Bill Text: CA AB2884 | 2017-2018 | Regular Session | Amended
Bill Title: Real estate.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2018-09-06 - Chaptered by Secretary of State - Chapter 285, Statutes of 2018. [AB2884 Detail]
Download: California-2017-AB2884-Amended.html
Amended
IN
Senate
June 27, 2018 |
Assembly Bill | No. 2884 |
Introduced by Assembly Member Irwin |
February 16, 2018 |
LEGISLATIVE COUNSEL'S DIGEST
Existing law requires a notice containing certain information to be filed with the commissioner within a specified period of time after the first transaction and within that same time period if there is any material change in the required information. Existing law requires the broker or the designated officer
or corporate broker to sign the notice.
This bill would require the responsible broker to sign that notice. Because a willful violation of that signature requirement would be a crime, the bill would impose a state-mandated local program.
Digest Key
Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: YESBill Text
The people of the State of California do enact as follows:
SECTION 1.
Section 10001 of the Business and Professions Code is amended to read:10001.
Except as otherwise specified, the definitions in this chapter apply to the provisions of this part only and do not affect any other provisions of this code.SEC. 2.
Section 10010.5 is added to the Business and Professions Code, to read:10010.5.
(a) Nothing in Assembly Bill 1289 of the 2017–18 Regular Session or Assembly Bill 2884 of the 2017–18 Regular Session shall be construed to affect any of the following:SEC. 2.SEC. 3.
Section 10015.1 is added to the Business and Professions Code, to read:10015.1.
“Responsible broker” meansSEC. 3.SEC. 4.
Section 10015.2 is added to the Business and Professions Code, to read:10015.2.
“Manager” means a real estate licensee authorized to perform supervisorial services for a responsible broker.SEC. 4.SEC. 5.
Section 10015.3 is added to the Business and Professions Code, to read:10015.3.
“Broker associate” means a broker retained by a responsible broker who has authority to provide services requiring a real estate license on behalf of the responsible broker.SEC. 5.SEC. 6.
Section 10015.4 is added to the Business and Professions Code, to read:10015.4.
“ResponsibleSEC. 6.SEC. 7.
Section 10015.5 is added to the Business and Professions Code, to read:10015.5.
“Professional identity” includesSEC. 7.SEC. 8.
Section 10016 of the Business and Professions Code is amended to read:10016.
“Real estate salesperson” means a natural person licensed as a salesperson under Chapter 3 of this part and who, for a compensation or in expectation of a compensation, is retained by a real estate broker to do one or more of the acts set forth in Sections 10131, 10131.1, 10131.2, 10131.3, 10131.4, and 10131.6.SEC. 8.SEC. 9.
Section 10018.01 is added to the Business and Professions Code, to read:10018.01.
“Retained” means the relationship between a broker and a licensee who is either an independent contractor affiliated with, or an employee of, a broker to perform activities that require a license and are performed under a broker’s supervision.SEC. 9.SEC. 10.
Section 10018.02 is added to the Business and Professions Code, to read:10018.02.
“Seller” means a transferor in a real propertySEC. 10.SEC. 11.
Section 10018.03 is added to the Business and Professions Code, to read:10018.03.
“ListingSEC. 11.SEC. 12.
Section 10018.04 is added to the Business and Professions Code, to read:10018.04.
“Seller’sSEC. 12.SEC. 13.
Section 10018.05 is added to the Business and Professions Code, to read:10018.05.
“Buyer” means a transferee in a real property transaction, and includes a person who executes an offer to purchase real property from a seller through a licensee, whether or not a transfer results, or who seeks the services of a licensee in more than a casual, transitory, or preliminary manner, with the object of entering into a real property transaction. “Buyer” includes a purchaser, vendee, or lessee of real property.SEC. 13.SEC. 14.
Section 10018.06 is added to the Business and Professions Code, to read:10018.06.
“Buyer’sSEC. 14.SEC. 15.
Section 10018.07 is added to the Business and Professions Code, to read:10018.07.
“Real property” means any estate specified in (1) or (2) of Section 761 of the Civil Code in property, and includes (a) single-family residential property, (b) multiunit residential property with more than four dwelling units, (c) commercial real property, (d) vacant land, (e) a ground lease coupled with improvements, or (f) a manufactured home as defined in Section 18007 of the Health and Safety Code or a mobilehome as defined in Section 18008 of the Health and Safety Code.SEC. 15.SEC. 16.
Section 10018.08 is added to the Business and Professions Code, to read:10018.08.
SEC. 16.SEC. 17.
Section 10018.09 is added to the Business and Professions Code, to read:10018.09.
“Commercial real property” means all real propertySEC. 17.SEC. 18.
Section 10018.10 is added to the Business and Professions Code, to read:10018.10.
SEC. 18.SEC. 19.
Section 10018.11 is added to the Business and Professions Code, to read:10018.11.
“Dual“Dual licensee” means a real estate salesperson or broker associate who individually provides services requiring a real estate license for both a seller and a buyer at the same time in the same transaction.
SEC. 20.
Section 10018.13 is added to the Business and Professions Code, to read:10018.13.
“Appraiser” means a person licensed or certified under Part 3 (commencing with Section 11300).SEC. 21.
Section 10018.14 is added to the Business and Professions Code, to read:10018.14.
“Listing agreement” means a written contract between a seller of real property or a business opportunity and a real estate broker by which the broker has been authorized to sell the real property or find or obtain a buyer, including rendering otherSEC. 22.
Section 10018.15 is added to the Business and Professions Code, to read:10018.15.
“Exclusive right to sellSEC. 23.
Section 10018.16 is added to the Business and Professions Code, to read:10018.16.
“Seller reservedSEC. 24.
Section 10018.17 is added to the Business and Professions Code, to read:10018.17.
“Open(a)The term “advance fee,” as used in this part, is a fee, regardless of the form, that is claimed, demanded, charged, received, or collected by a licensee for services requiring a license, or for a listing agreement, as that term is defined in Section 10018.14, or a promotional listing before fully completing the service the licensee contracted to perform or represented would be performed. Neither an advance fee nor the services to be
performed shall be separated or divided into components for the purpose of avoiding the application of this division.
(b)For the purposes of this section, the term “advance fee” does not include:
(1)“Security” as that term is used in Section 1950.5 of the Civil Code.
(2)A “screening fee” as that term is used in Section 1950.6 of the Civil Code.
(3)A fee that is claimed, demanded, charged, received, or collected for the purpose of advertising the sale, lease, or exchange of real estate, or a business opportunity, in a newspaper of general circulation, any other written publication, or through electronic media comparable to any type of
written publication, provided that the electronic media or the publication is not under the control or ownership of the broker.
(4)A fee earned for a specific service under a “limited service” contract. For purposes of this section, a “limited service” contract is a written agreement for real estate services described in subdivision (a), (b), or (c) of Section 10131, and pursuant to which such services are promoted, advertised, or presented as stand-alone services, to be performed on a task-by-task basis, and for which compensation is received as each separate, contracted-for task is completed. To qualify for this exclusion, all services performed pursuant to the contract must be described in subdivision (a), (b), or (c) of Section 10131.
(5)A fee approved by the department
pursuant to Section 10085.
(c)A contract between a real estate broker and a principal that requires payment of a commission to the broker after the contract is fully performed does not represent an agreement for an advance fee.
(d)This section does not exempt from regulation the charging or collecting of a fee under Section 1950.5 or 1950.6 of the Civil Code, but instead regulates fees that are not subject to those sections.
SEC. 26.SEC. 25.
Section 10027 of the Business and Professions Code is amended to read:10027.
The termSEC. 27.SEC. 26.
Section 10050 of the Business and Professions Code, as
added by Section 10 of Chapter 828 of the Statutes of 2017, is amended to read:10050.
(a) (1) There is in the Business, Consumer Services, and Housing Agency a Department of Real Estate, the chief officer of which department is named the Real Estate Commissioner.SEC. 28.SEC. 27.
Section 10131 of the Business and Professions Code is amended to read:10131.
A real estate broker within the meaning of this part is a person who, for a compensation or in expectation of a compensation, regardless of the form or time of payment, does or negotiates to do one or more of the following acts for another or others:SEC. 29.SEC. 28.
Section 10132 of the Business and Professions Code is repealed.SEC. 30.SEC. 29.
Section 10133.1 of the Business and Professions Code,
as added by Section 2 of Chapter 475 of the Statutes of 2017, is amended to read:10133.1.
(a) Subdivisions (d) and (e) of Section 10131, Section 10131.1, Article 5 (commencing with Section 10230), and Article 7 (commencing with Section 10240) of this code and Section 1695.13 of the Civil Code do not apply to any of the following:SEC. 30.
Section 10133.2 of the Business and Professions Code is amended to read:10133.2.
The provisions of Sections 10016, 10131, 10131.1,SEC. 31.
Section 10137 of the Business and Professions Code is amended to read:10137.
It is unlawful for any licensed real estate broker to retain, compensate, directly or indirectly, any person for performing any of the acts within the scope of this chapter who is not a licensed real estate broker, or a real estate salesperson licensed under the responsible broker retaining or compensating him or her, or to retain or compensate, directly or indirectly, any licensee for engaging in any activity for which a mortgage loan originator license endorsement is required, if that licensee does not hold a mortgage loan originator license endorsement; provided, however, that a licensed real estate broker may pay a commission to a broker of another state.SEC. 32.
Section 10140.6 of the Business and Professions Code is amended to read:10140.6.
(a) A real estate licensee shall not publish, circulate, distribute, or cause to be published, circulated, or distributed in any newspaper or periodical, or by mail, any matter pertaining to any activity for which a real estate license is required that does not contain a designation disclosing that he or she is performing acts for which a real estate license is required.SEC. 33.
Section 10142 of the Business and Professions Code is amended to read:10142.
When a licensee prepares or has prepared an agreementSEC. 34.
Section 10143.5 of the Business and Professions Code is amended to read:10143.5.
Any real estate broker who assists another or others, or whose real estate salespersons assist another or others, for a compensation, in filing an application for the purchase or lease of, or in locating or entering upon, lands owned by the state or federal government shall report to the commissioner the names and addresses of all persons the broker or his or her salespersons have assisted in filing applications for land owned by the state or federal government and the amount of compensation received from those persons. The report shall be filed quarterly within 10 days after the end of each calendar quarter.SEC. 35.
Section 10144 of the Business and Professions Code is amended to read:10144.
The commissioner may prescribe by regulation the information which shall be contained in contracts or other agreements by a real estate licensee to assist another or others in filing an application for the purchase or lease of, or in locating or entering upon, lands owned by the state or federal government, including, but not limited to, information with regard to the services agreed to be performed and information with regard to the hazards which may prevent the person to be assisted in filing an application with the state or federal government ever receiving any state or federal land under the application.SEC. 36.
Section 10158 of the Business and Professions Code is amended to read:10158.
When a real estate license is issued to a corporation, if it desires any of its officers other than the officer designated by it pursuant to Section 10211, to act under its license as a real estate broker, it shall procure an additional license to retain each of those additional officers. In the event of death or incapacity of a sole designated broker-officer, a corporation may operateSEC. 37.
Section 10159 of the Business and Professions Code is amended to read:10159.
Each officer of a corporation through whom it is licensed to act as a real estate broker need not be a licensed real estate broker, but if not, isSEC. 38.
Section 10159.6 of the Business and Professions Code is amended to read:10159.6.
All of the following apply to use of a team name, as defined in paragraph (3) of subdivision (a) of Section 10159.7:SEC. 39.
Section 10159.7 of the Business and Professions Code is amended to read:10159.7.
(a) For the purposes of this article, the following definitions shall apply:SEC. 40.
Section 10160 of the Business and Professions Code is repealed.SEC. 41.
Section 10161.8 of the Business and Professions Code is repealed.SEC. 42.
Section 10161.8 is added to the Business and Professions Code, to read:10161.8.
(a) The commissioner shall specify the manner in which a responsible broker shall provide notice to the commissioner of an affiliation with a real estate licensee or by which a real estate licensee shall provide notice of a change of address or affiliation.SEC. 43.
Section 10164 of the Business and Professions Code is amended to read:10164.
(a) A responsible broker or corporate designated broker officer may appoint a licensee as a manager of a branch office or division of the responsible broker’s or corporate designated broker officer’s real estate business and delegate to the appointed manager the responsibility to oversee day-to-day operations, supervise the licensed activities of licensees, and supervise clerical staff employed in the branch office or division.(a)A loan processor or underwriter who does not represent to the public, through advertising or other means of communicating or providing information, including the use of business cards, stationery, brochures, signs, rate lists, or other promotional items, that the individual can or will perform any of the activities of a mortgage loan originator shall not be required to obtain a license endorsement as a mortgage loan originator.
(b)An individual engaging solely in loan processor or underwriter activities shall not represent to the public, through advertising or other means of communicating or providing information including the use of business cards, stationery, brochures,
signs, rate lists, or other promotional items, that the individual can or will perform any of the activities of a mortgage loan originator.
(c)An independent contractor who is retained by a mortgage loan originator may not engage in the activities of a loan processor or underwriter for a residential mortgage loan unless the independent contractor loan processor or underwriter obtains and maintains an endorsement as a mortgage loan originator under this article. Each independent contractor loan processor or underwriter who obtains and maintains an endorsement as a mortgage loan originator under this article shall have and maintain a valid unique identifier issued by the Nationwide Mortgage Licensing System and Registry.
The definitions used in this section shall govern the construction and terms as used in this article:
(a)“Prepaid rental listing service” means the business of supplying prospective tenants with promotional listings of residential real properties for tenancy, by publication or otherwise, pursuant to an arrangement under which the prospective tenants are required to pay an advance or contemporaneous fee (1) specifically to obtain promotional listings or (2) to purchase any other product or service in order to obtain promotional listings, but which does not otherwise involve the negotiation of rentals by the person conducting the service. “Prepaid rental listing service” does
not include the business of providing roommate referral information designed to assist persons in locating a roommate who meets various selection criteria related to the prospective roommate’s personal traits, characteristics, habits, or preferences, and selection criteria related to the residential real property occupied by the prospective roommate.
(b)“Licensee” means a person licensed to conduct a prepaid rental listing service or a person engaged in the business of a prepaid rental listing service under a real estate broker license.
(c)“Location” means the place, other than the main or branch office of a real estate broker, where a prepaid rental listing service business is conducted.
(d)“Designated agent” means
the person who is in charge of the business of a prepaid rental listing service at a given location.
(e)“Fee” means the charge required by a licensee (1) to obtain promotional listings of residential real properties for tenancy or (2) to purchase any other product or service in order to obtain promotional listings.
(f)“Service charge” means the amount of the fee that a licensee may retain if a prospective tenant finds housing through a source other than the promotional listings supplied by the licensee.
SEC. 46.SEC. 44.
Section 10176 of the Business and Professions Code is amended to read:10176.
The commissioner may, upon his or her own motion, and shall, upon the verified complaint in writing of any person, investigate the actions of any person engaged in the business or acting in the capacity of a real estate licensee within this state, and he or she may temporarily suspend or permanently revoke a real estate license at any time where the licensee, while a real estate licensee, in performing or attempting to perform any of the acts within the scope of this chapter has been guilty of any of the following:SEC. 47.SEC. 45.
Section 10177 of the Business and Professions Code is amended to read:10177.
The commissioner may suspend or revoke the license of a real estate licensee, delay the renewal of a license of a real estate licensee, or deny the issuance of a license to an applicant, who has done any of the following, or may suspend or revoke the license of a corporation, delay the renewal of a license of a corporation, or deny the issuance of a license to a corporation, if an officer, director, or person owning or controlling 10 percent or more of the corporation’s stock has done any of the following:(r)Failure to surrender a license that was issued in error or by mistake.
SEC. 48.SEC. 46.
Section 10178 of the Business and Professions Code is amended to read:10178.
When any real estate salesperson is discharged by his or her responsible broker for a violation of any of the provisions of this article prescribing a ground for disciplinary action, a certified written statement of the facts with reference thereto shall be filed forthwith with the commissioner by the responsible broker, and if the responsible broker fails to notify the commissioner as required by this section, the commissioner may temporarily suspend or permanently revoke the real estate license of the responsible broker, in accordance with the provisions of this part relating to hearings.SEC. 49.SEC. 47.
Section 10179 of the Business and Professions Code is amended to read:10179.
No violation of any of the provisions of this part relating to real estate or of Chapter 1 (commencing with Section 11000) of Part 2 of this division by any real estate salesperson or employee of any licensed real estate broker shall cause the revocation or suspension of the license of theSEC. 50.SEC. 48.
Section 10186.2 of the Business and Professions Code is amended to read:10186.2.
(a) (1) A licensee shall report any of the following to the department:SEC. 51.SEC. 49.
Section 10232.3 of the Business and Professions Code is amended to read:10232.3.
(a) Any transaction that involves the sale of or offer to sell a note secured directly by an interest in one or more parcels of real property or the sale of an undivided interest in a note secured directly by one or more parcels of real property shall adhere to all of the following:(A) | Single-family residence, owner occupied
........................
| 80% |
(B) | Single-family residence, not owner occupied
........................
| 75% |
(C) | Commercial properties and income-producing properties not | |
described in (B) or (E) ........................ | 65% | |
(D) | Single-family residentially zoned lot or parcel that has installed offsite improvements including drainage, curbs, gutters, sidewalks, paved roads, and utilities as mandated by the political subdivision having jurisdiction over the lot or parcel
........................
| 65% |
(E) | Land that produces income from crops, timber, or minerals
........................
| 60% |
(F) | Land that is not income producing but has been zoned for (and if required, approved for subdivision as) commercial or residential development
........................
| 50% |
(G) | Other real property
........................
| 35% |
“Transaction
Identifier: | |||
Name of Purchaser: | Date: | ||
Check either one of the following, if true: | |||
( )My investment in the transaction does not exceed 10% of my net worth, | |||
exclusive of home, furnishings, and automobiles. | |||
( )My investment in the transaction does not exceed 10% of my adjusted | |||
gross income for federal income tax purposes for my last tax year or, | |||
in the alternative, as estimated for the current year. | |||
Signature” |
SEC. 52.SEC. 50.
Section 10238 of the Business and Professions Code is amended to read:10238.
(a) A notice in the following form and containing the following information shall be filed with the commissioner within 30 days after the first transaction and within 30 days of any material change in the information required in the notice:TO: | Real Estate Commissioner Mortgage Loan Section 1651 Exposition Boulevard Sacramento, CA 95815 | |
This notice is filed pursuant to Sections 10237 and 10238 of the Business and Professions
Code. | ||
( ) Original Notice( ) Amended Notice | ||
1. | Name of the | |
2. | Broker license identification number: | |
3. | List the month the fiscal year ends: | |
4. | Broker’s telephone number: | |
5. | Firm name (if different from “1”): | |
6. | Street address (main location): | |
# and StreetCityStateZIP Code
_____
| ||
7. | Mailing address (if different from “6”): | |
8. | Servicing agent: Identify by name, address, and telephone number the person or entity who will act as the servicing agent in transactions pursuant to Section 10237 (including the undersigned Broker if that is the case): | |
9. | Total number of multilender notes arranged: | |
10. | Total number of interests sold to investors on the multilender’s notes: ______ | |
11. | Inspection of trust account (before answering this question, review the provisions of paragraph (3) of subdivision (k) of Section 10238). | |
CHECK ONLY ONE OF THE
FOLLOWING: | ||
( ) | The undersigned Broker is (or expects to be) required to file reports of inspection of its trust account(s) with the Real Estate Commissioner pursuant to paragraph (3) of subdivision (k) of Section 10238. | |
Amount of Multilender Payments Collected Last Fiscal Quarter: | ||
Total Number of Investors Due Payments Last Fiscal Quarter: | ||
( ) | The undersigned Broker is NOT (or does NOT expect to be) required to file reports of inspection of its trust account(s) with the Real Estate Commissioner pursuant to paragraph (3) of subdivision (k) of Section 10238. | |
12. | Signature. The contents of this notice are true and correct. | |
Date | Type Name of Broker | |
Signature of | ||
Type Name of Person(s) Signing This Notice |
Transaction Identifier: | |
Name of Purchaser: Date: | |
Check either one of the following, if true: | |
( ) | My investment in the transaction does not exceed 10% of my net worth, exclusive of home, furnishings, and automobiles. |
( ) | My investment in the transaction does not exceed 10% of my adjusted gross income for federal income tax purposes for my last tax year or, in the alternative, as estimated for the current year. |
Signature |
(A) | Single-family residence, owner occupied
........................
| 80% |
(B) | Single-family residence, not owner occupied
........................
| 75% |
(C) | Commercial properties and income-producing properties not described in (B) or (E)
........................
| 65% |
(D) | Single-family residentially zoned lot or parcel that has installed offsite improvements including drainage, curbs, gutters, sidewalks, paved roads, and
utilities as mandated by the political subdivision having jurisdiction over the lot or parcel
........................
| 65% |
(E) | Land that produces income from crops, timber, or minerals
........................
| 60% |
(F) | Land that is not income producing but has been zoned for (and if required, approved for subdivision as) commercial or residential development
........................
| 50% |
(G) | Other real property
........................
| 35% |
SEC. 53.SEC. 51.
Section 10243 of the Business and Professions Code is amended to read:10243.
If the loan is not consummated due to the failure of the borrower to disclose the outstanding liens of record or the correct current vested title which is material to the loan upon the real property as provided by subdivision (c) of Section 10241, the borrower shall be liable for the costs and expenses provided in subdivision (a) of Section 10241 that have been paid or incurred and shall be liable for the payment of one-half of the charges provided in subdivision (b) of Section 10241. An exclusive agreement authorizing or retaining a licensee to negotiate a loan secured directly or collaterally by a lien on real property shall be limited to a term of not more than 45 days.SEC. 54.SEC. 52.
Section 10509 of the Business and Professions Code is amended to read:10509.
(a) It is unlawful for a mineral, oil, and gas broker or a real estate broker to compensate, directly or indirectly, any person who is not a mineral, oil, and gas broker or a licensed real estate salesperson retained by the real estate broker for performing any acts for which a mineral, oil, and gas broker license is required.SEC. 55.SEC. 53.
Section 10561 of the Business and Professions Code is amended to read:10561.
The commissioner may, upon his or her own motion, and shall, upon the verified complaint in writing of any person, investigate the actions of any person engaged in the business or acting in the capacity of a mineral, oil, and gas licensee, within this state, and he or she may temporarily suspend or permanently revoke a mineral, oil, and gas license at any time if the licensee, while a mineral, oil, and gas licensee, in performing or attempting to perform any of the acts within the scope of this chapter, has been guilty of any of the following:SEC. 56.SEC. 54.
Section 11212 of the Business and Professions Code is amended to read:11212.
As used in this chapter, the following definitions apply:SEC. 57.SEC. 55.
Section 11267 of the Business and Professions Code is amended to read:11267.
(a) The time-share instruments shall require the use of a managing entity for the time-share plan or component site pursuant to a written management agreement that shall include all of the following provisions:Nothing in this act or Assembly Bill 1289 of the 2017–18 Regular Session shall be construed to affect any agency relationships in a real estate transaction or a fiduciary’s responsibilities and obligations to disclose information relative to a real estate transaction pursuant to Article 6 (commencing with Section 1086) of Chapter 1 of Title 4 of Part 4 of Division 2 of, Article 1.5 (commencing with Section 1102) of Chapter 2 of Title 4 of Part 4 of Division 2 of, or Article 2 (commencing with Section 2079) of Chapter 3 of Title 6 of Part 4 of Division 3 of, the Civil Code.