Wholesaling in Illinois
IS WHOLESALING ILLEGAL IN ILLINOIS?
The Real Estate License Act of 2000, 225 ILCS 454/1-1, et seq., and its accompanying
regulations, 68 Ill.Admin. Code pt. 1450, govern the business of real estate brokerage in Illinois.
The Act, as amended, defines a real estate “broker” as an individual, partnership, limited liability company, corporation, or registered limited liability partnership other than a real estate salesperson or leasing agent who, whether in person or through any media or technology, for another and for compensation, or with intention or expectation of receiving compensation, either directly or indirectly:
(1) Sells, exchanges, purchases, rents, or leases real estate.
(2) Offers to sell, exchange, purchase, rent, or lease real estate.
(3) Negotiates, offers, attempts, or agrees to negotiate the sale, exchange, purchase, rental, or leasing of real estate.
(4) Lists, offers, attempts, or agrees to list real estate for sale, lease, or exchange.
(5) Buys, sells, offers to buy or sell, or otherwise deals in options on real estate or improvements thereon.
(6) Supervises the collection, offer, attempt, or agreement to collect rent for the use of real estate.
(7) Advertises or represents himself or herself as being engaged in the business of buying, selling, exchanging, renting, or leasing real estate.
(8) Assists or directs in procuring or referring of leads or prospects, intended to result in the sale, exchange, lease, or rental of real estate.
(9) Assists or directs in the negotiation of any transaction intended to result in the sale, exchange, lease, or rental of real estate.
(10) Opens real estate to the public for marketing purposes.
(11) Sells, leases, or offers for sale or lease real estate at auction. [Emphasis added.] 225 ILCS 454/1-10.
This statutory definition of real estate “broker” is broad, All involve the actual transfer of real estate as the object of the action. Wholesaling is the sale of the contract buying real estate.
Real estate brokers must comply with the provisions of the Real Estate License Act of 2000 and its accompanying regulations or be subject to discipline. Section 5-15(a) of the Act provides: It is unlawful for any person, corporation, limited liability company, registered limited liability partnership, or partnership to act as a managing broker, real estate broker . . . or to advertise or assume to act as such broker . . . without a properly issued sponsor card or a license issued under this Act by the Department, either directly or through its authorized designee. 225 ILCS 454/5-15(a). A license issued by the IDFPR certifies that the real estate broker has fulfilled all of the requirements of licensure under the Act. 225 ILCS 454/1-10.
As of December 31, 2009, the Illinois Real Estate License Act of 2000 provides for a private right of action when private citizens can seek to stop the unlicensed practice of real estate brokerage. 225 ILCS 454/20-21(c).
Other than as provided in Section 5-20 of this Act, if any person practices as a real estate broker, real estate salesperson or leasing agent or holds himself or herself out as a licensed sponsoring broker, managing broker, real estate broker, real estate salesperson or leasing agent under this Act without being issued a valid existing license by the Department, then any licensed sponsoring broker, managing broker, real estate broker, real estate salesperson, leasing agent, any interested party, or anyperson injured thereby may, in addition to the Secretary, petition for relief as provided in subsection (a) of this Section. Id.
Subsection (a) allows the Secretary of the Illinois Department of Financial and Professional Regulation to petition for an order enjoining the violation or for an order enforcing compliance with the Act. 225 ILCS 454/20-21(a).
The Illinois Department of Financial and Professional Regulation has regulatory oversight over the practice of real estate brokerage. To that end, the IDFPR has authority to initiate disciplinary proceedings against licensees for violations of the Illinois Real Estate Act of 2000. The IDFPR may “refuse to issue or renew a license, may place on probation, suspend, or revoke any license, reprimand, or take any other disciplinary or non-disciplinary action as the Department may deem proper or impose a fine not to exceed $25,000 upon any licensee under this Act . . . for any one or combination of” the grounds for discipline set forth in §20-20 of the Act, 225 ILCS 454/20-20.
Additionally, a licensee may be subject to both civil penalties and criminal liability for the unlicensed practice of real estate brokerage: Any person who practices, offers to practice, attempts to practice, or holds oneself out to practice as a real estate broker, real estate salesperson, or leasing agent without being licensed under this Act shall, in addition to any other penalty provided by law, pay a civil penalty to the Department in an amount not to exceed $25,000 for each offense as determined by the Department. 225 ILCS 454/20-10(a). Any person who is found working or acting as a managing broker, real estate broker, real estate salesperson, or leasing agent or holding himself or herself out as a licensed sponsoring broker, managing broker, real estate broker, real estate salesperson, or leasing agent without being issued a valid existing license is guilty of a Class A misdemeanor and on conviction of a second or subsequent offense the violator shall be guilty of a Class 4 felony. 225 ILCS 454/20-22.
It is a fundamental principle under Illinois law that parties can agree to any terms, and can contract in any situation, as long as there is no legal prohibition or public policy that dictates otherwise. Contracts for the sale of lands for a term longer than one year must be in writing to satisfy the Frauds Act. The contract must be signed by the party obligated by it or by some other person whom that party has lawfully authorized in writing. Further, the writing must contain a description of the property and the terms of sale, including the price and manner of payment. Although the Frauds Act requires that any contract for the sale of land be in writing, it contains no such requirement with regard to real estate brokers’ contracts of employment or the commissions derived from them. A brokerage contract may be oral, and the law applicable to ordinary contracts governs. A lease for a term of more than one year must be in writing and, at a minimum, contain the names of the parties, a description of the leased property, the amount of the rent, and the term of the lease.
Illinois courts have adopted the definition of “assignment” which is: An assignment of a right is a manifestation of the assignor’s intention to transfer it by virtue of which the assignor’s right to performance by the obligor is extinguished in whole or in part and the assignee acquires a right to such performance. If a valid assignment is effected, the assignee acquires all of the interest of the assignor in the property that is transferred. The assignee, it has been often said, is placed ‘in the shoes’ of the assignor.
Illinois law recognizes the distinction between the assignment of a right and the delegation of a duty and recognizes that an assignment can involve merely the transfer of a right. In this respect, Illinois authorities, recognize the general rule that rights under a contract are freely assignable.
As a general matter assignments are governed by contract law, and an assignment is subject to the same requisites for validity as are other contracts, such as intent, mutuality of assent, capacity to contract, legal subject matter, and consideration.
It is my opinion that wholesaling is not real estate brokerage as the real estate sale has already been consummated and only the sales contract is being sold and that valuable right is a saleable commodity under Illinois law.
Attached list of prohibited contracts in Illinois and wholesaling is not among them.
Void Contracts or Clauses Under Illinois Statutes
Contracts with the Government or Clauses in Government Contracts
A. Conflict of Interest Statutes
B. Bidder Requirements
1. Disclosure
2. Discretion of Procurement Officer
C. Collusion Among Bidders
D. Not Budgeted and Appropriated
E. Contracts Must Conform to Statutes, Ordinances, Rules, and Regulations
F. Miscellaneous Provisions
G. Acts Exempting Certain Government Actions from the Voiding Provisions
Real Estate Contracts or Leases
A. Condominium Property Act
B. Agreement for Deed or Installment Land Sales
There are two statutes that make an entire land contract voidable.
The first, the Dwelling Unit Installment Contract Act, 765 ILCS 75/0.01, et seq., requires that a contract for the sale of a “dwelling unit” state that the seller warrants that there is no notice that has been received of a dwelling code violation or, if one has been received, that a list of the notices and statements is available to the contract purchaser. 765 ILCS 75/1, 75/2. If this clause is not in the contract for sale, the buyer has the option to void the entire contract. 765 ILCS 75/2.
The second, the Sale of Residential Property Subject to Land Trust Act, 765 ILCS 430/0.01, et seq., requires that if the seller in an installment sale contract is a trust, in addition to the trust signing the contract, the names of the beneficiaries having the power of direction must be disclosed, the trustee must be named, and all must sign the contract. 765 ILCS 430/2. The buyer has the option to void the contract if this is not done. Id.
C. Clause Prohibiting or Penalizing Recording Real Estate Contract
D. Timeshare Sale Not Complying
E. Acts That Void Leases
F. Property Taxes of Alien Landlords Act
G. Undisclosed Principal and the Chicago Board of Education
H. Mortgage Rescue Fraud Act
Effective January 1, 2007, the Mortgage Rescue Fraud Act, 765 ILCS 940/1, et seq., is aimed at the persons or organizations that prey on homeowners in difficulty. It makes any agreement with a “distressed property consultant” or a “distressed property purchaser” subject to its provisions. Any waiver of the provisions of the Act is declared void. 765 ILCS 940/20.
The distressed property consultant is required to provide a written notice containing statutory provisions with a form notice of cancellation. One of the prohibitions is that the consultant cannot “[t]ake any money from you or ask you for money” until the consultant has fully performed. 765 ILCS 940/10. Similarly, a contract to convey a distressed property must be in writing (765 ILCS 940/25) and contain certain provisions (765 ILCS 940/30) and a notice about the right to cancel it (765 ILCS 940/30, 940/35, 940/40). Any waiver of §§35 and 40 is void. 765 ILCS 940/45.
Statutes Directed at Specific Businesses
A. Particular Business Rules
1. Hearing Instrument Consumer Protection Act
2. Physical Fitness Services Act
3. Dating Referral Services Act
4. Dance Studio Act
5. Illinois Fair Invention Development Standards Act
6. Illinois Loan Brokers Act of 1995
7. Illinois Securities Law of 1953
8. Credit Services Organizations Act
9. Illinois Pre-Need Cemetery Sales Act
10 Illinois Business Brokers Act of 1995
B. Miscellaneous Statutes Targeting Particular Business Transactions
1. Motor Vehicle Leasing Act
2. Illinois Equipment Fair Dealership Law
3. Consignment of Art Act
4. Construction Contract Indemnification for Negligence Act
5. Health Care Arbitration Act
6. Legal Business Solicitation Act
7. Illinois Commercial Transportation Law
8. Debt Management Service Act
9. Building and Construction Contract Act
Under the Building and Construction Contract Act, 815 ILCS 665/1, et seq., any provision in connection with a building or construction contract to be performed in Illinois that makes the contract subject to the laws of another state or requires litigation or dispute resolution in another state is void and unenforceable. 815 ILCS 665/10.
Insurance
A. Insurance Contracts
1. Workers’ Occupational Diseases Act
2. Illinois Vehicle Code; Proof of Financial Responsibility for the Future
3. Managed Care Reform and Patient Rights Act
B. Miscellaneous Provisions Pursuant to the Illinois Insurance Code
1. Public Insurance Adjusters
2. Fraternal Benefit Societies
3. Insurance Holding Company Systems
4. Urban Property Insurance
215 ILCS 5/525.4 is aimed at redlining. This particular statute provides that the insurance issued by the urban property insurance administrator may be voided if the property is held in a land trust and all the beneficial interests are not disclosed and updates are not given as changes are made. 215 ILCS 5/525.4(2).
. Employment
A. Sales Representative Act
B. Wages of Women and Minors Act
C. Minimum Wage Law
D. Illinois Educational Labor Relations Act
E. Workers’ Compensation Act
F. Burial Rights Act
G. Employment Contract Act
H. State Prohibition of Goods from Child Labor Act
. Miscellaneous
A. Barber, Cosmetology, Esthetics, Hair Braiding, and Nail Technology Act of 1985
B. Guardians for Disabled Adults
C. Uniform Commercial Code
1. Leases
2. Creditors
3. Remedies
D. Illinois Marriage and Dissolution of Marriage Act
E. Criminal Code of 1961; Gambling
F. Liquor Control Act of 1934
G. Illinois Savings and Loan Act of 1985
H. Public Utilities Act
I. Drycleaner Environmental Response Trust Fund Act
J. Medical Practice Act of 1987