New Hampshire Ass'n of REALTORS® v. Hildreth: Banking Commission Reversed

The New Hampshire Association of REALTORS® ("Association") has sought a judicial declaration that the state's banking commissioner did not have the authority to determine whether a banking entity had violated the state's real estate laws.

The Association filed a complaint with the New Hampshire Real Estate Commission alleging that "" ("Website") was acting as an unlicensed real estate broker, in violation of the state's license laws. The Website is a division of East-West Mortgage ("East-West"), and East-West uses the Website as a way to market is mortgage business by allowing sellers to post their home listings for a fee. East-West is a wholly-owned subsidiary of a Massachusetts bank, and East-West holds two licenses from the New Hampshire Banking Department.

East-West fought the allegations by filing a petition with the Banking Department seeking a declaratory ruling that East-West is only subject to the jurisdiction of the Banking Department.

Following this filing, the Real Estate Commission sought a legal opinion from the state's Attorney General as to whether the Banking Department had the authority to resolve the allegations made in the Association's complaint. The Attorney General issued an opinion stating that the Real Estate Commission was responsible for considering whether there were violations of the real estate license laws.

Following the Attorney General's consideration of the issue, the Banking Department issued its own opinion stating that it had exclusive jurisdiction over East-West and it alone determined whether or not East-West had violated the real estate license laws. The Banking Department went on to conclude that East-West's conduct had not violated the state's real estate license laws.

The state Attorney General responded to the Banking Department's opinion. First, the Attorney General directed the Real Estate Commission to proceed with its consideration n of the Association's complaint. Second, it stated that the Banking Department had exceeded its authority in issuing its opinion.

Next, the Association filed a lawsuit seeking a judicial declaration that the Banking Department did not have jurisdiction to consider whether an entity licensed by the Banking Department had violated the state's real estate license laws. As set forth above, the Attorney General (who was responsible for defending the Banking Department) agreed with this conclusion and so an agreed-upon order was entered by the court. In the order, the court found that the Real Estate Commission had exclusive jurisdiction to consider violations of the real estate license laws and the Banking Department had jurisdiction to consider violations the banking laws. Therefore, the court vacated the Banking Department's opinion and stated that the Real Estate Department should begin its proceedings to consider the allegations in the Association's complaint.

New Hampshire Ass'n of REALTORS® v. Hildreth, No. 05-E-0046 (N.H. Super. Ct. Apr. 8, 2005). [Note: When an official reporter citation becomes available for this case, the citation will be updated to reflect this information].

Editor's Note: NAR contributed financial support to the New Hampshire Association of REALTORS®’s efforts at the recommendation of NAR's Legal Action Committee.