider@s address currently on file with the commission.
~Offer~ means every inducement, solicitation or attempt to encourage a person to acquire an interest in a subdivision if undertaken for gain or profit.
~Person~ means an individual, corporation, government or governmental subdivision or agency, business trust, estate, trust, partnership, unincorporated association, two or more of any of the foregoing having a joint or common interest, or any other legal or commercial entity.
~Purchaser~ means a person who acquires or attempts to acquire or succeeds to an interest in a subdivision.
~Time-share estates~ includes both ~fee simple~ and ~right to use~ time-share interests and means:
(1) An ~interval estate~ meaning a combination of an estate for years in a lot, parcel or unit, during the term of which title rotates among the time-share owners, coupled with a vested undivided fee simple interest in the remainder in that unit as established by the declaration or deed creating the interval estate; or
(2) A ~time-span estate~ meaning a combination of an undivided interest in a present estate in fee simple in a lot, parcel or unit established by the declaration or deed creating the time-span estate, coupled with the exclusive right to possession and occupancy of the parcel or unit during a regularly recurring period; or
(3) A ~vacation license~ meaning the exclusive right to possession and occupancy of a lot, unit or parcel during a regularly recurring period established by club membership, lease or license.
~Subdivider~ or ~developer~ means any owner of subdivided lands or the agent of that owner who offers the subdivided lands for disposition.
~Subdivision~ and ~subdivided lands~ mean any land situated outside the State of New Jersey whether contiguous or not, if one or more lots, parcels, units or interests are offered as a part of a common promotional plan of advertising and sale and expressly means and includes such units or interests commonly referred to as a ~condominium,~ defined in the ~Condominium Act,~ P.L.1969, c.257 (C.46:8B-1 et seq.). In addition to condominiums, this definition shall also specifically include, but shall not be limited to, any form of homeowners association, any housing cooperative, any community trust, or other trust device and any form of time-sharing.
L.1989, c.239, s.2.
45:15-16.29. Bureau of Subdivided Land Sales Control continued
The Bureau of Subdivided Land Sales Control within the Division of the New Jersey Real Estate Commission in the Department of Insurance, established pursuant to section 3 of P.L.1975, c.235 (C.45:15-16.5), shall continue.
L.1989, c.239, s.3.
45:15-16.30. Conditions for disposition of subdivided lands
Unless the subdivided lands or the transaction is exempt pursuant to section 6 of this act:
a. No person may offer, dispose or participate in this State in the disposition of subdivided lands or of any interest in subdivided lands unless in accordance with the provisions of this act.
b. No person may dispose or participate in the disposition of any interest in subdivided lands unless a current public offering statement, disclosing fully all information required in section 12 of this act, is delivered to the purchaser and the purchaser is afforded a reasonable opportunity to examine the public offering statement prior to the disposition.
L.1989, c.239, s.4.
45:15-16.31. Subdivisions, subdivided lands subject to this act
Disposition of subdivision or subdivided lands are subject to this act if:
a. Any offer or disposition of subdivided lands is made in this State; or
b. Any offer of subdivided land originating outside this State is directed by the subdivider or his agent to a person or resident within this State.
L.1989, c.239, s.5.
45:15-16.32. Methods of disposition not applicable to this act
a. Unless the method of disposition is adopted for the purpose of evasion of this act, the provisions of this act are not applicable to offers or dispositions of an interest in a subdivision:
(1) By an owner for his own account in a single or isolated transaction;
(2) Wholly for industrial or commercial purposes;
(3) Pursuant to court order;
(4) By any governmental agency;
(5) As cemetery lots or interests;
(6) Of less than 100 lots, parcels, units or interests; but, this exemption shall not apply to condominiums, cooperatives, time-shares, retirement communities and offers or dispositions by entities comprised of or acting on behalf of the owners of other units in the subdivision, including, but not limited to entities designated as homeowners associations, regardless of the number of lots, parcels, units or interests offered or disposed of;
(7) Where the common elements or interests, which would otherwise subject the offering to this act, are limited to the provision of unimproved, unencumbered open space, except where registration is required by the ~Interstate Land Sales Full Disclosure Act,~ Pub. L. 90-448 (15 U.S.C. s.1701 et seq.) with the Office of Interstate Land Sales Registration, in the Department of Housing and Urban Development; or
(8) In a development comprised wholly of rental units, where the relationship created is one of landlord and tenant; but this exemption shall not apply to time-shares, regardless of the manner in which an interest in such a time-share subdivision is evidenced.
b. Unless the method of disposition is adopted for the purpose of evasion of this act, the provisions of this act are not applicable to:
(1) Offers or dispositions of evidences of indebtedness secured by a mortgage or deed of trust of real estate;
(2) Offers or dispositions of securities or units of interest issued by a real estate investment trust regulated under any State or federal statute;
(3) Offers or dispositions of securities currently registered with the Bureau of Securities in the Department of Law and Public Safety; or
(4) Offers or dispositions of any interest in oil, gas or other minerals or any royalty interest therein if the offers or dispositions of such interests are regulated as securities by federal law or by the State Bureau of Securities.
c. The commission may, from time to time, pursuant to any rules and regulations promulgated pursuant to this act, exempt from any of the provisions of this act any subdivision or any lots in a subdivision, if it finds that the enforcement of this act with respect to that subdivision or the lots therein, is not necessary in the public interest, or required for the protection of purchasers, by reason of the small amount involved or the limited character of the offering.
L.1989, c.239, s.6.
45:15-16.33. Notice of filing; registration; rejection
a. Upon the filing of an application for registration at the offices of the commission, naming the brokers licensed as real estate brokers pursuant to R.S.45:15-1 et seq. who are the authorized representatives of the subdivider, and accompanied by the proper registration fee in the proper form, and a statement of record as provided for in section 10 of this act, and the proposed public offering statement, the commission shall issue a notice of filing to the applicant. Within 90 days from the date of the notice of filing, the commission shall enter an order registering the subdivision or subdivided lands or rejecting the registration. If no order of rejection is entered within 90 days from the date of notice of filing, the subdivisions or subdivided lands shall be deemed registered unless the applicant has consented in writing to a delay.
b. If the commission affirmatively determines upon inquiry and examination that the requirements of section 9 of this act have been met, it shall enter an order registering the subdivision or subdivided lands and shall designate the form of the public offering statement.
c. If the commission determines upon inquiry and examination that any of the requirements of section 9 of this act have not been met, the commission shall notify the applicant that the application for registration must be corrected in the particulars specified within 30 days from the date the notice is received by the applicant. These findings shall be the result of the commission@s preliminary inquiry and examination and no hearing shall be required as the basis for those findings. The receipt of a written request for a hearing shall stay the order of rejection until a hearing has been held and a determination has been made.
L.1989, c.239, s.7.
45:15-16.34. Initial registration fee; inspection fee; consolidated filing fee
a. (1) The fee for an initial registration shall be $500.00 plus $35.00 for each lot, parcel, unit or interest which fee shall not exceed $3,000.00. The initial registration shall be valid for a period of one year from the date of approval of the registration. If the fees are insufficient to defray the cost of rendering services required by the provisions of this act, the commission may, by regulation, establish a revised fee schedule. Any revised fee schedule shall assure that the fees collected reasonably cover, but do not exceed, the expenses of administering the provisions of this act.
(2) Annual renewal of registration shall be made in accordance with the provisions of section 14 of this act.
(3) Any current registration filed with and approved by the commission pursuant to the provisions of P.L.1975, c.235 (C.45:15-16.3 et seq.) prior to the date of enactment of this act shall be exempt from initial registration under this act.
b. The application for registration shall be made on forms prescribed by the commission and shall be accompanied by the appropriate filing fee. As provided in subsection f. of section 15 of this act, the commission may determine, at its discretion, that an onsite investigation or inspection is required. The commission shall advise the registrant of the amount of the cost of travel from New Jersey to the location of the subdivided lands and return and any additional expenses of an inspection, which shall be the amount of the inspection fee. All inspection fees shall be accounted for to the applicant.
c. The fee for a consolidated filing, filed pursuant to section 13 of this act, shall be the same as set forth in subsection a. of this section.
L.1989, c.239, s.8.
45:15-16.35. Examination by commission
Upon receipt of an application for registration in proper form, accompanied by a statement of record, the commission shall initiate an examination to determine that:
a. The subdivider can convey or cause to be conveyed the interest in subdivided lands offered for disposition if the purchaser complies with the terms of the offer, and when appropriate, that release clauses, conveyances in trust or other safeguards have been provided;
b. There is reasonable assurance that all proposed improvements will be completed as represented;
c. The advertising material and the general promotional plan are not false, misleading, or discriminatory and comply with the standards prescribed by the commission in its rules and regulations and afford full and fair disclosure;
d. The subdivider has not, or if a corporation, its officers, directors, and principals have not, been convicted of a crime or civil offense involving land dispositions or any aspect of the land sales business in this State, the United States, or any other state or foreign country; and that the developer has not been subject to any permanent injunction or final administrative order restraining a false or misleading promotional plan involving real property dispositions, the seriousness of which in the opinion of the commission warrants the denial of registration; and
e. The public offering statement requirements of section 12 of this act have been satisfied.
L.1989, c.239, s.9.
45:15-16.36. Contents of statement of record
The statement of record shall contain the information and be accompanied by the documents specified as follows:
a. The name and address of each person having an interest in the lots in the subdivision to be covered by the statement of record and the extent of that interest;
b. A legal description of, and a statement of the total area included in, the subdivision and a statement of the topography, together with a map showing the subdivision proposed and the dimensions of the lots, parcels, units, or interests to be covered by the statement of record and their relation to existing streets, roads and other improvements. The map shall be drawn to scale, signed and sealed, by a licensed professional engineer or land surveyor;
c. A statement of the condition of the title to the land comprising the subdivision, including all encumbrances and deed restrictions and covenants applicable thereto;
d. A statement of the general terms and conditions proposed to dispose of the lots in the subdivision;
e. A statement of the present condition of access to the subdivision, the existence of any unusual conditions relating to noise or safety, which affect the subdivision and are known or should reasonably be known to the developer, the availability of sewage disposal facilities and other public utilities, including water, electricity, gas, and telephone facilities, in the subdivision to nearby municipalities, and the nature of any improvements to be installed by the developer and his estimated schedule for completion;
f. A statement as to whether the property or any portion thereof is regularly or periodically subject to natural forces that would tend to adversely affect the use or enjoyment of the property and whether the property or any portion thereof is located in a federally designated flood hazard area;
g. In the case of any subdivision or portion thereof against which there exists a blanket encumbrance, a statement of the consequences for an individual purchaser of a failure, by the persons bound, to fulfill obligations under the instruments creating such encumbrances and the steps, if any, taken to protect the purchaser in such eventuality;
h. (1) Copy of its articles of incorporation, with all amendments thereto, if the developer is a corporation; (2) copies of all instruments by which the trust is created or declared, if the developer is a trust; (3) copies of its articles of partnership or association and all other papers pertaining to its organization, if the developer is a partnership, unincorporated association, joint stock company, or any other form of organization; and (4) if the purported holder of legal title is a person other than the developer, copies of the appropriate documents required pursuant to this subsection for that person;
i. Copies of the deed or other instrument establishing title to the subdivision in the developer or other person and copies of any instrument creating a lien or encumbrance upon the title of developer or other person or copies of the opinion of counsel in respect to the title to the subdivision in the developer or other person or companies of the title insurance policy guaranteeing that title;
j. Copies of all forms of conveyance to be used in selling or leasing lots to purchasers;
k. Copies of instruments creating easements or other restrictions;
l. Certified and uncertified financial statements of the developer as required by the commission;
m. Copies of any management contract, lease of recreational areas, or similar contract or agreement affecting the use, maintenance, or access of all or any part of the subdivision;
n. A statement of the status of compliance with the requirements of all laws, ordinances, regulations, and other requirements of governmental agencies, including the federal government, having jurisdiction over the premises;
o. The developer shall immediately report any material changes in the information contained in an application for registration. The term ~material changes~ shall be further defined by the commission in its regulations; and
p. Any other information and any other documents and certification as the commission may require as being reasonably necessary for the protection of purchasers.
L.1989, c.239, s.10.
45:15-16.37. Information available to public
The information contained in any statement of record and any additions or corrections required by section 10 of this act shall be made available to the public under regulations promulgated by the commission pursuant to this act and copies shall be furnished to every applicant at a reasonable charge prescribed by the commission.
L.1989, c.239, s.11.
45:15-16.38. Public offering statement; not to be used for promotional purposes; amendments to; right to cancel
a. A public offering statement shall disclose fully and accurately the physical characteristics of the subdivided lands offered and shall make known to prospective purchasers all unusual and material circumstances or features affecting those lands. The proposed public offering statement submitted to the commission shall be in a form prescribed by the rules and regulations promulgated pursuant to this act and shall include the following:
(1) The name and principal address of the developer and his authorized New Jersey representative who shall be a licensed real estate broker licensed to maintain offices within this State;
(2) A general description of the subdivision or subdivided lands stating the total number of lots, parcels, units or interests in the offering;
(3) A summary of the terms and conditions of any management contract, lease of recreational areas, or similar contract or agreement affecting the use, maintenance, or access of all or any part of the subdivision or subdivided lands, the effect of each agreement upon a purchaser, and a statement of the relationship, if any, between the developer or subdivider and the managing agent or firm;
(4) The significant terms of any encumbrances, easements, liens and restrictions, including zoning and other regulations affecting the lands and each unit or lot, and a statement of all existing taxes and existing or proposed special taxes or assessments which affect the lands;
(5) A statement of the use for which the property is offered, including, but not limited to:
(a) Information concerning improvements, including hospitals, health and recreational facilities of any kind, streets, water supply, levees, drainage control systems, irrigation systems, sewage disposal facilities and customary utilities; and
(b) The estimated cost, date of completion and responsibility for construction and maintenance of existing and proposed improvements which are referred to in connection with the offering or disposition of any interest in the subdivision or subdivided lands;
(6) The notice, as required in subsection d. of this section, shall, in addition to being contained in all contracts or agreements, be conspicuously located and simply stated in the public offering statement; and
(7) Additional information required by the commission to assure full and fair disclosure to prospective purchasers.
b. The public offering statement shall not be used for any promotional purposes before registration of the subdivided lands and afterwards only if it is used in its entirety. No person may advertise or represent that the commission approves or recommends the subdivided lands or the disposition thereof. No portion of the public offering statement may be underscored, italicized, or printed in larger or heavier or different color type than the remainder of the statement unless the commission requires or permits it.
c. The commission may require the subdivider to alter or amend the proposed public offering statement in order to assure full and fair disclosure to prospective purchasers, and no change in the substance of the promotional plan or plan of disposition or development of the subdivision may be made after registration without notifying the commission and without making an appropriate amendment to the public offering statement. A public offering statement is not current unless all amendments or consolidations are incorporated.
d. Any contract or agreement for the purchase or the leasing of a lot may be rescinded by the purchaser or lessee without cause of any kind by sending or delivering written notice of cancellation by midnight of the seventh calendar day following the day on which the purchaser has executed the contract or agreement. Every contract or agreement shall be in writing and shall contain the following notice in 10-point bold type or larger, directly above the space provided for the signature of the purchaser or lessee:
NOTICE to PURCHASER or LESSEE: You are entitled to the right to cancel this contract by midnight of the seventh calendar day following the day on which you have executed this contract or agreement.
e. The subdivider shall make copies of the public offering statement available to prospective purchasers prior to their signing any contract or agreement.
L.1989, c.239, s.12.
45:15-16.39. Consolidated filing
A subdivider may register additional subdivided lands pursuant to the same common promotional plan as those previously registered by submitting an additional filing providing the additional information necessary to register the additional lots, parcels, units or interests which shall be designated as ~a consolidated filing.~
L.1989, c.239, s.13.
45:15-16.40. Report by subdivider
a. Within 30 days after each annual anniversary date of an order registering the subdivided lands, or on or before a date set by the commission, and while the subdivider retains any interest therein, the subdivider of these lands shall file a report in the form prescribed by the rules and regulations promulgated by the commission. The report shall reflect any material changes in the information contained in the original application for registration; except that, with respect to any registration filed with and approved by the commission prior to the date of enactment of this act, no additional information shall be required on the subdivided land covered by such registration other than that necessary to indicate any material changes in information contained in the original application for registration.
b. The commission shall process and review requests for amendments to a registration in accordance with the standards and procedures established in this act for review of applications for registration. Requests for amendment, other than price changes and advertising, shall be accompanied by a fee as the commission may prescribe by rule.
c. Upon a determination by the commission that an annual report is no longer necessary for the protection of the public interest or that the developer no longer retains any interest and no longer has any contractual, bond or other obligations in the subdivision, the commission shall issue an order terminating the responsibilities of the developer under this act.
L.1989, c.239, s.14.
45:15-16.41. Powers of commission
The commission may:
a. Accept registrations filed in this State, in other states or with the federal government;
b. Contract with similar agencies in this State or other jurisdictions to perform investigative functions;
c. Accept grants in aid from any governmental or other source;
d. Cooperate with similar agencies or commissions in this State or other jurisdictions to establish uniform filing procedures and forms, uniform public offering statements, advertising standards, rules and common administrative practices;
e. Grant exemptions pursuant to the rules and regulations adopted pursuant to section 23 of this act;
f. Make any necessary public or private investigations within or outside of this State to determine whether any person has violated or is about to violate any provision of this act, or to aid in the enforcement of this act or in the prescribing of rules and regulations and forms hereunder;
g. Require or permit any person to file a statement in writing, under oath or otherwise, as the commission determines, as to all the facts and circumstances concerning the matter to be investigated;
h. For the purpose of any investigation or proceeding under this act, the commission or any officer designated by rule, may administer oaths, or affirmations, and upon its own motion or upon request of any party may subpoena witnesses and compel their attendance, take evidence, and require the production of any matter which is relevant to the investigation, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts or any other matter reasonably calculated to lead to the discovery of material evidence; and
i. Upon failure to obey a subpoena or to answer questions propounded by the investigating officer and upon reasonable notice to all persons affected thereby, the commission may apply to the Superior Court for an order compelling compliance.
L.1989, c.239, s.15.
45:15-16.42. Commission empowered to issue cease and desist orders
a. If the commission determines after notice and hearing that a person has:
(1) Violated any provision of this act;
(2) Directly or through an agent or employee engaged in any false, deceptive, or misleading advertising, promotional or sales methods in the State of New Jersey to offer or dispose of an interest in the subdivision or subdivided lands;
(3) Made any material change in the plan of disposition and development of the subdivision or subdivided lands subsequent to the order of registration without first complying with the provisions of subsection o. of section 10 of this act;
(4) Disposed of any subdivision or subdivided lands which have not been registered with the commission; or
(5) Violated any lawful order or rule or regulation of the commission;
the commission may issue an order requiring the person to cease and desist from the unlawful practice and to take such affirmative action as in the judgment of the commission will carry out the purposes of this act.
b. If the commission makes a finding of fact in writing that the public interest will be irreparably harmed by delay in issuing an order, it may issue a temporary cease and desist order. Every temporary cease and desist order shall include in its terms a provision that upon request a hearing will be held within 15 days of the receipt of the request.
L.1989, c.239, s.16.
45:15-16.43. Conditions for revocation of registration
a. A registration may be revoked after notice and hearing upon a written finding of fact that the subdivider has:
(1) Failed to comply with the terms of a cease and desist order issued pursuant to subsection a. of section 16 of this act;
(2) Been convicted in any court for a crime or civil offense involving fraud, deception, false pretenses, misrepresentation, false advertising, dishonest dealing, or other like offense subsequent to the filing of the application for registration;
(3) Disposed of, concealed, or diverted any funds or assets of any person so as to defeat the rights of subdivision purchasers;
(4) Failed faithfully to perform any stipulation or agreement made with the commission as an inducement to grant any registration, to reinstate any registration, or to approve any promotional plan or public offering statement;
(5) Advertised his subdivision or responded to applications for his subdivision in a manner which was discriminatory on the basis of marital status, sex, race, creed, color, religion or national origin;
(6) Willfully violated any provision of this act or of a rule or regulation promulgated pursuant to section 23 of this act; or
(7) Made intentional misrepresentation or concealed material facts in the documents and information submitted in the application filed for registration. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings.
b. If the commission finds, after notice and hearing, that the subdivider has been guilty of a violation for which revocation could be ordered, it may, in lieu thereof, issue a cease and desist order pursuant to subsection a. of section 16 of this act.
L.1989, c.239, s.17.
45:15-16.44. Commission empowered to bring action in Superior Court; intervene in suits
a. If it appears that a person has engaged, or is about to engage, in an act or practice constituting a violation of a provision of this act, the commission, with or without prior administrative proceedings, may bring an action in the Superior Court to enjoin the acts or practices and to enforce compliance with this act or any rule, regulation or order hereunder. Upon proper showing, injunctive relief or temporary restraining orders shall be granted, and a receiver may be appointed. The commission shall not be required to post a bond in any court proceeding.
b. The commission may intervene in a suit involving any subdivision. In any such suit, by or against the developer or subdivider, the developer or subdivider shall promptly furnish the commission with notice of the suit and copies of all pleadings.
L.1989, c.239, s.18.
45:15-16.45. Submission of applicant to the courts; methods of service
a. For purposes of this act, an applicant for registration submitted to the commission shall be deemed as submission, by the applicant, to the jurisdiction of the Courts of the State of New Jersey.
b. In addition to the methods of service provided for in the Rules Governing the Courts of the State of New Jersey, service may be made by delivering a copy of the process to the person in charge of the office of the commission at its office, but that service shall not be effective unless the plaintiff, which may be the commission in a proceeding instituted by it:
(1) Sends a copy of the process and the pleading by certified mail to the defendant or respondent at his last known address; and
(2) The plaintiff@s affidavit of compliance with this section is filed in the case on or before the return day of the process, if any, or within the time as the court allows.
c. If any person, including any nonresident of this State, engaged in conduct prohibited by this act and has not filed a consent of service of process and personal jurisdiction over him cannot otherwise be obtained in this State, that conduct authorizes the commission to receive service of process in any noncriminal proceedings against him or his successor which grows out of that conduct and which is brought under this act with the same force and validity as if served on him personally. Notice shall be given as provided in subsection a. of this section.
L.1989, c.239, s.19.
45:15-16.46. Violations by brokers, salespeople; fines, penalties
a. Any broker or salesperson who violates any of the provisions of this act shall, in addition to the penalties set forth herein, be subject to the penalties as set forth in R.S.45:15-17.
b. Any person who violates any provision of this act or any person who, in an application for registration filed with the commission, makes any untrue statement of a material fact or omits to state a material fact shall be fined not less than $250, nor more than $50,000, per violation.
c. The commission may levy and collect the penalties set forth in subsection b. of this section after affording the person alleged to be in violation of this act an opportunity to appear before the commission and to be heard personally or through counsel on the alleged violations and a finding by the commission that said person is guilty of the violation. When a penalty levied by the commission has not been satisfied within 30 days of the levy, the penalty may be sued for and recovered by, and in the name of, the commission in a summary proceeding pursuant to ~the penalty enforcement law~ (N.J.S.2A:58-1 et seq.).
d. The commission may, in the interest of justice, compromise any civil penalty, if in its determination the gravity of the offense or offenses does not warrant the assessment of the full fine.
L.1989, c.239, s.20.
45:15-16.47. Actions, counterclaims permitted against non-compliers
a. Any person who suffers any ascertainable loss of moneys as a result of the failure of another to comply fully with the provisions of this act may bring an action or assert a counterclaim in any court of competent jurisdiction. In any action filed under this section in which a defendant is found to have knowingly engaged in any false, deceptive, misleading promotional or sales methods or discriminatory advertising on the basis of race, sex, creed, color, marital status, national origin or religion, concealed or fraudulently diverted any funds or assets so as to defeat the rights of subdivision purchasers, made an intentional misrepresentation or concealed a material fact in an application for registration, or disposed of any subdivision or subdivided lands required to be registered under section 7 of this act which are not so registered, the court shall, in addition to any other appropriate legal or equitable remedy, award double the damages suffered, and court costs expended, including reasonable attorney@s fees. In the case of an untruth, omission, or misleading statement the developer sustains the burden of proving that the purchaser knew of the untruth, omission or misleading statement, or that he did not rely on such information, or that the developer did not know, and in the exercise of reasonable care could not have known, of the untruth, omission, or misleading statement.
b. The court may, in addition to the remedies provided in this act, frame any other relief that may be appropriate under the circumstances including, in the court@s discretion, restitution of all monies paid and, where a subdivider has failed to provide to a purchaser a copy of the current public offering statement approved by the commission prior to execution of the contract or agreement, rescission of the contract. If the purchaser fails to establish a cause of action, and the court further determines that the action was wholly without merit, the court may award attorney@s fees to the developer or subdivider.
c. Every person who directly or indirectly controls a subdivision or developer and violates the provisions of subsection a. of this section, every general partner, officer, or director of a developer, and every person occupying a similar status or performing a similar function, shall be jointly and severally liable with and to the same extent as the developer. The person otherwise liable pursuant to this subsection sustains the burden of proof that he did not know, and in the exercise of reasonable care could not have known, of the existence of the facts by reason of which the liability is alleged to exist. There is a right to contribution among persons found liable.
d. Any stipulation or provision purporting to bind any purchaser acquiring a parcel, lot, unit, or interest in any development subject to the provisions of this act to a waiver of compliance with the provisions of this act, shall be void.
e. Any party to an action asserting a claim, counterclaim or defense based upon any violation of this act shall mail a copy of the initial or responsive pleading containing the claim, counterclaim or defense to the commission within 10 days of the filing of the pleading with court. Upon application to the court where the matter is pending, the commission shall be permitted to intervene or to appear in any status appropriate to the matter.
L.1989, c.239, s.21.
45:15-16.48. Existing registrations deemed in force and effect
Any registration of a subdivision or amendment thereto, or consolidation, or renewal thereof approved by the commission prior to August 2, 1989, under the ~Land Sales Full Disclosure Act,~ P.L.1975, c.235 (C.45:15-16.3 et seq.) shall, upon the enactment of this act, be deemed in force and effect for the remainder of the 12-month period for which it was issued.
L.1989, c.239, s.22.
45:15-16.49. Rules and regulations
The commission shall, pursuant to the provisions of the ~Administrative Procedure Act,~ P.L.1968, c.410 (C.52:14B-1 et seq.), promulgate rules and regulations necessary to effectuate the provisions of this act. The rules may include, but shall not be limited to: a. provisions for advertising standards to insure full and fair disclosure; b. provisions for adequate bondings or access to some escrow or trust fund not otherwise required by the municipal governing body to be located within this State, or the state or country where the property is located, so as to insure compliance with the provisions of this act, and to compensate purchasers for failure of the registrant to perform in accordance with the terms of any contract or public statement; c. provisions that require a registrant to deposit purchaser down payments, security deposits or other funds in an escrow account, or with an attorney licensed to practice law in this State, or the state or country where the property is located, until such time as the commission by its rules and regulations deems it appropriate to permit such funds to be released; d. provisions to insure that all contracts between developer and purchaser are fair and reasonable; e. provisions that the developer must give a fair and reasonable warranty on construction of any improvements; f. provisions that the budget for the operation and maintenance of the common or shared elements or interest shall provide for adequate reserves for depreciation and replacement of the improvements; g. provisions for operating procedures; and h. other rules and regulations necessary to effectuate the purposes of this act, and taking into account and providing for, the broad range of development plans and devises, management mechanisms, and methods of ownership, permitted under the provisions of this act.
L.1989, c.239, s.23.
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