New York State - Executive - EXC - Article 6-E
ARTICLE 6-E STATE CERTIFIED AND LICENSED REAL ESTATE APPRAISERS
Section 160. Application.
160-a. Definitions.
160-b. Use of the title "state certified real estate appraiser" or "state licensed real estate appraiser" or "state licensed real estate appraiser assistant".
160-c. State board of real estate appraisal.
160-d. Powers of the board.
160-e. Powers of the department.
160-f. Fees.
160-g. Certification and licensing process.
160-h. License and classes of certification.
160-i. Examination requirement.
160-j. Examination prerequisites.
160-k. Experience requirement.
160-l. Terms of registration.
160-m. Nonresident certification and licensing.
160-n. Nonresident certification and licensing by reciprocity.
160-o. Renewal certificate or license.
160-p. Basis for denial.
160-q. Principal place of business.
160-r. Certificate or license.
160-s. Use of term.
160-t. Continuing education.
160-u. Disciplinary proceedings.
160-v. Due process.
160-w. Hearing and judicial review.
160-x. Classification of services.
160-y. Contingent fees.
160-z. Retention of records.
160-aa. Transitional licensing.
160-bb. Severability.
§ 160. Application. This article applies to the profession of real estate appraisers and the use of the titles "state certified real estate appraiser" and "state licensed real estate appraiser".
§ 160-a. Definitions. As used in this article the following terms shall mean:
1. "Analysis" is a study of real estate or real property other than estimating value.
2. "Appraisal" or "real estate appraisal" means an analysis, opinion or conclusion relating to the nature, quality, value or utility of specified interests in, or aspects of, identified real estate. An appraisal may be classified by subject matter into either a valuation or an analysis.
3. "Appraisal report" means any written communication of an appraisal.
4. "Board" means the state board of real estate appraisal established pursuant to the provisions of section one hundred sixty-c of this article.
5. (a) "Certified appraisal" or "certified appraisal report" means an appraisal or appraisal report given or signed and certified as such by a certified real estate appraiser. When identifying an appraisal or appraisal report as "certified", the state certified real estate appraiser must indicate which type of certification is held. A certified appraisal or appraisal report represents to the public that it meets the appraisal standards defined in this article.
(b) "Licensed appraisal" or "licensed appraisal report" means an appraisal or appraisal report given or signed and authenticated as such by a licensed real estate appraiser. A licensing appraisal or appraisal report represents to the public that it meets the appraisal standards as prescribed by the board.
6. (a) "State certified real estate appraiser" means a person who develops and communicates real estate appraisal and who holds a current, valid certificate issued to him or her for either general or residential real estate under the provisions of this article.
(b) "State licensed real estate appraiser" means a person who develops and communicates real property appraisals and who holds a current valid license issued to him or her for residential real property under the provisions of this article.
(c) "State licensed real estate appraiser assistant" means a person who assists and is supervised by a state certified real estate appraiser and who holds a current valid license issued to him or her under the provisions of this article.
7. "Department" shall mean the department of state.
8."Real estate" means an identified parcel or tract of land, including improvements, if any.
9. "Real property" means one or more defined interests, benefits and rights inherent in the ownership of real estate.
10. "Valuation" is an estimate of the value of real estate or real property.
§ 160-b. Use of the title "state certified real estate appraiser" or "state licensed real estate appraiser" or "state licensed real estate appraiser assistant". 1. Only a person certified under this article shall use the title "state certified real estate appraiser" or licensed under this article shall use the title "state licensed real estate appraiser" or "state licensed real estate appraiser assistant" or assume that title or any title, designation or abbreviation likely to create the impression of certification or license by this state as a real estate appraiser or real estate appraiser assistant. After December thirty-first, nineteen hundred ninety-one, only a person who is certified or licensed pursuant to this article shall describe or refer to any appraisal or other evaluation of real estate located in this state by the term "certified" or "licensed".
2. Nothing in this article shall preclude a person who is not a state certified or licensed real estate appraiser or a licensed real estate appraiser assistant from appraising real estate for compensation.
§ 160-c. State board of real estate appraisal. 1. There is hereby established within the department of state a state board of real estate appraisal which shall consist of nine members, three of whom shall be public members and six of whom shall be real estate appraisers, who shall have and exercise the powers of the board as set forth in section one hundred sixty-d of this article.
2. Three members shall be appointed by the governor, one of whom shall be a public member; two members shall be appointed by the temporary president of the senate, one of whom shall be a real estate appraiser and one of whom shall be a public member; two members shall be appointed by the speaker of the assembly, one of whom shall be a real estate appraiser and one of whom shall be a public member; one member shall be appointed by the minority leader of the senate; one member shall be appointed by the minority leader of the assembly. The term of each member shall be five years.
3. Notwithstanding the foregoing, the members of the first board who are real estate appraisers, need not be certified or licensed under this article prior to their appointment to the board. The board shall appoint an executive secretary who shall be a real estate appraiser.
4. The executive secretary and real estate appraiser members first appointed to the board shall be certified designated members in good standing of a nationally recognized real estate appraisal organization that as of June first, nineteen hundred eighty-nine, required appraisal experience, education and testing in order to become a designated member, in addition to adherence to standards of professional practice in order to retain such designation. Each real estate appraiser member of the board appointed after January first, nineteen hundred ninety-six, must be a state certified real estate appraiser. At least one-half of the appraiser members appointed after January first, nineteen hundred ninety-six, shall hold the general appraisal certificate. Any vacancy occurring on the board shall be filled within sixty days of its occurrence, in the same manner as the member whose vacancy is being filled was appointed. A person appointed to fill a vacancy occurring other than by expiration of a term shall be appointed for the unexpired term of the member he succeeds. No person shall serve as a member of the board for more than two consecutive terms. The public members of the board shall not be engaged in the practice of real estate appraising.
§ 160-d. Powers of the board. 1. The board shall adopt rules and regulations in aid or furtherance of this article and shall have the following powers and duties:
a. To define, with respect to each category of state certified real estate appraisers, state licensed real estate appraisers, and state licensed real estate appraiser assistants, the type of educational experience, appraisal experience and equivalent experience that will meet the statutory requirements of this article, provided, however, that in no event shall the experience, education and examination requirements adopted by the board be less than the minimum criteria established by the Appraisal Subcommittee of the Federal Financial Institutions Examination Council or by the Appraiser Qualification Board of the Appraisal Foundation as referred to in title XI of the Financial Institutions Reform, Recovery and Enforcement Act of 1989;
b. To establish examination specifications consistent with the standards of the Appraisal Qualifications Board of the Appraisal Foundation for state licensed real estate appraiser assistants, state licensed real estate appraisers and each category of state certified real estate appraisers, to provide or procure appropriate examination questions and answers and to establish procedures for grading examinations;
c. To define, with respect to state licensed real estate appraiser assistants, state licensed real estate appraisers and each category of state certified real estate appraisers, the continuing education requirements for the renewal of a license or a certification that will meet the statutory requirements provided in this article;
d. To review the standards for the development and communication of real estate appraisals provided in this article and to adopt regulations explaining and interpreting such standards, provided, however, that such standards must, at a minimum, conform to the uniform standards of professional appraisal as promulgated by the Appraisal Standards Board of the Appraisal Foundation; and
e. To prescribe the scope of practice for state licensed real estate appraiser assistants, state licensed real estate appraisers and each category of state certified real estate appraisers, provided, however, that in no event shall the scope of practice prescribed by the board be less than the scope of practice established by the Appraisal Subcommittee of the Federal Financial Institutions Examination Council or by the Appraiser Qualification Board of the Appraisal Foundation as referred to in title XI of the Financial Institutions Reform, Recovery and Enforcement Act of 1989;
f. To perform such other functions and duties as may be necessary in carrying out the provisions of this article.
2. The board shall promulgate rules and regulations prescribing the form and content of each appraisal report. Such rules and regulations shall include but are not limited to the following requirements:
a. Each appraisal report shall clearly and accurately disclose any extraordinary assumption or limited condition that directly affects an appraisal.
b. Each written appraisal report shall comply with the following specific reporting guidelines:
(1) Identify and describe the real estate being appraised;
(2) Identify the real property being appraised;
(3) Define the opinion that is the purpose of the appraisal and describe the scope of the appraisal;
(4) Set forth the effective date of the opinion and the date of the appraisal report;
(5) Set forth the appraiser's opinion of the highest and best use of the real estate being appraised when such an opinion is necessary and appropriate;
(6) Set forth the appraisal procedure followed, the data considered and the reasoning that supports the analyses, opinions and conclusions;
(7) Set forth all assumptions and limiting conditions that affect the analyses, opinions and conclusions in the appraisal report; and
(8) Set forth any additional information that may be appropriate to show compliance with, and identify permitted departures from, the requirements for the development of appraisals as provided in this article or as established by the board.
3. The board shall establish standards of developing an appraisal. Such standards shall, among other things, state the following guidelines:
a. All state certified or licensed real estate appraisers conducting certified or licensed appraisals, performing appraisal service or issuing an appraisal shall:
(1) Be aware of, understand and correctly employ those recognized appraisal methods and techniques that are necessary to produce a credible analysis, opinion or conclusion;
(2) Not commit a substantial error or omission of commission which results from a significant departure from the recognized appraisal methods and techniques;
(3) Not commit a substantial error or omission of commission that significantly affects an analysis, opinion or conclusion;
(4) Identify the real estate and real property under consideration, define the opinion that is the purpose of the appraisal, consider the scope of the appraisal service and identify the effective date of the opinion;
(5) Identify and consider the appropriate procedures and market data required to perform the appraisal service, where appropriate;
(6) Consider the effect on use and value of the following factors: existing land use regulations, reasonably probable modifications of land use regulations, economic demand, the physical adaptability of the property, neighborhood trends and the highest and best use of the property;
(7) Consider the effect on the property being appraised of anticipated public or private improvements, located on or off the site, to the extent that market actions reflect the anticipated improvements as of the effective appraisal date;
(8) Recognize that land may be appraised as though vacant and avail- able for development and that the appraisal of improvements is based on their actual contributions to the site;
(9) Appraise proposed improvements only after examining and having available for future examination plans, specifications or other documentation sufficient to identify the scope and character of the proposed improvements, evidence indicating the probable time of completion of the proposed improvements, and reasonably clear and appropriate evidence supporting development costs, anticipated earnings, occupancy projections and the anticipated competition at the time of completion; and
(10) Base estimates of anticipated future rent and expenses for the real estate and real property being appraised on reasonably clear and appropriate evidence.
b. In addition to the foregoing, an appraiser shall define the value being considered. If the value estimate is a statement or estimate of market value, he or she shall clearly indicate whether the statement or estimate is the most probable price in terms of cash or financial arrangements equivalent to cash or other terms as may be precisely defined. If an estimate of value is based on submarket financing or financing with unusual conditions or incentives, the terms of such a typical financing shall be clearly set forth, their contributions to, or negative influence on value shall be described and estimated, and the market data supporting the valuation estimate shall be described and explained.
c. For each real property appraisal analysis, opinion or conclusion that contains an estimate of value, a state certified or licensed real estate appraiser shall observe all of the following specific real property appraisal guidelines:
(1) Consider whether an appraised fractional interest, physical segment or partial holding contributes pro rata to the value of the whole;
(2) Identify any personal property or other items that are not real estate but are included with or considered in connection with real estate being appraised and contribute to the total value estimate or conclusion;
(3) Consider and analyze any current agreement of sale, option or listing of the real estate and real property being appraised, if the information is available to the person in the normal course of business;
(4) Consider and analyze any prior sales of the property being appraised that occurred within one year;
(5) When estimating the value of a leased fee estate or a leasehold estate, analyze and consider the effect on value, if any, of the terms and conditions of the lease; and
(6) Give careful consideration to the effect on value, if any, of the assemblage of the various estates or component parts of an estate and refrain from estimating the value of the whole solely by adding together the individual values of its various estates or component parts.
d. In developing a review appraisal, a state certified or licensed real estate appraiser shall observe all of the following specific appraisal guidelines:
(1) Identify the appraisal report being reviewed, the real estate being appraised, the real property being appraised, the effective date of the opinion in the original report, the date of the original report and the date of the review;
(2) Identify the scope of the review process to be conducted, including a determination of whether or not it is appropriate or essential to inspect the appraised property and the data presented;
(3) Form an opinion as to the adequacy and relevance of the data used and the propriety of any adjustment made;
(4) Form an opinion as to whether or not the appraisal methods and techniques used were appropriate and, if not, the reasons for the person's disagreement with the original appraisal; and
(5) Form an opinion as to whether or not the analyses, opinions or conclusions in the report being reviewed are correct or appropriate and, if not, state his or her analyses, opinions or conclusions and his or her reasons for disagreement with the original appraisal.
e. In developing an appraisal for an employer or a client, a state certified or licensed real estate appraiser shall carefully consider and determine whether the appraisal service to be performed is intended to result in an analysis, opinion or conclusion of a disinterested third party and therefore would be classified as an appraisal assignment as defined in subdivision two of section one hundred sixty-x of this article. If the appraisal service to be performed is not intended to result in an analysis, opinion or conclusion of a disinterested third party, the person shall then carefully consider whether or not he or she would be perceived by third parties or the public as acting as a disinterested third party.
f. Prior to entering into an agreement to perform a real property appraisal service, a state certified or licensed real estate appraiser shall carefully consider the knowledge and experience that will be required to complete the appraisal service competently and either:
(1) Have the knowledge and experience necessary to complete the appraisal service competently; or
(2) Immediately disclose the lack of knowledge or experience to the client and take all steps necessary to complete the appraisal service competently.
g. A state certified or licensed real estate appraiser may enter into an agreement to perform a real property appraisal service that calls for something less than, or different from, the work that would otherwise be required by the specific appraisal guidelines, provided that prior to entering into the agreement, he or she has done all of the following:
(1) The state certified or licensed real estate appraiser has determined that the appraisal service to be performed is not so limited in scope that the resulting analysis, opinion or conclusion concerning real estate or real property would tend to mislead or confuse the client, the users of the appraisal report or the public; and
(2) The state certified or licensed real estate appraiser has advised the client that the appraisal service calls for something less than, or different from, the work required by the specific appraisal guidelines, and therefore the appraisal report will include a qualification that reflects the limited or differing scope of the appraisal service.
§ 160-e. Powers of the department. The department shall have the following powers and duties:
1. To receive applications for certification and licensing;
2. To establish the administrative procedures for processing applications for certification and licensing;
3. To approve or disapprove applications for certification or license and issue certificates or licenses;
4. To maintain a registry of the names and addresses of people certified or licensed under this article;
5. To retain records and all application materials submitted to it;
6. To approve courses and seminars for original certification or licensing and continuing education to ensure that the same are consistent with the standards established by the board, or equivalent to those required by such standards;
7. To assist the board in such other manner as the board may request;
8. To establish administrative procedures for disciplinary proceedings conducted pursuant to the provisions of this article; and
9. To suspend and revoke certificates or licenses pursuant to the disciplinary proceedings provided for in this article.
§ 160-f. Fees. 1. The department shall charge and collect fees not in excess of the following:
a. An application fee for certification and licensing of two hundred fifty dollars.
b. An examination fee of fifty dollars.
c. A reexamination fee of fifty dollars.
d. A fee for recertification or renewal of license of two hundred fifty dollars.
e. A delinquent renewal fee of two hundred dollars.
2. Notwithstanding any other law, the department may transmit an annual registry fee as set by the federal appraisal subcommittee in accordance with 12 U.S.C. 3338 (a)(4)(A) from such individuals who perform or seek to perform appraisals in federally related transactions and to transmit a roster of such individuals to the Appraisal Subcommittee of the Federal Financial Institutions Examination Council as required by Title XI of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989.
3. All fees collected under this section shall be paid into the business and licensing services account established pursuant to section ninety-seven-y of the state finance law.
§ 160-g. Certification and licensing process. 1. Applications for original certification and recertification, original license and renewal of license, and examinations shall be made in writing to the department on forms approved by the board.
2. The fees, as fixed by the department pursuant to section one hundred sixty-f of this article, must accompany all applications for original certification and recertification, original license and renewal of license, and examination.
3. At the time of filing an application for certification or license, each applicant shall sign a pledge to comply with the standards set forth in this article and state that he or she understands the types of misconduct for which disciplinary proceedings may be initiated against a state certified real estate appraiser, or a state licensed real estate appraiser, as set forth in this article.
§ 160-h. Licenses and certifications. 1. There shall be one class of license for state licensed real estate appraiser assistants, one class of license for state licensed real estate appraisers and two classes of certification for state certified real estate appraisers. The classes of certification shall be state certified residential real estate appraiser and state certified general real estate appraiser. The board shall prescribe the scope of practice for each license and both classes of certification, provided, however, that in no event shall the scope of practice prescribed by the board be less than the minimum criteria established by the Appraisal Subcommittee of the Federal Financial Institutions Examination Council or by the Appraiser Qualification Board of the Appraisal Foundation as referred to in title XI of the Financial Institutions Reform, Recovery and Enforcement Act of 1989.
2. The application for original certification and recertification or original license and renewal of license, and examination shall specify whether it is for a license or certification being applied for and previously granted. If the application is for a license or renewal, it shall specify for what class of license the application is being made. If the application is for a certification or recertification, it shall specify for what class of certification the application is being made.
§ 160-i. Examination requirement. An original certification as a state certified real estate appraiser or an original license as a state licensed real estate appraiser shall not be issued to any person who has not demonstrated through a written examination process that he or she possesses the following:
1. Appropriate knowledge of technical terms commonly used in or related to real estate appraising, appraisals, report writing and economic concepts applicable to real estate;
2. Understanding of the principles of land economics, real estate appraisal processes, and of problems likely to be encountered in gathering, interpreting and processing of data in carrying out appraisal disciplines;
3. Understanding of the standards for the development and communication of real estate appraisals as provided in this article;
4. Knowledge of theories of depreciation, cost estimating, methods of capitalization, and the mathematics of real estate appraisal that are appropriate for the classification of certificate applied for;
5. Knowledge of other principles and procedures as may be appropriate for the respective classifications;
6. Basic understanding of real estate law; and
7. Understanding of the types of misconduct for which disciplinary proceedings may be initiated against a state certified real estate appraiser or a state licensed real estate appraiser, as set forth in this article.
§ 160-j. Examination prerequisites. 1. Certified general classification. As a prerequisite to taking the examination for certification as a state certified general real estate appraiser, an applicant shall present evidence satisfactory to the board that he or she has fulfilled the minimum education and experience requirements for such certification examination as established by the board, which shall not be less than the minimum criteria established by the Appraiser Qualification Board pursuant to Title XI of the Financial Institution Reform, Recovery and Enforcement Act of 1989.
2. Certified residential classification. As a prerequisite to taking the examination for certification as a state certified residential real estate appraiser, an applicant shall present evidence satisfactory to the board that he or she has fulfilled the minimum education and experience requirements for such certification examination as established by the board, which shall not be less than the minimum criteria established by the Appraiser Qualification Board pursuant to Title XI of the Financial Institution Reform, Recovery and Enforcement Act of 1989.
3. Licensed classification. As a prerequisite to taking the examination for licensing as a state licensed real estate appraiser, an applicant shall present evidence satisfactory to the board that he or she has fulfilled the minimum education and experience requirements for such certification examination as established by the board, which shall not be less than the minimum criteria established by the Appraiser Qualification Board pursuant to Title XI of the Financial Institution Reform, Recovery and Enforcement Act of 1989.
§ 160-k. Experience requirement. 1. An original certification of a state certified real estate appraiser, or an original license of a state licensed real estate appraiser, shall not be issued to any person who does not possess the equivalent of two years of appraisal experience in real property appraisal as defined by the board supported by adequate written reports. Such experience may include fee and staff appraisal, ad valorem tax appraisal, review appraisal, appraisal analysis, highest and best use analysis, feasibility analysis or study, and teaching of appraisal courses at a university, college, or junior college when such courses have a duration of not less than ten weeks.
2. A person who is not a state certified real estate appraiser under this article may assist a state certified real estate appraiser in the preparation of an appraisal, provided that he or she is actively and personally supervised by the state certified real estate appraiser and provided that any appraisal report is reviewed and signed by the supervising state certified appraiser.
3. Each applicant for certification or license shall furnish under oath a detailed listing of the real estate appraisal reports for each year for which experience is claimed by the applicant. Upon request, the applicant shall make available to the department for examination, a sample of appraisal reports which the applicant has prepared in the course of his or her appraisal practice.
4. No state certified real estate appraiser shall supervise more than three licensed real estate appraiser assistants.
§ 160-l. Terms of registration. The term of a certificate or license issued under the authority of this article shall be two years from the date of issuance. The expiration date of the certificate or license shall appear on the certificate or license and no other notice of its expiration need be given to its holder.
§ 160-m. Nonresident certification and licensing. 1. Every applicant for certification or licensing under this article who is not a resident of this state shall submit, with the application for certification or license, an irrevocable consent that service of process upon him or her may be made by delivery of the process to the secretary of state if, in an action against the applicant in a court of this state arising out of the applicant's activities as a state certified real estate appraiser, or a state licensed real estate appraiser, the plaintiff cannot, in the exercise of due diligence, effect personal service upon the applicant.
2. When a nonresident of this state, certified or licensed under the laws of his resident state, the certification and licensing process of which has not been disapproved by the appraisal subcommittee of the federal financial institutions examination council, does not maintain an office for providing appraisal services to clients in this state, and has complied with subdivision one of this section, such nonresident may, upon recommendation of the board, pursuant to such temporary licensing rules or regulations as the board may promulgate, provide certified or licensed appraisals. No temporary certificate or license shall be valid for a duration greater than one year after the date of issue. Any person performing, or seeking to perform, federally related appraisals shall be liable for, and pay, all fees, rated proportionately, which would apply to such person were he or she a resident of this state.
3. A nonresident of this state who has complied with subdivision one of this section, but who does not qualify for treatment under subdivision two of this section, may obtain a certificate as a state certified real estate appraiser or a license as a state licensed real estate appraiser by conformity to all the provisions of this article relating to state certified or licensed real estate appraisers.
4. The board shall recognize on a temporary basis the certification or license of an appraiser issued by another state pursuant to section 1122 of Title XI of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, Pub. Law. No. 101-73, 103 Stat. 183 (1989) (codified at 12 U.S.C. 331 et seq.).
§ 160-n. Nonresident certification and licensing by reciprocity. If, in the determination of the board, the certification or licensing process has not been disapproved by the appraisal subcommittee of the federal financial institutions examination council, an applicant who is certified under the laws of such other state may obtain a certificate as a state certified real estate appraiser or a license as a state licensed real estate appraiser in this state upon such terms and conditions as may be determined by the department.
§ 160-o. Renewal certificate or license. 1. a. To obtain a recertification as a state certified real estate appraiser, or a renewal of license as a state licensed real estate appraiser, the holder of a current, valid certificate or license shall make application and pay the prescribed fee to the department not earlier than one hundred twenty days nor later than thirty days prior to the expiration date of the certificate or license then held. With the application for recertification or renewal of license, the state certified real estate appraiser or state licensed real estate appraiser shall present evidence in the form prescribed by the department of having completed the continuing education requirements, if any, for renewal specified in this article.
b. If the department determines that an applicant has failed to meet the requirements for renewal of certification or licensing through mistake, misunderstanding or circumstances beyond the control of the applicant, the department may extend the term of the certificate or license for a period not to exceed six months, upon payment by the applicant of the prescribed fee for the extension.
c. If the applicant satisfies the requirements for renewal during the extended term of certification or license, the beginning date of the new renewal certificate or license shall be the day following the expiration of the certificate or license previously held by the applicant.
2. If a person fails to renew a certificate as a state certified real estate appraiser, or license as a state licensed real estate appraiser, prior to its expiration or within a period of extension granted by the department pursuant to this article, the person may obtain a recertification or renewal of license by satisfying all of the requirements for renewal and by the payment of a late renewal fee.
3. The license of a state licensed real estate appraiser assistant may be renewed in accordance with the provisions of subdivisions one and two of this section.
§ 160-p. Basis for denial. The department may, in accordance with the provisions of this article relating to hearings, deny the issuance of a certificate as a state certified real estate appraiser, or license as a state licensed real estate appraiser, or license as a state licensed real estate appraiser assistant, to an applicant on any of the grounds enumerated in this article.
§ 160-q. Principal place of business. 1. Each state certified or licensed real estate appraiser and each state licensed real estate appraiser assistant shall advise the department of the address of his or her principal place of business and all other addresses at which he or she is currently engaged in the business of preparing or assisting with the preparation of real property appraisal reports.
2. Change of name or address. Notice in writing in the manner and form prescribed by the department shall be given the department at its offices in Albany within ten days of a change of name or address of the state certified or licensed real estate appraisers or of the state licensed real estate appraiser assistants, except those made on a recertification or renewal application. The fee for filing each change of name or address notice shall be ten dollars.
§ 160-r. Certificate or license. 1. A certificate or license issued under authority of this article shall bear the signature of the executive secretary of the board and a certificate or license number assigned by the department.
2. Each state certified real estate appraiser shall place his or her certificate number, and each licensed real estate appraiser shall place his or her license number adjacent to or immediately below the title "State Certified Residential Real Estate Appraiser", "State Certified General Real Estate Appraiser" or "State Licensed Real Estate Appraiser", respectively, when used in an appraisal report or in a contract or other instrument used by the certificate or license holder in conducting real property appraisal activities.
3. Duplicate licenses or certifications or pocket cards. In the case of loss, destruction, or damage, the secretary of state may, upon submission of a request in such form and manner as the department may prescribe, issue a duplicate license or certification or pocket card upon payment of a fee of ten dollars.
§ 160-s. Use of term. 1. The title "state certified real estate appraiser" may only be used to refer to individuals who hold the certificate, and the title "state licensed real estate appraiser" may only be used to refer to individuals who hold the license, and the title "state licensed real estate appraiser assistant" may only be used to refer to individuals who hold the license, and may not be used following or immediately in conjunction with the name or signature of a firm, partnership, corporation or group; or in such manner that it might be interpreted as referring to a firm, partnership, corporation, group or anyone other than an individual holder of the certificate or license.
2. No certificate or license shall be issued under the provisions of this article to a corporation, partnership, firm or group. This shall not be construed to prevent a state certified or licensed real estate appraiser from signing an appraisal report on behalf of a corporation, partnership, firm or group practice.
§ 160-t. Continuing education. 1. As a prerequisite to recertification or renewal of license, a certified or licensed real estate appraiser shall present evidence satisfactory to the department of having met the continuing education requirements, if any, pursuant to this article.
2. The basic continuing education requirement for recertification or renewal of license shall be the completion by the applicant, during the immediately preceding term of certification or license, of not less than twenty-eight classroom hours of instruction in courses or seminars which have received the approval of the department. Computer based and distance learning courses may be approved by the department so long as providers demonstrate the ability to monitor and verify participation by the real estate appraiser for the specified time periods.
3. In lieu of meeting the requirements of subdivision two of this section an applicant for recertification or renewal of license may satisfy all or part of the requirements by presenting evidence of the following:
a. Completion of an educational program of study determined by the department to be equivalent, for continuing education purposes, to courses approved by the department pursuant to subdivision two of this section; or
b. Participation other than as a student in educational processes and programs approved by the department which relate to real property appraisal theory, practices or techniques, including, but not necessarily limited to, teaching, program development and preparation of textbooks, monographs, articles and other instructional materials.
4. The secretary of state or her duly appointed designee shall adopt regulations upon recommendation by the board for implementations of the provisions of this article to assure that persons renewing their certifications as state certified real estate appraisers or licenses as state licensed real estate appraisers have current knowledge of real property appraisal theories, practices and techniques which will provide a high degree of service and protection to those members of the public with whom they deal in a professional relationship under authority of the certification or license. The regulations shall prescribe the following:
a. Policies and procedures for obtaining departmental approval of courses of instruction pursuant to subdivision two of this section;
b. Standards, policies and procedures to be applied by the department in evaluating applicant's claims of equivalency in accordance with subdivision three of this section;
c. Standards, monitoring methods and systems for recording attendance to be employed by course sponsors as a prerequisite to department approval of courses for credit.
5. In adopting regulations pursuant to paragraph a of subdivision four of this section, the board shall give favorable consideration to courses of instruction, seminars and other real property appraisal educational courses or programs previously or hereafter developed by or under the auspices of professional appraisal organizations and utilized by those associations for purposes of designation or indicating compliance with the continuing education requirements of such organizations.
6. No amendment or repeal of a regulation adopted by the secretary of state or her duly appointed designee pursuant to this section shall operate to deprive a state certified real estate appraiser of credit toward recertification, or a state licensed real estate appraiser of credit toward renewal of license, for any course of instruction completed by the applicant prior to the amendment or repeal of the regulation which would have qualified for continuing education credit under the regulation as it existed prior to the repeal or amendment.
7. A certification as a state certified real estate appraiser, or a license as a state licensed real estate appraiser, that has been revoked as a result of disciplinary action by the department shall not be reinstated unless the applicant presents evidence of completion of the continuing education required by this article. This requirement of evidence of continuing education shall not be imposed upon any applicant for reinstatement who has been required to successfully complete the examination for state certified or licensed real estate appraiser as a condition to reinstatement of certification or license.
8. The board shall prescribe the continuing education requirements for licensed real estate appraiser assistants; provided, however, that in no event shall such requirements be less than the minimum criteria established by the Appraisal Subcommittee of the Federal Financial Institutions Examination Council or by the Appraiser Qualification Board of the Appraisal Foundation as referred to in title XI of the Financial Institutions Reform, Recovery and Enforcement Act of 1989.
§ 160-u. Disciplinary proceedings. 1. The rights of any holder under a state certificate as a state certified real estate appraiser, or a license as a state licensed real estate appraiser, may be revoked or suspended, or the holder of the certification or license may be otherwise disciplined in accordance with the provisions of this article, upon any of the grounds set forth in this section. The department may investigate the actions of a state certified or licensed real estate appraiser, and may revoke or suspend the rights of a certificate or license holder or otherwise discipline a state certified or licensed real estate appraiser for any of the following acts or omissions:
a. Procuring or attempting to procure a certificate or license pursuant to this article by knowingly making a false statement, submitting false information, refusing to provide complete information in response to a question in an application for certification or license or through any form of fraud or misrepresentation;
b. Failing to meet the minimum qualifications established by this article;
c. Paying money other than provided for by this article to any member or employee of the department to procure a certificate or license under this article;
d. A conviction of a felony or a misdemeanor which is substantially related to the qualifications, functions and duties of a person developing real estate appraisals and communicating real estate appraisals to others;
e. An act or omission involving dishonesty, fraud or misrepresentation with the intent to substantially benefit the certificate or license holder or another person or with the intent to substantially injure another person;
f. Violation of any of the standards for the development or communication of real estate appraisals as provided in this article;
g. Failure or refusal without good cause to exercise reasonable diligence in developing an appraisal, preparing an appraisal report or communicating an appraisal;
h. Negligence or incompetence in developing an appraisal, in preparing an appraisal report, or in communicating an appraisal;
i. Willfully disregarding or violating any of the provisions of this article or the regulations of the board for the administration and enforcement of the provisions of this article;
j. Accepting an appraisal assignment as defined in section one hundred sixty-x of this article, when the employment itself is contingent upon the appraiser reporting a predetermined estimate, analysis or opinion, or where the fee to be paid is contingent upon the appraiser reporting a predetermined estimate, analysis or opinion, or where the fee to be paid is contingent upon the opinion, conclusion or valuation reached, or upon the consequences resulting from the appraisal assignment;
k. Violating the confidential nature of governmental records to which he or she gained access through employment or engagement as an appraiser by a governmental agency; or
l. Entry of a final civil judgment against the person on grounds of fraud, misrepresentation or deceit in the making of any appraisal of real property.
2. In a disciplinary proceeding based upon a civil judgment, the certified or licensed real estate appraiser shall be afforded an opportunity to present matters in mitigation and extenuation, but may not collaterally attack the civil judgment.
3. The provisions of subdivisions one and two of this section shall also be applicable to licensed real estate appraiser assistants.
§ 160-v. Due process. 1. Before suspending or revoking any certification or license, the department shall notify the state certified or licensed real estate appraiser or licensed real estate appraiser assistant in writing of any charges made at least twenty days prior to the date set for the hearing and shall afford him or her an opportunity to be heard in person or by counsel.
2. The written notice may be served either personally or sent by certified mail to the last known business address of the appraiser.
3. The department shall have the power to subpoena and issue subpoena duces tecum and to take testimony by deposition, in the same manner as prescribed by law in judicial proceedings in the courts of this state.
§ 160-w. Hearing and judicial review. 1. The hearing on the charges shall be at a time and place prescribed by the department.
2. If the department determined that a state certified or licensed real estate appraiser or licensed real estate appraiser assistant is guilty of a violation of any of the provisions of this article, it shall prepare a finding of fact and recommend that such appraiser be reprimanded or that his or her certification or license be suspended or revoked. The decision and order of the department shall be final.
3. Any final decision or order of the department in certifying or denying certification or in recertification, or in licensing, denying license, or in renewal of a license, under this article or in revoking or suspending such certification or license or imposing any fine or reprimand on the holder of such certification or license shall be subject to review by a proceeding brought under and pursuant to article seventy-eight of the civil practice law and rules at the insistence of the applicant for such certification, the holder of the certificate or license so revoked or suspended or the person fined, reprimanded or otherwise aggrieved.
§ 160-x. Classification of services. 1. A client or employer may retain or employ a state certified or licensed real estate appraiser to act as a disinterested third party in rendering an unbiased estimate of value or analysis. A client or employer may also retain or employ a state certified or licensed real estate appraiser to provide specialized services to facilitate the client's or employer's objectives. In either case, the appraisal and the appraisal report must comply with the provisions of this article.
2. For the purposes of this article, the term "appraisal assignment" means an engagement for which an appraiser is employed or retained to act, or would be perceived by third parties or the public as acting, as a disinterested third party in rendering an unbiased analysis, opinion or conclusion relating to the nature, quality, value or utility of specified interests in, or aspects of, identified real estate.
3. For the purposes of this article, the term "specialized services" means those appraisal services which do not fall within the definition of appraisal assignment. The term "specialized services" may include valuation work and analysis work. Regardless of the intention of the client or employer, if the state certified or licensed real estate appraiser would be perceived by third parties or the public as acting as a disinterested third party in rendering an unbiased analysis, opinion or conclusion, the work is classified as an appraisal assignment and not "specialized services".
§ 160-y. Contingent fees. 1. A state certified or licensed real estate appraiser may not accept a fee for an appraisal assignment as defined in section one hundred sixty-x of this article, that is contingent upon the appraiser reporting a predetermined estimate, analysis, or opinion or is contingent upon the opinion, conclusion or valuation reached, or upon the consequences resulting from the appraisal assignment.
2. A state certified or licensed real estate appraiser who enters into an agreement to perform specialized services, as defined in section one hundred sixty-x of this article, may be paid a fixed fee or a fee that is contingent on the results achieved by the specialized services.
3. If a state certified or licensed real estate appraiser enters into an agreement to perform specialized services for a contingent fee, this fact shall be clearly stated in each written report. In each written report, this fact shall be clearly stated in a prominent location in such report and also in each letter of transmittal and in the certification or authentication of the statements made by the appraiser in such a report.
§ 160-z. Retention of records. 1. A state certified or licensed real estate appraiser shall retain for three years, originals or true copies of all written contracts engaging his or her services for real property appraisal work, and all reports and supporting data assembled and formulated by the appraiser in preparing the reports.
2. Such period for retention of records is applicable to each engagement of the services of the appraiser and shall commence upon the date of the submittal of the appraisal to the client unless, within such three year period, such appraiser is notified that the appraisal or report is involved in litigation, in which event the three year period for the retention of records shall commence upon the date of the final disposition of such litigation.
3. All records required to be maintained under the provisions of this article shall be made available by the state certified or licensed real estate appraiser for inspection and copying by the board on reasonable notice to such appraiser. All such records copied by the board shall be kept confidential, except where disclosure of same is required by law or mandate of a court.
§ 160-aa. Transitional licensing. Consistent with the intent and purpose of this article, and without the disapproval of the appraisal subcommittee of the federal financial institutions examination council, the board may prescribe requirements for transitional licenses which shall expire no later than January first, nineteen hundred ninety-three.
§ 160-bb. Severability. If any clause, sentence, paragraph, section or part of this article shall be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair, or invalidate the remainder thereof, but shall be confined in its operation to the clause, sentence, paragraph, section, or part thereof directly involved in the controversy in which such judgment shall have been rendered.
Section 160. Application.
160-a. Definitions.
160-b. Use of the title "state certified real estate appraiser" or "state licensed real estate appraiser" or "state licensed real estate appraiser assistant".
160-c. State board of real estate appraisal.
160-d. Powers of the board.
160-e. Powers of the department.
160-f. Fees.
160-g. Certification and licensing process.
160-h. License and classes of certification.
160-i. Examination requirement.
160-j. Examination prerequisites.
160-k. Experience requirement.
160-l. Terms of registration.
160-m. Nonresident certification and licensing.
160-n. Nonresident certification and licensing by reciprocity.
160-o. Renewal certificate or license.
160-p. Basis for denial.
160-q. Principal place of business.
160-r. Certificate or license.
160-s. Use of term.
160-t. Continuing education.
160-u. Disciplinary proceedings.
160-v. Due process.
160-w. Hearing and judicial review.
160-x. Classification of services.
160-y. Contingent fees.
160-z. Retention of records.
160-aa. Transitional licensing.
160-bb. Severability.
§ 160. Application. This article applies to the profession of real estate appraisers and the use of the titles "state certified real estate appraiser" and "state licensed real estate appraiser".
§ 160-a. Definitions. As used in this article the following terms shall mean:
1. "Analysis" is a study of real estate or real property other than estimating value.
2. "Appraisal" or "real estate appraisal" means an analysis, opinion or conclusion relating to the nature, quality, value or utility of specified interests in, or aspects of, identified real estate. An appraisal may be classified by subject matter into either a valuation or an analysis.
3. "Appraisal report" means any written communication of an appraisal.
4. "Board" means the state board of real estate appraisal established pursuant to the provisions of section one hundred sixty-c of this article.
5. (a) "Certified appraisal" or "certified appraisal report" means an appraisal or appraisal report given or signed and certified as such by a certified real estate appraiser. When identifying an appraisal or appraisal report as "certified", the state certified real estate appraiser must indicate which type of certification is held. A certified appraisal or appraisal report represents to the public that it meets the appraisal standards defined in this article.
(b) "Licensed appraisal" or "licensed appraisal report" means an appraisal or appraisal report given or signed and authenticated as such by a licensed real estate appraiser. A licensing appraisal or appraisal report represents to the public that it meets the appraisal standards as prescribed by the board.
6. (a) "State certified real estate appraiser" means a person who develops and communicates real estate appraisal and who holds a current, valid certificate issued to him or her for either general or residential real estate under the provisions of this article.
(b) "State licensed real estate appraiser" means a person who develops and communicates real property appraisals and who holds a current valid license issued to him or her for residential real property under the provisions of this article.
(c) "State licensed real estate appraiser assistant" means a person who assists and is supervised by a state certified real estate appraiser and who holds a current valid license issued to him or her under the provisions of this article.
7. "Department" shall mean the department of state.
8."Real estate" means an identified parcel or tract of land, including improvements, if any.
9. "Real property" means one or more defined interests, benefits and rights inherent in the ownership of real estate.
10. "Valuation" is an estimate of the value of real estate or real property.
§ 160-b. Use of the title "state certified real estate appraiser" or "state licensed real estate appraiser" or "state licensed real estate appraiser assistant". 1. Only a person certified under this article shall use the title "state certified real estate appraiser" or licensed under this article shall use the title "state licensed real estate appraiser" or "state licensed real estate appraiser assistant" or assume that title or any title, designation or abbreviation likely to create the impression of certification or license by this state as a real estate appraiser or real estate appraiser assistant. After December thirty-first, nineteen hundred ninety-one, only a person who is certified or licensed pursuant to this article shall describe or refer to any appraisal or other evaluation of real estate located in this state by the term "certified" or "licensed".
2. Nothing in this article shall preclude a person who is not a state certified or licensed real estate appraiser or a licensed real estate appraiser assistant from appraising real estate for compensation.
§ 160-c. State board of real estate appraisal. 1. There is hereby established within the department of state a state board of real estate appraisal which shall consist of nine members, three of whom shall be public members and six of whom shall be real estate appraisers, who shall have and exercise the powers of the board as set forth in section one hundred sixty-d of this article.
2. Three members shall be appointed by the governor, one of whom shall be a public member; two members shall be appointed by the temporary president of the senate, one of whom shall be a real estate appraiser and one of whom shall be a public member; two members shall be appointed by the speaker of the assembly, one of whom shall be a real estate appraiser and one of whom shall be a public member; one member shall be appointed by the minority leader of the senate; one member shall be appointed by the minority leader of the assembly. The term of each member shall be five years.
3. Notwithstanding the foregoing, the members of the first board who are real estate appraisers, need not be certified or licensed under this article prior to their appointment to the board. The board shall appoint an executive secretary who shall be a real estate appraiser.
4. The executive secretary and real estate appraiser members first appointed to the board shall be certified designated members in good standing of a nationally recognized real estate appraisal organization that as of June first, nineteen hundred eighty-nine, required appraisal experience, education and testing in order to become a designated member, in addition to adherence to standards of professional practice in order to retain such designation. Each real estate appraiser member of the board appointed after January first, nineteen hundred ninety-six, must be a state certified real estate appraiser. At least one-half of the appraiser members appointed after January first, nineteen hundred ninety-six, shall hold the general appraisal certificate. Any vacancy occurring on the board shall be filled within sixty days of its occurrence, in the same manner as the member whose vacancy is being filled was appointed. A person appointed to fill a vacancy occurring other than by expiration of a term shall be appointed for the unexpired term of the member he succeeds. No person shall serve as a member of the board for more than two consecutive terms. The public members of the board shall not be engaged in the practice of real estate appraising.
§ 160-d. Powers of the board. 1. The board shall adopt rules and regulations in aid or furtherance of this article and shall have the following powers and duties:
a. To define, with respect to each category of state certified real estate appraisers, state licensed real estate appraisers, and state licensed real estate appraiser assistants, the type of educational experience, appraisal experience and equivalent experience that will meet the statutory requirements of this article, provided, however, that in no event shall the experience, education and examination requirements adopted by the board be less than the minimum criteria established by the Appraisal Subcommittee of the Federal Financial Institutions Examination Council or by the Appraiser Qualification Board of the Appraisal Foundation as referred to in title XI of the Financial Institutions Reform, Recovery and Enforcement Act of 1989;
b. To establish examination specifications consistent with the standards of the Appraisal Qualifications Board of the Appraisal Foundation for state licensed real estate appraiser assistants, state licensed real estate appraisers and each category of state certified real estate appraisers, to provide or procure appropriate examination questions and answers and to establish procedures for grading examinations;
c. To define, with respect to state licensed real estate appraiser assistants, state licensed real estate appraisers and each category of state certified real estate appraisers, the continuing education requirements for the renewal of a license or a certification that will meet the statutory requirements provided in this article;
d. To review the standards for the development and communication of real estate appraisals provided in this article and to adopt regulations explaining and interpreting such standards, provided, however, that such standards must, at a minimum, conform to the uniform standards of professional appraisal as promulgated by the Appraisal Standards Board of the Appraisal Foundation; and
e. To prescribe the scope of practice for state licensed real estate appraiser assistants, state licensed real estate appraisers and each category of state certified real estate appraisers, provided, however, that in no event shall the scope of practice prescribed by the board be less than the scope of practice established by the Appraisal Subcommittee of the Federal Financial Institutions Examination Council or by the Appraiser Qualification Board of the Appraisal Foundation as referred to in title XI of the Financial Institutions Reform, Recovery and Enforcement Act of 1989;
f. To perform such other functions and duties as may be necessary in carrying out the provisions of this article.
2. The board shall promulgate rules and regulations prescribing the form and content of each appraisal report. Such rules and regulations shall include but are not limited to the following requirements:
a. Each appraisal report shall clearly and accurately disclose any extraordinary assumption or limited condition that directly affects an appraisal.
b. Each written appraisal report shall comply with the following specific reporting guidelines:
(1) Identify and describe the real estate being appraised;
(2) Identify the real property being appraised;
(3) Define the opinion that is the purpose of the appraisal and describe the scope of the appraisal;
(4) Set forth the effective date of the opinion and the date of the appraisal report;
(5) Set forth the appraiser's opinion of the highest and best use of the real estate being appraised when such an opinion is necessary and appropriate;
(6) Set forth the appraisal procedure followed, the data considered and the reasoning that supports the analyses, opinions and conclusions;
(7) Set forth all assumptions and limiting conditions that affect the analyses, opinions and conclusions in the appraisal report; and
(8) Set forth any additional information that may be appropriate to show compliance with, and identify permitted departures from, the requirements for the development of appraisals as provided in this article or as established by the board.
3. The board shall establish standards of developing an appraisal. Such standards shall, among other things, state the following guidelines:
a. All state certified or licensed real estate appraisers conducting certified or licensed appraisals, performing appraisal service or issuing an appraisal shall:
(1) Be aware of, understand and correctly employ those recognized appraisal methods and techniques that are necessary to produce a credible analysis, opinion or conclusion;
(2) Not commit a substantial error or omission of commission which results from a significant departure from the recognized appraisal methods and techniques;
(3) Not commit a substantial error or omission of commission that significantly affects an analysis, opinion or conclusion;
(4) Identify the real estate and real property under consideration, define the opinion that is the purpose of the appraisal, consider the scope of the appraisal service and identify the effective date of the opinion;
(5) Identify and consider the appropriate procedures and market data required to perform the appraisal service, where appropriate;
(6) Consider the effect on use and value of the following factors: existing land use regulations, reasonably probable modifications of land use regulations, economic demand, the physical adaptability of the property, neighborhood trends and the highest and best use of the property;
(7) Consider the effect on the property being appraised of anticipated public or private improvements, located on or off the site, to the extent that market actions reflect the anticipated improvements as of the effective appraisal date;
(8) Recognize that land may be appraised as though vacant and avail- able for development and that the appraisal of improvements is based on their actual contributions to the site;
(9) Appraise proposed improvements only after examining and having available for future examination plans, specifications or other documentation sufficient to identify the scope and character of the proposed improvements, evidence indicating the probable time of completion of the proposed improvements, and reasonably clear and appropriate evidence supporting development costs, anticipated earnings, occupancy projections and the anticipated competition at the time of completion; and
(10) Base estimates of anticipated future rent and expenses for the real estate and real property being appraised on reasonably clear and appropriate evidence.
b. In addition to the foregoing, an appraiser shall define the value being considered. If the value estimate is a statement or estimate of market value, he or she shall clearly indicate whether the statement or estimate is the most probable price in terms of cash or financial arrangements equivalent to cash or other terms as may be precisely defined. If an estimate of value is based on submarket financing or financing with unusual conditions or incentives, the terms of such a typical financing shall be clearly set forth, their contributions to, or negative influence on value shall be described and estimated, and the market data supporting the valuation estimate shall be described and explained.
c. For each real property appraisal analysis, opinion or conclusion that contains an estimate of value, a state certified or licensed real estate appraiser shall observe all of the following specific real property appraisal guidelines:
(1) Consider whether an appraised fractional interest, physical segment or partial holding contributes pro rata to the value of the whole;
(2) Identify any personal property or other items that are not real estate but are included with or considered in connection with real estate being appraised and contribute to the total value estimate or conclusion;
(3) Consider and analyze any current agreement of sale, option or listing of the real estate and real property being appraised, if the information is available to the person in the normal course of business;
(4) Consider and analyze any prior sales of the property being appraised that occurred within one year;
(5) When estimating the value of a leased fee estate or a leasehold estate, analyze and consider the effect on value, if any, of the terms and conditions of the lease; and
(6) Give careful consideration to the effect on value, if any, of the assemblage of the various estates or component parts of an estate and refrain from estimating the value of the whole solely by adding together the individual values of its various estates or component parts.
d. In developing a review appraisal, a state certified or licensed real estate appraiser shall observe all of the following specific appraisal guidelines:
(1) Identify the appraisal report being reviewed, the real estate being appraised, the real property being appraised, the effective date of the opinion in the original report, the date of the original report and the date of the review;
(2) Identify the scope of the review process to be conducted, including a determination of whether or not it is appropriate or essential to inspect the appraised property and the data presented;
(3) Form an opinion as to the adequacy and relevance of the data used and the propriety of any adjustment made;
(4) Form an opinion as to whether or not the appraisal methods and techniques used were appropriate and, if not, the reasons for the person's disagreement with the original appraisal; and
(5) Form an opinion as to whether or not the analyses, opinions or conclusions in the report being reviewed are correct or appropriate and, if not, state his or her analyses, opinions or conclusions and his or her reasons for disagreement with the original appraisal.
e. In developing an appraisal for an employer or a client, a state certified or licensed real estate appraiser shall carefully consider and determine whether the appraisal service to be performed is intended to result in an analysis, opinion or conclusion of a disinterested third party and therefore would be classified as an appraisal assignment as defined in subdivision two of section one hundred sixty-x of this article. If the appraisal service to be performed is not intended to result in an analysis, opinion or conclusion of a disinterested third party, the person shall then carefully consider whether or not he or she would be perceived by third parties or the public as acting as a disinterested third party.
f. Prior to entering into an agreement to perform a real property appraisal service, a state certified or licensed real estate appraiser shall carefully consider the knowledge and experience that will be required to complete the appraisal service competently and either:
(1) Have the knowledge and experience necessary to complete the appraisal service competently; or
(2) Immediately disclose the lack of knowledge or experience to the client and take all steps necessary to complete the appraisal service competently.
g. A state certified or licensed real estate appraiser may enter into an agreement to perform a real property appraisal service that calls for something less than, or different from, the work that would otherwise be required by the specific appraisal guidelines, provided that prior to entering into the agreement, he or she has done all of the following:
(1) The state certified or licensed real estate appraiser has determined that the appraisal service to be performed is not so limited in scope that the resulting analysis, opinion or conclusion concerning real estate or real property would tend to mislead or confuse the client, the users of the appraisal report or the public; and
(2) The state certified or licensed real estate appraiser has advised the client that the appraisal service calls for something less than, or different from, the work required by the specific appraisal guidelines, and therefore the appraisal report will include a qualification that reflects the limited or differing scope of the appraisal service.
§ 160-e. Powers of the department. The department shall have the following powers and duties:
1. To receive applications for certification and licensing;
2. To establish the administrative procedures for processing applications for certification and licensing;
3. To approve or disapprove applications for certification or license and issue certificates or licenses;
4. To maintain a registry of the names and addresses of people certified or licensed under this article;
5. To retain records and all application materials submitted to it;
6. To approve courses and seminars for original certification or licensing and continuing education to ensure that the same are consistent with the standards established by the board, or equivalent to those required by such standards;
7. To assist the board in such other manner as the board may request;
8. To establish administrative procedures for disciplinary proceedings conducted pursuant to the provisions of this article; and
9. To suspend and revoke certificates or licenses pursuant to the disciplinary proceedings provided for in this article.
§ 160-f. Fees. 1. The department shall charge and collect fees not in excess of the following:
a. An application fee for certification and licensing of two hundred fifty dollars.
b. An examination fee of fifty dollars.
c. A reexamination fee of fifty dollars.
d. A fee for recertification or renewal of license of two hundred fifty dollars.
e. A delinquent renewal fee of two hundred dollars.
2. Notwithstanding any other law, the department may transmit an annual registry fee as set by the federal appraisal subcommittee in accordance with 12 U.S.C. 3338 (a)(4)(A) from such individuals who perform or seek to perform appraisals in federally related transactions and to transmit a roster of such individuals to the Appraisal Subcommittee of the Federal Financial Institutions Examination Council as required by Title XI of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989.
3. All fees collected under this section shall be paid into the business and licensing services account established pursuant to section ninety-seven-y of the state finance law.
§ 160-g. Certification and licensing process. 1. Applications for original certification and recertification, original license and renewal of license, and examinations shall be made in writing to the department on forms approved by the board.
2. The fees, as fixed by the department pursuant to section one hundred sixty-f of this article, must accompany all applications for original certification and recertification, original license and renewal of license, and examination.
3. At the time of filing an application for certification or license, each applicant shall sign a pledge to comply with the standards set forth in this article and state that he or she understands the types of misconduct for which disciplinary proceedings may be initiated against a state certified real estate appraiser, or a state licensed real estate appraiser, as set forth in this article.
§ 160-h. Licenses and certifications. 1. There shall be one class of license for state licensed real estate appraiser assistants, one class of license for state licensed real estate appraisers and two classes of certification for state certified real estate appraisers. The classes of certification shall be state certified residential real estate appraiser and state certified general real estate appraiser. The board shall prescribe the scope of practice for each license and both classes of certification, provided, however, that in no event shall the scope of practice prescribed by the board be less than the minimum criteria established by the Appraisal Subcommittee of the Federal Financial Institutions Examination Council or by the Appraiser Qualification Board of the Appraisal Foundation as referred to in title XI of the Financial Institutions Reform, Recovery and Enforcement Act of 1989.
2. The application for original certification and recertification or original license and renewal of license, and examination shall specify whether it is for a license or certification being applied for and previously granted. If the application is for a license or renewal, it shall specify for what class of license the application is being made. If the application is for a certification or recertification, it shall specify for what class of certification the application is being made.
§ 160-i. Examination requirement. An original certification as a state certified real estate appraiser or an original license as a state licensed real estate appraiser shall not be issued to any person who has not demonstrated through a written examination process that he or she possesses the following:
1. Appropriate knowledge of technical terms commonly used in or related to real estate appraising, appraisals, report writing and economic concepts applicable to real estate;
2. Understanding of the principles of land economics, real estate appraisal processes, and of problems likely to be encountered in gathering, interpreting and processing of data in carrying out appraisal disciplines;
3. Understanding of the standards for the development and communication of real estate appraisals as provided in this article;
4. Knowledge of theories of depreciation, cost estimating, methods of capitalization, and the mathematics of real estate appraisal that are appropriate for the classification of certificate applied for;
5. Knowledge of other principles and procedures as may be appropriate for the respective classifications;
6. Basic understanding of real estate law; and
7. Understanding of the types of misconduct for which disciplinary proceedings may be initiated against a state certified real estate appraiser or a state licensed real estate appraiser, as set forth in this article.
§ 160-j. Examination prerequisites. 1. Certified general classification. As a prerequisite to taking the examination for certification as a state certified general real estate appraiser, an applicant shall present evidence satisfactory to the board that he or she has fulfilled the minimum education and experience requirements for such certification examination as established by the board, which shall not be less than the minimum criteria established by the Appraiser Qualification Board pursuant to Title XI of the Financial Institution Reform, Recovery and Enforcement Act of 1989.
2. Certified residential classification. As a prerequisite to taking the examination for certification as a state certified residential real estate appraiser, an applicant shall present evidence satisfactory to the board that he or she has fulfilled the minimum education and experience requirements for such certification examination as established by the board, which shall not be less than the minimum criteria established by the Appraiser Qualification Board pursuant to Title XI of the Financial Institution Reform, Recovery and Enforcement Act of 1989.
3. Licensed classification. As a prerequisite to taking the examination for licensing as a state licensed real estate appraiser, an applicant shall present evidence satisfactory to the board that he or she has fulfilled the minimum education and experience requirements for such certification examination as established by the board, which shall not be less than the minimum criteria established by the Appraiser Qualification Board pursuant to Title XI of the Financial Institution Reform, Recovery and Enforcement Act of 1989.
§ 160-k. Experience requirement. 1. An original certification of a state certified real estate appraiser, or an original license of a state licensed real estate appraiser, shall not be issued to any person who does not possess the equivalent of two years of appraisal experience in real property appraisal as defined by the board supported by adequate written reports. Such experience may include fee and staff appraisal, ad valorem tax appraisal, review appraisal, appraisal analysis, highest and best use analysis, feasibility analysis or study, and teaching of appraisal courses at a university, college, or junior college when such courses have a duration of not less than ten weeks.
2. A person who is not a state certified real estate appraiser under this article may assist a state certified real estate appraiser in the preparation of an appraisal, provided that he or she is actively and personally supervised by the state certified real estate appraiser and provided that any appraisal report is reviewed and signed by the supervising state certified appraiser.
3. Each applicant for certification or license shall furnish under oath a detailed listing of the real estate appraisal reports for each year for which experience is claimed by the applicant. Upon request, the applicant shall make available to the department for examination, a sample of appraisal reports which the applicant has prepared in the course of his or her appraisal practice.
4. No state certified real estate appraiser shall supervise more than three licensed real estate appraiser assistants.
§ 160-l. Terms of registration. The term of a certificate or license issued under the authority of this article shall be two years from the date of issuance. The expiration date of the certificate or license shall appear on the certificate or license and no other notice of its expiration need be given to its holder.
§ 160-m. Nonresident certification and licensing. 1. Every applicant for certification or licensing under this article who is not a resident of this state shall submit, with the application for certification or license, an irrevocable consent that service of process upon him or her may be made by delivery of the process to the secretary of state if, in an action against the applicant in a court of this state arising out of the applicant's activities as a state certified real estate appraiser, or a state licensed real estate appraiser, the plaintiff cannot, in the exercise of due diligence, effect personal service upon the applicant.
2. When a nonresident of this state, certified or licensed under the laws of his resident state, the certification and licensing process of which has not been disapproved by the appraisal subcommittee of the federal financial institutions examination council, does not maintain an office for providing appraisal services to clients in this state, and has complied with subdivision one of this section, such nonresident may, upon recommendation of the board, pursuant to such temporary licensing rules or regulations as the board may promulgate, provide certified or licensed appraisals. No temporary certificate or license shall be valid for a duration greater than one year after the date of issue. Any person performing, or seeking to perform, federally related appraisals shall be liable for, and pay, all fees, rated proportionately, which would apply to such person were he or she a resident of this state.
3. A nonresident of this state who has complied with subdivision one of this section, but who does not qualify for treatment under subdivision two of this section, may obtain a certificate as a state certified real estate appraiser or a license as a state licensed real estate appraiser by conformity to all the provisions of this article relating to state certified or licensed real estate appraisers.
4. The board shall recognize on a temporary basis the certification or license of an appraiser issued by another state pursuant to section 1122 of Title XI of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, Pub. Law. No. 101-73, 103 Stat. 183 (1989) (codified at 12 U.S.C. 331 et seq.).
§ 160-n. Nonresident certification and licensing by reciprocity. If, in the determination of the board, the certification or licensing process has not been disapproved by the appraisal subcommittee of the federal financial institutions examination council, an applicant who is certified under the laws of such other state may obtain a certificate as a state certified real estate appraiser or a license as a state licensed real estate appraiser in this state upon such terms and conditions as may be determined by the department.
§ 160-o. Renewal certificate or license. 1. a. To obtain a recertification as a state certified real estate appraiser, or a renewal of license as a state licensed real estate appraiser, the holder of a current, valid certificate or license shall make application and pay the prescribed fee to the department not earlier than one hundred twenty days nor later than thirty days prior to the expiration date of the certificate or license then held. With the application for recertification or renewal of license, the state certified real estate appraiser or state licensed real estate appraiser shall present evidence in the form prescribed by the department of having completed the continuing education requirements, if any, for renewal specified in this article.
b. If the department determines that an applicant has failed to meet the requirements for renewal of certification or licensing through mistake, misunderstanding or circumstances beyond the control of the applicant, the department may extend the term of the certificate or license for a period not to exceed six months, upon payment by the applicant of the prescribed fee for the extension.
c. If the applicant satisfies the requirements for renewal during the extended term of certification or license, the beginning date of the new renewal certificate or license shall be the day following the expiration of the certificate or license previously held by the applicant.
2. If a person fails to renew a certificate as a state certified real estate appraiser, or license as a state licensed real estate appraiser, prior to its expiration or within a period of extension granted by the department pursuant to this article, the person may obtain a recertification or renewal of license by satisfying all of the requirements for renewal and by the payment of a late renewal fee.
3. The license of a state licensed real estate appraiser assistant may be renewed in accordance with the provisions of subdivisions one and two of this section.
§ 160-p. Basis for denial. The department may, in accordance with the provisions of this article relating to hearings, deny the issuance of a certificate as a state certified real estate appraiser, or license as a state licensed real estate appraiser, or license as a state licensed real estate appraiser assistant, to an applicant on any of the grounds enumerated in this article.
§ 160-q. Principal place of business. 1. Each state certified or licensed real estate appraiser and each state licensed real estate appraiser assistant shall advise the department of the address of his or her principal place of business and all other addresses at which he or she is currently engaged in the business of preparing or assisting with the preparation of real property appraisal reports.
2. Change of name or address. Notice in writing in the manner and form prescribed by the department shall be given the department at its offices in Albany within ten days of a change of name or address of the state certified or licensed real estate appraisers or of the state licensed real estate appraiser assistants, except those made on a recertification or renewal application. The fee for filing each change of name or address notice shall be ten dollars.
§ 160-r. Certificate or license. 1. A certificate or license issued under authority of this article shall bear the signature of the executive secretary of the board and a certificate or license number assigned by the department.
2. Each state certified real estate appraiser shall place his or her certificate number, and each licensed real estate appraiser shall place his or her license number adjacent to or immediately below the title "State Certified Residential Real Estate Appraiser", "State Certified General Real Estate Appraiser" or "State Licensed Real Estate Appraiser", respectively, when used in an appraisal report or in a contract or other instrument used by the certificate or license holder in conducting real property appraisal activities.
3. Duplicate licenses or certifications or pocket cards. In the case of loss, destruction, or damage, the secretary of state may, upon submission of a request in such form and manner as the department may prescribe, issue a duplicate license or certification or pocket card upon payment of a fee of ten dollars.
§ 160-s. Use of term. 1. The title "state certified real estate appraiser" may only be used to refer to individuals who hold the certificate, and the title "state licensed real estate appraiser" may only be used to refer to individuals who hold the license, and the title "state licensed real estate appraiser assistant" may only be used to refer to individuals who hold the license, and may not be used following or immediately in conjunction with the name or signature of a firm, partnership, corporation or group; or in such manner that it might be interpreted as referring to a firm, partnership, corporation, group or anyone other than an individual holder of the certificate or license.
2. No certificate or license shall be issued under the provisions of this article to a corporation, partnership, firm or group. This shall not be construed to prevent a state certified or licensed real estate appraiser from signing an appraisal report on behalf of a corporation, partnership, firm or group practice.
§ 160-t. Continuing education. 1. As a prerequisite to recertification or renewal of license, a certified or licensed real estate appraiser shall present evidence satisfactory to the department of having met the continuing education requirements, if any, pursuant to this article.
2. The basic continuing education requirement for recertification or renewal of license shall be the completion by the applicant, during the immediately preceding term of certification or license, of not less than twenty-eight classroom hours of instruction in courses or seminars which have received the approval of the department. Computer based and distance learning courses may be approved by the department so long as providers demonstrate the ability to monitor and verify participation by the real estate appraiser for the specified time periods.
3. In lieu of meeting the requirements of subdivision two of this section an applicant for recertification or renewal of license may satisfy all or part of the requirements by presenting evidence of the following:
a. Completion of an educational program of study determined by the department to be equivalent, for continuing education purposes, to courses approved by the department pursuant to subdivision two of this section; or
b. Participation other than as a student in educational processes and programs approved by the department which relate to real property appraisal theory, practices or techniques, including, but not necessarily limited to, teaching, program development and preparation of textbooks, monographs, articles and other instructional materials.
4. The secretary of state or her duly appointed designee shall adopt regulations upon recommendation by the board for implementations of the provisions of this article to assure that persons renewing their certifications as state certified real estate appraisers or licenses as state licensed real estate appraisers have current knowledge of real property appraisal theories, practices and techniques which will provide a high degree of service and protection to those members of the public with whom they deal in a professional relationship under authority of the certification or license. The regulations shall prescribe the following:
a. Policies and procedures for obtaining departmental approval of courses of instruction pursuant to subdivision two of this section;
b. Standards, policies and procedures to be applied by the department in evaluating applicant's claims of equivalency in accordance with subdivision three of this section;
c. Standards, monitoring methods and systems for recording attendance to be employed by course sponsors as a prerequisite to department approval of courses for credit.
5. In adopting regulations pursuant to paragraph a of subdivision four of this section, the board shall give favorable consideration to courses of instruction, seminars and other real property appraisal educational courses or programs previously or hereafter developed by or under the auspices of professional appraisal organizations and utilized by those associations for purposes of designation or indicating compliance with the continuing education requirements of such organizations.
6. No amendment or repeal of a regulation adopted by the secretary of state or her duly appointed designee pursuant to this section shall operate to deprive a state certified real estate appraiser of credit toward recertification, or a state licensed real estate appraiser of credit toward renewal of license, for any course of instruction completed by the applicant prior to the amendment or repeal of the regulation which would have qualified for continuing education credit under the regulation as it existed prior to the repeal or amendment.
7. A certification as a state certified real estate appraiser, or a license as a state licensed real estate appraiser, that has been revoked as a result of disciplinary action by the department shall not be reinstated unless the applicant presents evidence of completion of the continuing education required by this article. This requirement of evidence of continuing education shall not be imposed upon any applicant for reinstatement who has been required to successfully complete the examination for state certified or licensed real estate appraiser as a condition to reinstatement of certification or license.
8. The board shall prescribe the continuing education requirements for licensed real estate appraiser assistants; provided, however, that in no event shall such requirements be less than the minimum criteria established by the Appraisal Subcommittee of the Federal Financial Institutions Examination Council or by the Appraiser Qualification Board of the Appraisal Foundation as referred to in title XI of the Financial Institutions Reform, Recovery and Enforcement Act of 1989.
§ 160-u. Disciplinary proceedings. 1. The rights of any holder under a state certificate as a state certified real estate appraiser, or a license as a state licensed real estate appraiser, may be revoked or suspended, or the holder of the certification or license may be otherwise disciplined in accordance with the provisions of this article, upon any of the grounds set forth in this section. The department may investigate the actions of a state certified or licensed real estate appraiser, and may revoke or suspend the rights of a certificate or license holder or otherwise discipline a state certified or licensed real estate appraiser for any of the following acts or omissions:
a. Procuring or attempting to procure a certificate or license pursuant to this article by knowingly making a false statement, submitting false information, refusing to provide complete information in response to a question in an application for certification or license or through any form of fraud or misrepresentation;
b. Failing to meet the minimum qualifications established by this article;
c. Paying money other than provided for by this article to any member or employee of the department to procure a certificate or license under this article;
d. A conviction of a felony or a misdemeanor which is substantially related to the qualifications, functions and duties of a person developing real estate appraisals and communicating real estate appraisals to others;
e. An act or omission involving dishonesty, fraud or misrepresentation with the intent to substantially benefit the certificate or license holder or another person or with the intent to substantially injure another person;
f. Violation of any of the standards for the development or communication of real estate appraisals as provided in this article;
g. Failure or refusal without good cause to exercise reasonable diligence in developing an appraisal, preparing an appraisal report or communicating an appraisal;
h. Negligence or incompetence in developing an appraisal, in preparing an appraisal report, or in communicating an appraisal;
i. Willfully disregarding or violating any of the provisions of this article or the regulations of the board for the administration and enforcement of the provisions of this article;
j. Accepting an appraisal assignment as defined in section one hundred sixty-x of this article, when the employment itself is contingent upon the appraiser reporting a predetermined estimate, analysis or opinion, or where the fee to be paid is contingent upon the appraiser reporting a predetermined estimate, analysis or opinion, or where the fee to be paid is contingent upon the opinion, conclusion or valuation reached, or upon the consequences resulting from the appraisal assignment;
k. Violating the confidential nature of governmental records to which he or she gained access through employment or engagement as an appraiser by a governmental agency; or
l. Entry of a final civil judgment against the person on grounds of fraud, misrepresentation or deceit in the making of any appraisal of real property.
2. In a disciplinary proceeding based upon a civil judgment, the certified or licensed real estate appraiser shall be afforded an opportunity to present matters in mitigation and extenuation, but may not collaterally attack the civil judgment.
3. The provisions of subdivisions one and two of this section shall also be applicable to licensed real estate appraiser assistants.
§ 160-v. Due process. 1. Before suspending or revoking any certification or license, the department shall notify the state certified or licensed real estate appraiser or licensed real estate appraiser assistant in writing of any charges made at least twenty days prior to the date set for the hearing and shall afford him or her an opportunity to be heard in person or by counsel.
2. The written notice may be served either personally or sent by certified mail to the last known business address of the appraiser.
3. The department shall have the power to subpoena and issue subpoena duces tecum and to take testimony by deposition, in the same manner as prescribed by law in judicial proceedings in the courts of this state.
§ 160-w. Hearing and judicial review. 1. The hearing on the charges shall be at a time and place prescribed by the department.
2. If the department determined that a state certified or licensed real estate appraiser or licensed real estate appraiser assistant is guilty of a violation of any of the provisions of this article, it shall prepare a finding of fact and recommend that such appraiser be reprimanded or that his or her certification or license be suspended or revoked. The decision and order of the department shall be final.
3. Any final decision or order of the department in certifying or denying certification or in recertification, or in licensing, denying license, or in renewal of a license, under this article or in revoking or suspending such certification or license or imposing any fine or reprimand on the holder of such certification or license shall be subject to review by a proceeding brought under and pursuant to article seventy-eight of the civil practice law and rules at the insistence of the applicant for such certification, the holder of the certificate or license so revoked or suspended or the person fined, reprimanded or otherwise aggrieved.
§ 160-x. Classification of services. 1. A client or employer may retain or employ a state certified or licensed real estate appraiser to act as a disinterested third party in rendering an unbiased estimate of value or analysis. A client or employer may also retain or employ a state certified or licensed real estate appraiser to provide specialized services to facilitate the client's or employer's objectives. In either case, the appraisal and the appraisal report must comply with the provisions of this article.
2. For the purposes of this article, the term "appraisal assignment" means an engagement for which an appraiser is employed or retained to act, or would be perceived by third parties or the public as acting, as a disinterested third party in rendering an unbiased analysis, opinion or conclusion relating to the nature, quality, value or utility of specified interests in, or aspects of, identified real estate.
3. For the purposes of this article, the term "specialized services" means those appraisal services which do not fall within the definition of appraisal assignment. The term "specialized services" may include valuation work and analysis work. Regardless of the intention of the client or employer, if the state certified or licensed real estate appraiser would be perceived by third parties or the public as acting as a disinterested third party in rendering an unbiased analysis, opinion or conclusion, the work is classified as an appraisal assignment and not "specialized services".
§ 160-y. Contingent fees. 1. A state certified or licensed real estate appraiser may not accept a fee for an appraisal assignment as defined in section one hundred sixty-x of this article, that is contingent upon the appraiser reporting a predetermined estimate, analysis, or opinion or is contingent upon the opinion, conclusion or valuation reached, or upon the consequences resulting from the appraisal assignment.
2. A state certified or licensed real estate appraiser who enters into an agreement to perform specialized services, as defined in section one hundred sixty-x of this article, may be paid a fixed fee or a fee that is contingent on the results achieved by the specialized services.
3. If a state certified or licensed real estate appraiser enters into an agreement to perform specialized services for a contingent fee, this fact shall be clearly stated in each written report. In each written report, this fact shall be clearly stated in a prominent location in such report and also in each letter of transmittal and in the certification or authentication of the statements made by the appraiser in such a report.
§ 160-z. Retention of records. 1. A state certified or licensed real estate appraiser shall retain for three years, originals or true copies of all written contracts engaging his or her services for real property appraisal work, and all reports and supporting data assembled and formulated by the appraiser in preparing the reports.
2. Such period for retention of records is applicable to each engagement of the services of the appraiser and shall commence upon the date of the submittal of the appraisal to the client unless, within such three year period, such appraiser is notified that the appraisal or report is involved in litigation, in which event the three year period for the retention of records shall commence upon the date of the final disposition of such litigation.
3. All records required to be maintained under the provisions of this article shall be made available by the state certified or licensed real estate appraiser for inspection and copying by the board on reasonable notice to such appraiser. All such records copied by the board shall be kept confidential, except where disclosure of same is required by law or mandate of a court.
§ 160-aa. Transitional licensing. Consistent with the intent and purpose of this article, and without the disapproval of the appraisal subcommittee of the federal financial institutions examination council, the board may prescribe requirements for transitional licenses which shall expire no later than January first, nineteen hundred ninety-three.
§ 160-bb. Severability. If any clause, sentence, paragraph, section or part of this article shall be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair, or invalidate the remainder thereof, but shall be confined in its operation to the clause, sentence, paragraph, section, or part thereof directly involved in the controversy in which such judgment shall have been rendered.
