Monday, May 21, 2007 Victory in New Hampshire?

Apparently on the heals of an April 19, 2007 ruling by the New Hampshire Real Estate Commission that the New Hampshire Real Estate Practice Act “does not apply to", the defendants in the New Hampshire ZeroBrokerFees litigation – officials of the New Hampshire Real Estate Commission and the state Attorney General – recently filed a motion for summary judgment against plaintiff.

To summarize, the defendants again assert that the New Hampshire Real Estate Practice Act is constitutional on its face and as applied to Plaintiff, and is not the proper subject of a First Amendment challenge. Alternatively, defendants’ assert that the statute should be analyzed under the (permissive) commercial speech standard of review. Defendants maintain that the statute satisfies each element of that standard.

Defendants note the Commission’s finding regarding the inapplicability of the statute to, and add that “the plain, reasonable and common sense reasoning of the REPA shows that Plaintiff, like a newspaper, is exempt from regulation . . . [and] Plaintiffs’ admitted activities demonstrate that it does not act for another to qualify itself as a broker.”

Minutes from the Commission's April 19 meeting were attached to the motion as an Exhibit. They appear to show (starting at the bottom of page 2) that a state attorney petitioned the Commission to rule on the applicability of the Real Estate Practices Act to If these minutes are accurate, approved, and the whole story, the defendants would appear to be correct that that most, if not all, of plaintiff’s allegations are moot in light of the Commission’s apparent finding that is not subject to the Real Estate Practices Act. Sounds like a victory for plaintiff.

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