MS 2023-07-R-Praytor-July-20-2023-Mississippi-Real-Estate-Commissions-Authority July 20, 2023

Did SB 2647 strip the Mississippi Real Estate Commission of its power to discipline licensees who violate Section 73-35-21?

Short answer: No. The new Section 73-35-21(6), added by SB 2647 in 2023, limits the Mississippi Real Estate Commission's rulemaking and administrative interpretation, but does not repeal its power to refuse, revoke, or suspend a license for the specific violations listed in Section 73-35-21(1)(a) through (n). MREC may still discipline licensees for those statutory violations.

Disclaimer: This is an official Mississippi Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Mississippi attorney for advice on your specific situation.

Subject

Mississippi Real Estate Commission's Authority After SB 2647

Recipient

Robert E. Praytor, Administrator, Mississippi Real Estate Commission

Plain-English summary

In March 2023, the Mississippi Legislature added Subsection (6) to Section 73-35-21 (the statute that lists the conduct for which the Mississippi Real Estate Commission can revoke or suspend a real estate license). The new subsection says MREC "shall not promulgate any rule or regulation, nor make any administrative or other interpretation, whereby any real estate licensee may be held responsible or subject to discipline or other actions" relating to that section or to the seller's property disclosure requirements at Sections 89-1-501 through 89-1-523.

MREC's administrator asked: did Subsection (6) strip MREC of the power to discipline licensees for violations of Subsection (1)? The AG's answer is no. Subsection (6) limits MREC's rulemaking and administrative interpretation, blocking it from creating its own additional discipline-triggering grounds beyond what the legislature wrote. But the Subsection (1) list of disciplinable acts (a through n) remains in force, and MREC can still refuse, suspend, or revoke a license when a licensee commits one of those statutory violations. The AG also clarified that MREC can still make the factual determinations needed to apply Subsection (1); making those findings does not violate Subsection (6).

What this means for you

Real estate licensees and brokers

You can still be disciplined by MREC for any of the violations listed in Section 73-35-21(1)(a) through (n). Those grounds were not repealed. What MREC cannot do is invent new grounds through rulemaking or interpretation, especially around the seller's property disclosure rules. If MREC takes action against you, it must point to a statutory violation, not just a regulation it made up.

MREC investigators and staff

You can continue to enforce the existing statutory grounds. Document the specific Subsection (1) provision the licensee allegedly violated; do not lean on a regulatory interpretation that does not directly track the statutory text. Subsection (6) is a guardrail against creative rulemaking, not against the statute itself.

Real estate attorneys

When defending or prosecuting MREC actions, the post-SB 2647 framework requires close attention to whether the alleged misconduct falls squarely in Subsection (1)'s enumerated grounds. Any disciplinary theory that depends on an MREC rule layered on top of the seller-disclosure statutes is now vulnerable to a Subsection (6) challenge.

Property buyers and sellers

The seller-property-disclosure statutes (Sections 89-1-501 through 89-1-523) still operate. SB 2647 limited MREC's rulemaking around those statutes but did not change the statutes themselves. The regulatory landscape for disclosure has narrowed in scope, not in legal effect.

Legislators

The 2023 amendment is a carve-out limiting administrative discretion, not a repeal of the underlying disciplinary scheme. Future amendments could either expand or narrow it further.

Background and statutory framework

Section 73-35-21(1) gives MREC the "full power to refuse a license for cause or to revoke or suspend a license where it has been obtained by false or fraudulent representation, or where the licensee in performing or attempting to perform any of the acts mentioned herein, is deemed to be guilty of" the listed acts in Subsections (a) through (n). These cover misrepresentation, false advertising, breach of fiduciary duty, mishandling of trust funds, and similar grounds.

SB 2647 (effective March 14, 2023) added Subsection (6): "The Mississippi Real Estate Commission shall not promulgate any rule or regulation, nor make any administrative or other interpretation, whereby any real estate licensee may be held responsible or subject to discipline or other actions by the commission relating to the provisions of this section or the information required to be disclosed by Sections 89-1-501 through 89-1-523 or delivery of information required to be disclosed by Sections 89-1-501 through 89-1-523."

The AG read these provisions as complementary. Subsection (1) keeps its statutory teeth. Subsection (6) limits MREC's regulatory authority over the same subject matter. MREC's ability to make factual findings about whether conduct fits Subsection (1) (a fact-finding role) is preserved; the limit is on MREC creating new substantive grounds via regulation.

Citations

Miss. Code Ann. § 73-35-21(1) (real estate license discipline grounds, subsections (a)-(n))
Miss. Code Ann. § 73-35-21(6) (limit on MREC rulemaking and interpretation)
Miss. Code Ann. §§ 89-1-501 through 89-1-523 (seller property disclosure requirements)
2023 Mississippi Senate Bill 2647 (effective March 14, 2023)

Source

Original opinion text

July 20, 2023

Robert E. Praytor
Administrator, Mississippi Real Estate Commission
Post Office Box 12685
Jackson, Mississippi 39236
Re:

Mississippi Real Estate Commission's Authority

Dear Mr. Praytor:
The Office of the Attorney General has received your request for an official opinion.
Question Presented

Does the language of Mississippi Code Annotated Section 73-35-21(6) remove the Mississippi
Real Estate Commission's ("MREC") authority to discipline or take other action against a real
estate licensee for the specific, statutorily described violations enumerated in Section 73-35-21(1)(a)-(n)?
Brief Response
Section 73-35-21(6) does not repeal the MREC's power to refuse, suspend, or revoke a license
under Section 73-35-21(1) for the acts listed in Subsections (1)(a)-(n).
Applicable Law and Discussion
Section 73-35-21(1) grants the MREC the "full power to refuse a license for cause or to revoke or
suspend a license where it has been obtained by false or fraudulent representation, or where the
licensee in performing or attempting to perform any of the acts mentioned herein, is deemed to be
guilty of" any of the prescribed violations in Subsections (a) through (n). Effective March 14,
2023, the following language was added to Section 73-35-21 as Subsection (6):
The Mississippi Real Estate Commission shall not promulgate any rule or
regulation, nor make any administrative or other interpretation, whereby any real
estate licensee may be held responsible or subject to discipline or other actions by
the commission relating to the provisions of this section or the information required
to be disclosed by Sections 89-1-501 through 89-1-523 or delivery of information
required to be disclosed by Sections 89-1-501 through 89-1-523.
(emphasis added).
Subsection (6) does not repeal the MREC's power to refuse, suspend, or revoke a license under
Subsection (1) for the acts listed therein. Rather, it prevents the MREC from promulgating its own
rules and regulations in contradiction of the statutory amendments put forth by 2023 Mississippi
Senate Bill No. 2647. Subsection (6) likewise prevents the MREC from making any administrative
or other interpretation to hold any real estate licensee responsible or subject to discipline or other
action by the commission relating to either the provisions of Section 73-35-21 or the disclosures
and subsequent delivery in Sections 89-1-501 through 89-1-523. Accordingly, it is the opinion of
this office that the MREC may still refuse, revoke, or suspend licenses for the specified acts in
Section 73-35-21(1). Finally, we note that the factual determination necessary for the MREC to
determine whether a licensee's conduct fits within the purview of the acts set forth in Subsection
(1) neither violates nor is prohibited by Subsection (6).
If this office may be of any further assistance to you, please do not hesitate to contact us.
Sincerely,
LYNN FITCH, ATTORNEY GENERAL
By:

/s/ Abigail C. Overby
Abigail C. Overby
Special Assistant Attorney General