Untitled Texas Attorney General Opinion ( 1964 )

December 21, 1964
Honorable Blll.Iofland .Oplnion No. C- 365
,County Attorney
Rockwall County Courthouse Re: Whether the busl-
Rockwall, Texas ness of a broker
of cemetery lots
Is regulated by
Articles 1.01
et seq., Article
6?5p,vA;tp
or A&&ld j:05b,
Dear Mr.'Iafland: V.P.CI
You hiie requested an opinion from this office
on the above captioned question.
Your brief, from which we quote, describes the
questioned enterprise as follows:
'It haa...cometciour'attentlon that there
are large'gumbers of-persons ti .thlsState
who are unable to,dlspose,of cemetery lots~
which they no ,longerneed as a result of
having moved or havlng~been transferred.
The group consists principally of persons
who purchase cemetery lots near their homes
and who, on moving, are prevented from resel-
llng their lots to the cemetery'from which
they were orlglna$ly purchased because of
cemetery regulations prohibiting repurchase
of cemetery lots once.sold, or because the
price:offered for repurchase is nominal.
We are further Informed that many of these
people would exchange their lots with one
another or offer them for sale if there were
some means by which they could so dispose
of'their property. We have received further
Information that a business has been formed
for the purpose of acting as an intermediary
for such persona."
-1729-
Honorable Bill Lofland, page 2 (c-365 )
You have advised that the enterprise in qukstion
Involves Individuals and not a corporation, therefore
the Business Corporation Act, Article 1.01, et seq.,
Vernon's Civil Statutes, Is not applicable.
Any individual wlshlng to transact the business
of operating a cemetery must do so through a corporation
organized under Article 912a, Vernon's Civil Statutes.
Art. 912a, Sec. 5. V.C.S. We have concluded, however,
that a broker of cemetery lots will not be transacting
such business.
A broker Is a special agent engaged by others
to negotiate contracts for the sale or lease of real
estate or other property. n Lumber Co. v. Conn,
20 S.W.2d 388 (TexiClv.App. 29 error dlsm.) An
agent's acts, within the scope'oi hls.authorlty, are
the acts of his principal. 2 Tex.Juti.2d 437, Agency,
Sec. 2.
Under the factsin this situation, the broker
would be a special agent and as such, his acts would be
the acts of the burial lot owners.
'It Is our oplnldn that a broker of cemetery~
lots would not be transac'tlngany of the business of
operating a cemetery and thus would not be regulated
under Article gl2a, Vernon's Civil Statutes.
However, the enterprise In question would fall
under the regulatlons,of the Real Estate GLcense Act,
Art. 6573a, Vernon's Civil Statutes, and under the
penal provlslons of Art. 705b, Sec. 1, Vernon's Penal
Code.
Section 4 of Art. 6573a, Real Estate License Act,
Vernon's Civil Statutes, reads:
"Sec. 4. The following terms shall,
unless the context otherwise indicates, have
the following .meaning:
"(1) The term 'Real Estate B?oker'
shall mean and include any person who, for
another or others and for compensatlo~ or
with the Intention or In the expectation
or upon the promise of receiving or col-
lecting compensation:
-1730-
Honorable Bill Lofland, page 3 (~1365 )
"(a) Sells, exchanges, purchases:,rents
or leases real estate;
"(b) Offers tb sell, exchange, pur-
chase, rent or lease real estate;
"(c) Negotiates, or offers or attempts
or agrees to negotiate the'sale, exchange,
purchase rental or.leaslng..of+re@lestate;
"(d) Lists or offers or attempts or
agrees to list real estate for sale, rental,
lease, exchange or trade;
**+
"(I) Advertises or holds himself out
as being engaged In the business of buying,
selling, exchanging, renting or leasing
real estate;
rocures or assists In the pro-
cur&(3 pEospects calculated to result'
In the sale, exchanie, leasing or rental
of real estate;
"(2) The term 'Real Estate Broker'
shall also include any person employed
by or on behalf of the owner or owners.of
real estate at a stated salary or upon a
commission or upon a salary and commission
basis or other compensation to sell,
exchange or offer for sale such real estate
or any part thereof who shall sell, exchange
or offer or attempt ol:agree,td negotiate
the sale or exchange of any lot or parcel
of real estate; provided, however, If
the owner of lots or~other parcels 1s
engaged .ln the business of buying, selling,
exchanging, leasing, or renting a,property~
and holding himself out as a full or part-
time broker In real estate, then,such per-
son employed bx said owner may be ~llcens&d
as a salesman.
Honorable Bill Lofland, page 4 (c-365 )
It is unlawful for any person to perform any of
the above acts without obtaining a license as provided
for by the Act. Art. 6573a, Sec. 1, V.C.S. (Real Estate
License Act).
While an Interest In a burial lot has been described
as a fee limited in purpose,'an easement, or a license,
It Is, In any event, an Interest In real estate.
vs. Paine, 319 S.W.2d 653 (Mo.Sup., 1959); Oak Parl?FikF
tery vs. Donaldson, 148 S.W.2d 994 (Tex.Clv.App., l'Tsa;-
error dlam., u g. car.).
It Is our opinion that the Interest In a burial
lot la real estate as contemplated by the statute; that
the transactions of ;?broker.of cemetery lots cleakly
fall within the definition of a Real Estate Broker, and
as such the enterprise la subject to the regulations
under the Real Estate License Act.
We further conclude that a broker of cemetery
lots would be subject to Art. 705b-1, Vernon's Penal
Code, which reads:
"It shall be unlawful 'forany person, . . .
agent, or employee thereof, to sell, offer
for sale, or advertise any cemetery plot
or the exclusive right of sepulture there-
in under the representation that such plot
Is -underperpetual care, before a perpetual
care fund as provided for by law has been
established for the c'emeteryIn which such
property so sold, offered for sale, or
advertised Is situated; or to engage In or
transact any of the businesses of a cemetery
within this State other than.by means of a
corporation organized for such purpose,
except as othertilseprovided by law; . . .
or to sell or offer for sale or advertise
for sale cemetery lots or the exclusive
right of sepulture therein for purposes of
speculation or Investment; or to represent
through advertising or printed matter that
a retail department will later be established
for the resale of cemetery lot purchasers
that specific Improvements will be made In
the cemetery or that specific merchandise.
-1732-
Honorable Bill Lofland, page 5 (c-365 1
or service wlll be furnished the lot owner,
unless adequate funds or reserves have been
created by the operator of the,cemetery
for each such purpose; . . . . Any person
. . . violating any of the provisions of
this Section shall be guilty of misdemeanor
and on conviction thereof shall be fined
not more than Five Hundred Dollars ($500)
or, If a person, imprisoned not exceeding
six (6) months In a county Jail, or punished
by both such fine and imprisonment. . . .
'and for such purposes venue Is hereby conferred
upon the.Dlstrlct Courts In this State."
Any violation of this statute would subject such
person to the penalties and punishment prescribed therein.
SUMMARY
-------
1. A broker of cemetery lots Is not
subject to the regulations of Art. 912a,
Vernon's Civil Statutes.
A broker of cemetery lots la
subje% to Art. 6573a the Real Esta,te
License Act, Vernon~s'Clvll Statutes,
and Art. 705b, Sec. 1, Vernon's Penal
Code.
Very truly yours,
WAQQONRR CARR
Attorney'Qeneral of Texas
CFV:ss
:
-1733-
Honorable Bill Lofland, page 6 (c-365 )
APPROVED:
OPINION COMMITTEE
W. V. Qeppert, Chairman
J. Qordon Zuber
V. F. Taylor
Llnward Shivers
Charles Swarmer
APPROVEDFOR !IliE
ATTORNEYQENERAL
By: Stanton Stone
-1734-