Montana Attorney General Opinion 15-22

Opinion No. 22 Real 'Estate Bt'o\,et'-Single Transaction -Exemption, HELD: The single transaction ex- emption in the real estate broker law is not necessarily limited to one who makes only one sale. January 13, H)33. Your letter requesting an interpreta- tion of section 4058. R. C. ~I. H)21. has been receb-ed. You ask: "Can more than one sale be made ancl still be classed as a single transactioll. al- though the snles may be made at (lif- ferent times?" That part of the ahm'e section per- taining to single transnctions, reads as follows: "The provisions of this act shall not apply « • * to any person who, not representing himself to be. a nd not following tllP "oca tion of rea I estate broker, as a whole or in part, acts in that eapacit~' for another in connection with a single transaction, $: :0: *" Your question, as we understand it. is whether more than one sale may be made by a person llnd he still be re- garded as coming within the exemption. In order to determine whether the transaction is within the exemption. it is necessary to ascertain several facts: (1st) Whether the person repre- sents himself to be a broker; (2nd) whether he was followillg' the voca tion of real estate hroker, (It) as a whole, (b) or in part; (3rd) whether he acted in that capacit~' for Illlother in counec- tion with a single tra nsaction. It is our opinion that where a man acts in more than one transaction he may still he within the exemption of rhe statute providing he does not repre- sent himself to be a broker or does not follow the vocation of real estate brok- el' in whole or in part. In other words. a person may make an occasional sale of real esta te for another if he does not follow the vocation of a real estate broker, or does not represent himself to be a rcnl estate broker. All the cir- cum!"mnces in connection with the sale must be considered. For example: the frequency of such sales and whether the person who made them had any other 32 OPINIONS OF THE ATTOHNEY GENERAL occupation might haye a bearing upon the question whether such person was following the vocation of a real estate uroker as a whole or in part. In the case of Miller Y. Stevens, 224 :\Iich. 626, a case where one who was in the business of selling coal on a commission, in making a sale of rea I estate was held not a "business chance uroker," ",.jthin the meaning of the stat- ute in that state, the court said: ,·It can be safely said without re"ie"ing the authorities that the courts haye quite generall~' held that a single sale or act of a private citizen in relation to It vocati-on prohibited by statute with- out a license is not, standing alone, clu'l')ing 011 the forbidden business." In that case the court quoted the following defInitions of a ,'ocation and vocation: "'An a vocation is what calls one away from other work; a vocation, or calling, that to which one is called 'by some special fitness or sense of duty.' Fernald's English Synonyms, Anto- nyms and prepositions, " 'Voca tion is li terally a calling. It conveys the idea of systematic employ- ment in an occupation appropriate to the perSOIl employed. It implies spe- ~ific aptitude in the person, the result of training.' Smith's Synonyms Dis- crimina ted." It Ilas been held that the mah;ng of an occasional sale by one engaged in other busilless does not lH-,cessa ril~' make such person a broker. "One who, while engaged in other business, makes a single or occasional sale, or other trans- action for another under a special con- tract, is not a broker and is not re- quired to take out a license as such." V C. J. 513, Section 15. 'Vhile we conclude that one who makes more than one sale may come within the exemption of the statute, you will realize, of course, that it is difficult to lay down a general rule in ad,'ance to fit all cases but that the facts of each case must be considered and the law applied thereto.