Cox v. North Carolina Real Estate Licensing Board

266 S.E.2d 851 (1980)

Shirley T. COX, Petitioner,
v.
NORTH CAROLINA REAL ESTATE LICENSING BOARD, Respondent.

No. 7910SC1165.

Court of Appeals of North Carolina.

June 3, 1980.

Love & Wicker, P. A., by Jimmy L. Love, Sanford, for petitioner-appellant.

Atty. Gen. Rufus L. Edmisten, by Associate Atty. Gen. Harry H. Harkins, Jr., Raleigh, for North Carolina Real Estate Licensing Board, appellee.

PARKER, Judge.

On this appeal appellant does not challenge any of the Board's findings of fact, nor does she contend that her conduct as disclosed by those findings of fact would not furnish adequate grounds under G.S. Ch. 93A for revoking her real estate broker's license had such conduct been engaged in by her while negotiating the sale of real property belonging to another. Her sole contention is that the Board lacked jurisdiction to revoke her real estate broker's license in this case because it arose as the result of a sale of property in which she had an ownership interest. We do not agree.

In support of her contention, appellant points to the language in G.S. 93A-2(a) which defines a real estate broker as "any person . . . who for a compensation or valuable consideration . . . sells or offers to sell, . . . or negotiates the purchase or sale or exchange of real estate. . . for others." She emphasizes the words "for others" and contends that her activities which led her to the Board's action against her in the present case were not "for others" but for herself and the corporation in which she is a stockholder. She further points to the language in G.S. 93A-2(c) which states that the provisions of G.S. Ch. 93A "shall not apply to and shall not include any person, partnership, association or corporation, who, as owner or lessor, shall perform any of the acts aforesaid with reference to property owned or leased by them, where such acts are performed in the regular course of or as an incident to the management of such property and the investment therein . . .," and she contends that this language directly applies to exclude her activities in the present case from coverage by G.S. Ch. 93A.

We find these "owner exemption" clauses in the statute upon which appellant relies inapplicable in the present case. Appellant acted as a real estate broker, not as an owner, in negotiating the sale of the house and lot to Mr. and Mrs. Arnette. She was not the owner of the house and lot in question. It was owned by a corporation in which she owned less than 8% of the stock. It is elementary that "[a] corporation is an entity distinct from the shareholders which own it." Board of Transportation v. Martin, 296 N.C. 20, 28, 249 S.E.2d 390, 396 (1978). Although the Board found that appellant is vice-president and secretary of the corporation, it did not find that she acted on behalf of the corporation in her capacity as one of its officers in showing the house and lot to Mr. and Mrs. Arnette. On the contrary, it found that she acted as "sales agent," that Mr. and Mrs. Arnette submitted an offer "through" her to purchase the property, and that the offer was accepted by the president of the selling corporation. As already noted, appellant has not challenged any of the Board's findings of fact on this appeal. Such findings of fact are presently conclusive.

Our holding that a shareholder is not an owner of land of the corporation in which the shares are held so as to bring the shareholder within the "owner" exemption provisions of our real estate brokers and salesmen licensing statutes is supported by the decision of the Supreme Court of Virginia in Grenco Real Estate Inv. v. Nathaniel Greene, 218 Va. 228, 237 S.E.2d 107 (1977). Interpreting the "owner" exception in the Virginia real estate brokers licensing statute, Va. Code § 54-734, which in pertinent part is in all material respects identical to the above quoted portion of G.S. 93A-2(c), the Supreme Court of Virginia said:

Thus, the question presented . . . is whether, within the meaning of Va. Code § 54-734, a shareholder is an owner of land of the corporation in which the shares are held.

The mere statement of this question suggests a negative answer. Nothing in the statutory language employed in § 54-734 displays any intent to ascribe to the word "owner" a meaning different from what it enjoys in ordinary legal contemplation. Even if, because of the licensing statute's penal nature, we construe the word "owner" liberally in favor of an exemption, we cannot conclude that a shareholder is an owner of land of the corporation in which the shares are held. Such a construction not only would subvert the shareholder's traditional status vis-a-vis the corporation but also would thwart the salutary purpose of the licensing requirement, viz., "to protect the public from the fraud, misrepresentation and imposition of dishonest and incompetent persons."

218 Va. at 231, 237 S.E.2d at 109.

We note in passing that the "owner exemption" clauses of G.S. Ch. 93A upon which appellant here attempts to rely have now been effectively eliminated from our statute insofar as licensed real estate brokers and salesmen are concerned. By Sec. 6 of Ch. 616 of the 1979 Session Laws, our General Assembly, effective 21 May 1979, has expressly provided that, notwithstanding anything to the contrary in G.S. Ch. 93A, the Board shall have the power to suspend or revoke the license of a real estate broker or real estate salesman who violates any of the provisions of G.S. Ch. 93A when selling or leasing his own property.

The judgment of the superior court affirming the decision and order of the North Carolina Real Estate Licensing Board revoking appellant's real estate broker's license is

Affirmed.

HEDRICK and VAUGHN, JJ., concur.