Bill Text: CA AB749 | 2017-2018 | Regular Session | Amended
Bill Title: Real estate.
Sponsorship: Partisan Bill (Democrat 1)
Status: (Failed) 2018-02-01 - From committee: Filed with the Chief Clerk pursuant to Joint Rule 56. [AB749 Detail]
Download: California-2017-AB749-Amended.html
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Amended
IN
Assembly
January 03, 2018 |
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Amended
IN
Assembly
April 17, 2017 |
CALIFORNIA LEGISLATURE—
2017–2018 REGULAR SESSION
| Assembly Bill | No. 749 |
| Introduced by Assembly Member Irwin |
February 15, 2017 |
An act to amend Sections 10001, 10016, 10026, 10027, 10050, 10131, 10133.1, 10137, 10140.6, 10142, 10143.5, 10144, 10158, 10159, 10159.6, 10159.7, 10164, 10166.03, 10167, 10176, 10177, 10178, 10179, 10186.2, 10232.3, 10238, 10243, 10509, 10561, 11212, and 11267 of, to add Sections 10015.1, 10015.2, 10015.3, 10015.4, 10015.5, 10018.01, 10018.02, 10018.03, 10018.04, 10018.05, 10018.06, 10018.07, 10018.08, 10018.09, 10018.10, 10018.11, 10018.12, 10018.13, 10018.14, 10018.15, 10018.16, and 10018.17 to, to repeal Sections 10132 and 10160 of, and to repeal and add Section 10161.8 of, the Business and Professions Code, relating to real estate.
LEGISLATIVE COUNSEL'S DIGEST
AB 749, as amended, Irwin.
Real Estate. estate.
(1) Existing law, the Real Estate Law, provides for the licensure and regulation of real estate brokers and salespersons by the Real Estate Commissioner, the chief officer of the Bureau of Real Estate. A willful violation of the law and other related real estate provisions is a crime.
Under existing law, a real estate broker 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 specified acts for another or others, including soliciting or obtaining listings of real property, as specified. Under existing law, a real estate salesperson is a natural person who, for a compensation or in expectation of a compensation, is employed by a licensed real estate broker to do specified acts. Existing law generally describes the relationship between
a real estate broker and a real estate licensee, which includes brokers and salespersons, as an employment relationship.
This bill would include, within those acts for real estate brokers, soliciting or obtaining a promotional listing or listing agreement for that specified real property. The bill would also recast and redefine the term “salesperson” as a person who is retained by a licensed real estate broker. For purposes of these relationships, the bill would define the term “retained” to mean the relationship between a broker and a real estate licencee licensee who is an independent contractor affiliated with, or an employee of, a broker to perform certain real estate activities subject to a broker’s supervision. The bill would also define various other terms to describe
the relationships between real estate brokers and salespersons and the parties involved in the sale of real estate transactions, including, but not limited to, seller, buyer, seller’s licensee, buyer’s licensee, dual broker, and dual licensee.
Under existing law, whenever a real estate salesperson enters the employ of a real estate broker, the broker is required to immediately notify the commissioner in writing of specified changes to employment.
This bill would require a responsible broker to provide notice to the commissioner whenever a real estate salesperson or real estate broker affiliates with, or is retained by, the responsible broker or an affiliation with a real estate licensee is terminated. The bill would require a real estate broker that affiliates with a responsible broker to also provide notice to the commissioner of the
affiliation, and would require a real estate licensee to immediately notify provide notice to the commissioner whenever a licensee affiliates or is retained by a real estate broker, if that agreement is terminated, or if the licensee acquires a new business address. The bill would also require the commissioner to specify the manner in which these notices are to be provided. Because a willful violation of these reporting requirements would be a crime, the bill would impose a state-mandated local program.
Under existing law, a real estate broker is defined to include
a person who leases or rents or offers to lease or rent, or places for rent, or solicits listings of places for rent, or solicits for prospective tenants, or negotiates the sale, purchase, or exchanges of leases on real property, or on a business opportunity, or collects rents from real property, or improvements thereon, or from business opportunities. Existing law provides that this definition does not apply to the manager of a hotel, a person who on behalf of another accepts transient occupancies, and a person who is an employee of a property management firm meeting certain requirements, as provided.
This bill would repeal that provision excluding those persons from the definition of a real estate broker.
Existing law makes it unlawful for any licensed real estate salesperson to pay any compensation for performing specified acts to any real estate licensee except through the broker under whom he or she is at the time
licensed.
This bill would authorize a licensee to enter into an agreement with another licensee to share compensation provided that the compensation is paid through the responsible broker. The bill would define a “responsible broker” as a real estate broker responsible for the exercise of control and supervision of real estate salespersons, as specified. salespersons.
Under existing law, when a licensee prepares or has prepared an agreement authorizing or employing such licensee to perform any of the acts for which he or she is required to hold a license, or when such licensee secures the signature of any person to any contract pertaining to such services or transaction, he or she is required to deliver a copy of the agreement to the
person signing it at the time the signature is obtained.
This bill would require the copy of the agreement to be delivered either in print or electronic record as soon as practicable after obtaining the signature.
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.
Existing law requires the real estate salesperson’s license to remain in the possession
of the licensed real estate broker employer until canceled or until the salesperson leaves the employ of the broker, and the broker is required to make his or her license and the licenses of his salespersons available for inspection by the commissioner.
This bill would repeal those requirements.
Existing law authorizes the commissioner to 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 committed specified acts. Existing law also authorizes the commissioner to 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 or more of the corporation’s stock has done specified acts.
This bill would additionally
authorize the commissioner to take such action for (1) having solicited or induced the promotional listing or listing agreement for the sale or lease of residential property on specified grounds due to the entry into the neighborhood of persons with certain characteristics and (2) for failure to surrender a license issued in error or mistake.
(2) Under existing law, when a real estate license is issued to a corporation, if it desires any of its officers other than the specified designated officer to act under its license as a real estate broker, it is required to procure an additional license to so employ each additional officer.
This bill would authorize a corporation, in the event of death or incapacity of a sole designated broker-officer, to operate continuously under its existing license if notice and an application is provided to the bureau within a specified period of time of the death or
incapacity. Because the willful failure to provide that notice would be a crime, the bill would impose a state-mandated local program.
Under existing law, each officer of a corporation through whom it is licensed to act as a real estate broker is, while so employed under that license, a licensed real estate broker, but is only licensed to act as such for and on behalf of the corporation as an officer.
This bill would not preclude a designated corporate officer who has a separate individual license from conducting licensed activity for another entity if the entity for which he or she acts is clearly disclosed and apparent to any member of the public using his or her services outside the corporation. When a corporation wishes to act as a real estate broker, the bill would require the corporation to be licensed by the bureau through qualified broker-officers, as provided. The bill would provide that an officer of a corporation
through whom it is licensed to act need not maintain an individual broker’s license, but would provide that the officer is subject to all duties and responsibilities of a licensed real estate broker. Because a willful violation these requirements would be a crime, the bill would impose a state-mandated local program.
(3) This bill would make numerous conforming and nonsubstantive changes.
(4) This bill would make the operation of its provisions contingent on the enactment of AB 1289 relating to real estate introduced in the 2017–18 Regular Session.
(5) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
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 10015.1 is added to the Business and Professions Code, to read:10015.1.
“Responsible broker” means a real estate broker responsible for the exercise of control and supervision of real estateSEC. 3.
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.
Section 10015.3 is added to the Business and Professions Code, to read:10015.3.
“Broker associate” means a brokerSEC. 5.
Section 10015.4 is added to the Business and Professions Code, to read:10015.4.
“Responsible broker identity” means the name under which the broker operates or conducts business and may include a sole proprietorship or business entity name.SEC. 6.
Section 10015.5 is added to the Business and Professions Code, to read:10015.5.
“Professional identity” includes “broker identity” and the identity under which the licensee is authorized to do business.SEC. 7.
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 licensed 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.
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.
Section 10018.02 is added to the Business and Professions Code, to read:10018.02.
“Seller” means a transferor in a real property transaction and includes an owner who lists real property with a broker, whether or not a transfer results, or who receives an offer to purchase real property of which he or she is the owner from a licensee on behalf of another. “Seller” includes both a vendor and lessor of real property.SEC. 10.
Section 10018.03 is added to the Business and Professions Code, to read:10018.03.
“Listing licensee” means a licensee who provides services requiring a real estate license for a seller pursuant to a listing agreement.SEC. 11.
Section 10018.04 is added to the Business and Professions Code, to read:10018.04.
“Seller’s licensee” means a licensee who provides services requiring a real estate license for a seller.SEC. 12.
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, 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.
Section 10018.06 is added to the Business and Professions Code, to read:10018.06.
“Buyer’sSEC. 14.
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 (i) residential property, (ii) multi-unit residential property with more than four dwelling units, (iii) commercial real property, (iv) vacant land, (v) a ground lease coupled with improvements, orSEC. 15.
Section 10018.08 is added to the Business and Professions Code, to read:10018.08.
“Residential property” or “residential real property” means: (i) real property improved with one to four dwelling units, including any leasehold exceeding one year’s duration of such, (ii) a unit in a residential stock cooperative, condominium, or planned unit development, or (iii) a mobilehome when offered for sale or sold through a real estate broker pursuant to Section 10131.6.SEC. 16.
Section 10018.09 is added to the Business and Professions Code, to read:10018.09.
“Commercial real property” means all real property in the state, except (i) residential real property, (ii) dwelling units made subject to Chapter 2 (commencing with Section 1940) of Title 5 of Part 4 of Division 3 of the Civil Code, (iii) a mobilehome as defined in Section 798.3 of the Civil Code,SEC. 17.
Section 10018.10 is added to the Business and Professions Code, to read:10018.10.
“Sell,” “sale,” or “sold” means a transaction for the transfer of real property from a seller to a buyer, and includes (i) an exchange of real property between a seller and a buyer, (ii) transactions for the creation of a real property sales contract within the meaning of Section 2985 of the Civil Code, and (iii) a leasehold exceeding one year’s duration.SEC. 18.
Section 10018.11 is added to the Business and Professions Code, to read:10018.11.
“Dual broker” means (1) a broker who individually provides services for both a seller and a buyer in the same transaction, (2) a responsible broker who has a dual licensee under his or her supervision, or (3) a responsible broker who has a seller’s licensee and a buyer’s licensee under his or her supervision in the same transaction.SEC. 19.
Section 10018.12 is added to the Business and Professions Code, to read:10018.12.
“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) of Division 4.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 licensee by which the licensee has been authorized to sell the real property or find or obtain a buyer, including rendering other related real estate services to the seller pursuant to the terms of the agreement.SEC. 22.
Section 10018.15 is added to the Business and Professions Code, to read:10018.15.
“Exclusive right to sell listing” means a listing agreement whereby the owner grants to a broker, for a specified period of time, the exclusive right to sell, find, or obtain a buyer for the real property, and the broker is entitled to the agreed compensation if during that period of time the real property is sold, no matter who effected the sale, or when the listing broker receives and presents to the owner any enforceable offer from a ready, able, and willing buyer on terms that are authorized by the listing agreement or accepted by the owner. The “exclusive right to sell listing” may provide for compensation to the listing broker if the property is sold within a specified period after termination of the listing agreement.SEC. 23.
Section 10018.16 is added to the Business and Professions Code, to read:10018.16.
“Seller reserved listing” has the same meaning as “exclusive right to sell listing in Section 10018.16,” except that the owner reserves the right to sell directly but not through any other agent and, in that event, without obligation to pay compensation to the agent.SEC. 23.SEC. 24.
Section 10018.17 is added to the Business and Professions Code, to read:10018.17.
“Open listing” means a listing agreement which grants no exclusive rights or priorities to the listing broker, and the agreed commission is payable to the broker only if the listing broker obtains and presents to the owner an enforceable offer from a ready, able, and willing buyer on the terms authorized by the listing agreement, which is accepted by the owner, before the property is otherwise sold either through another broker or by the owner directly and before the listing agreement expires by its terms or is revoked.SEC. 24.SEC. 25.
Section 10026 of the Business and Professions Code is amended to read:10026.
(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 bureau 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. 25.SEC. 26.
Section 10027 of the Business and Professions Code is amended to read:10027.
The term “promotional listing” as used in this part includes, but is not limited to:(a) The name or a list of the names, of the owners, landlords, exchangers, or lessors, or the location or locations, of property, or of an interest in property, offered for rent, sale, lease, or
exchange, which may include a listing agreement.
(b) The name, or a list of the names, or the location or locations at which prospective or potential purchasers, buyers, lessees, tenants or exchangers of property may be found or contacted, which may include a listing agreement.
(a)(1)There is in the Department of Consumer Affairs a Bureau of Real Estate, the chief officer of which bureau is named the Real Estate Commissioner.
(2)Notwithstanding any other law, the powers and duties of the bureau, as set forth in this part and Chapter 1 (commencing with Section 11000) of Part 2, shall be subject to review by the appropriate policy committees of the Legislature. The review shall be performed as if this part and that chapter were scheduled to be repealed as of January 1, 2021.
(b)It shall be the principal responsibility of the commissioner to enforce all laws in this part and Chapter
1 (commencing with Section 11000) of Part 2 in a manner that achieves the maximum protection for the buyers of real property and those persons dealing with real estate licensees.
(c)Wherever the term “commissioner” is used in this division, it means the Real Estate Commissioner.
SEC. 27.
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.(2) Notwithstanding any other law, the powers and duties of the department, as set forth in this part and Chapter 1 (commencing with Section 11000) of Part 2, shall be subject to review by the appropriate policy committees of the Legislature. The review shall be performed as if this part and that chapter were scheduled to be repealed as of January 1, 2021.
(b) It shall be the principal responsibility of the commissioner to enforce all laws in this part and Chapter 1 (commencing with
Section 11000) of Part 2 in a manner that achieves the maximum protection for the purchasers
buyers of real property and those persons dealing with real estate licensees.
(c) Wherever the term “commissioner” is used in this division, it means the Real Estate Commissioner.
(d) This section shall become operative on July 1, 2018.
SEC. 27.SEC. 28.
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:(a) Sells or offers to sell, buys or offers to buy, solicits prospective sellers or purchasers buyers of, solicits or obtains promotional listings or listing agreements of, or negotiates the purchase, sale
sale, or exchange of real property or a business opportunity.
(b) Leases or rents or offers to lease or rent, or places for rent, or solicits promotional listings or listing agreements of, places for rent, or solicits for prospective tenants, or negotiates the sale, purchase purchase, or exchanges of leases on real property, or on a business opportunity, or collects rents from real property, or improvements thereon, or from business opportunities.
(c) Assists or offers to assist in filing an application for the purchase or lease of, or in locating or entering upon, lands
owned by the state or federal government.
(d) Solicits borrowers or lenders for or negotiates loans or collects payments or performs services for borrowers or lenders or note owners in connection with loans secured directly or collaterally by liens on real property or on a business opportunity.
(e) Sells or offers to sell, buys or offers to buy, or exchanges or offers to exchange a real property sales contract, or a promissory note secured directly or collaterally by a lien on real property or on a business opportunity, and performs services for the holders thereof.
SEC. 28.SEC. 29.
Section 10132 of the Business and Professions Code is repealed.(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:
(1)Any person or employee thereof doing business under any law of this state, any other state, or the United States relating to banks, trust companies, savings and loan associations, industrial loan companies, pension trusts, credit unions, or insurance companies.
(2)Any nonprofit cooperative association organized under Chapter 1 (commencing with Section 54001) of Division 20 of the Food
and Agricultural Code, in loaning or advancing money in connection with any activity mentioned therein.
(3)Any corporation, association, syndicate, joint stock company, or partnership engaged exclusively in the business of marketing agricultural, horticultural, viticultural, dairy, livestock, poultry, or bee products on a cooperative nonprofit basis, in loaning or advancing money to the members thereof or in connection with any business of that type.
(4)Any corporation securing money or credit from any federal intermediate credit bank organized and existing pursuant to the provisions of an act of Congress entitled the “Agricultural Credits Act of 1923,” in loaning or advancing money or credit so secured.
(5)Any
person licensed to practice law in this state, not actively and principally engaged in the business of negotiating loans secured by real property, when that person renders services in the course of his or her practice as an attorney at law, and the disbursements of that person, whether paid by the borrower or other person, are not charges or costs and expenses regulated by or subject to the limitations of Article 7 (commencing with Section 10240), and the fees and disbursements are not shared, directly or indirectly, with the person negotiating the loan or the lender.
(6)Any person licensed as a finance lender when acting under the authority of that license.
(7)Any cemetery authority as defined by Section 7018 of the Health and Safety Code, that is authorized to do business in this state
or its authorized agent.
(8)Any person authorized in writing by a savings institution to act as an agent of that institution, as authorized by Section 6520 of the Financial Code or comparable authority of the Office of the Comptroller of the Currency of the United States Department of the Treasury by its regulations, when acting under the authority of that written authorization.
(9)Any person who is licensed as a securities broker or securities dealer under any law of this state, or of the United States, or any employee, officer, or agent of that person, if that person, employee, officer, or agent is acting within the scope of authority granted by that license in connection with a transaction involving the offer, sale, purchase, or exchange of a security representing an ownership
interest in a pool of promissory notes secured directly or indirectly by liens on real property, which transaction is subject to any law of this state or the United States regulating the offer or sale of securities.
(10)Any person licensed as a residential mortgage loan originator or servicer when acting under the authority of that license.
(11)Any organization that has been approved by the United States Department of Housing and Urban Development pursuant to Section 106(a)(1)(iii) of the federal Housing and Urban Development Act of 1968 (12 U.S.C. Sec. 1701x), to provide counseling services, or an employee of such an organization, when those services are provided at no cost to the borrower and are in connection with the modification of the terms of a loan secured directly
or collaterally by a lien on residential real property containing four or fewer dwelling units.
(b)Persons described in paragraph (1), (2), or (3), as follows, are exempt from the provisions of subdivisions (d) and (e) of Section 10131 or Section 10131.1 with respect to the collection of payments or performance of services for lenders or on notes of owners in connection with loans secured directly or collaterally by liens on real property:
(1)The person makes collections on 10 or less of those loans, or in amounts of forty thousand dollars ($40,000) or less, in any calendar year.
(2)The person is a corporation licensed as an escrow agent under Division 6 (commencing with Section 17000) of the Financial Code and the
payments are deposited and maintained in the escrow agent’s trust account.
(3)An employee of a real estate broker who is acting as the agent of a person described in paragraph (4) of subdivision (b) of Section 10232.4.
For purposes of this subdivision, performance of services does not include soliciting borrowers, lenders, or purchasers for, or negotiating, loans secured directly or collaterally by a lien on real property.
(c)(1)Subdivision (d) of Section 10131 does not apply to an employee of a real estate broker who, on behalf of the broker, assists the broker in meeting the broker’s obligations to its customers in residential mortgage loan transactions, as defined in Section 50003 of the Financial Code, where
the lender is an institutional lender, as defined in Section 50003 of the Financial Code, provided the employee does not participate in any negotiations occurring between the principals.
(2)A broker shall exercise reasonable supervision and control over the activities of nonlicensed employees acting under this subdivision, and shall comply with Section 10163 for each location where the nonlicensed persons are employed.
This section does not restrict the ability of the commissioner to discipline a broker or corporate broker licensee or its designated officer, or both the corporate broker licensee and its designated officer, for misconduct of a nonlicensed employee acting under this subdivision, or, pursuant to Section 10080, to adopt, amend, or repeal rules or regulations governing the employment or supervision
of an employee who is a nonlicensed person as described in this subdivision.
SEC. 30.
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:(1) Any person or employee thereof doing business under any law of this state, any other state, or the United States relating to banks, trust companies, savings and loan associations, industrial loan companies, pension trusts, credit unions, or insurance companies.
(2) Any nonprofit cooperative association organized under Chapter 1 (commencing with Section 54001) of Division 20 of the Food and Agricultural Code, in loaning or advancing money in connection
with any activity mentioned therein.
(3) Any corporation, association, syndicate, joint stock company, or partnership engaged exclusively in the business of marketing agricultural, horticultural, viticultural, dairy, livestock, poultry, or bee products on a cooperative nonprofit basis, in loaning or advancing money to the members thereof or in connection with any business of that type.
(4) Any corporation securing money or credit from any federal intermediate credit bank organized and existing pursuant to the provisions of an act of Congress entitled the “Agricultural Credits Act of 1923,” in loaning or advancing money or credit so secured.
(5) Any person licensed to practice law in this state, not actively and principally engaged in the business of negotiating loans secured by real property, when that person renders
services in the course of his or her practice as an attorney at law, and the disbursements of that person, whether paid by the borrower or other person, are not charges or costs and expenses regulated by or subject to the limitations of Article 7 (commencing with Section 10240), and the fees and disbursements are not shared, directly or indirectly, with the person negotiating the loan or the lender.
(6) Any person licensed as a finance lender when acting under the authority of that license.
(7) Any cemetery authority as defined by Section 7018 of the Health and Safety Code, that is authorized to do business in this state or its authorized agent.
(8) Any person authorized in writing by a savings institution to act as an agent of that institution, as authorized by Section 6520 of the Financial Code or comparable
authority of the Office of the Comptroller of the Currency of the United States Department of the Treasury by its regulations, when acting under the authority of that written authorization.
(9) Any person who is licensed as a securities broker or securities dealer under any law of this state, or of the United States, or any employee, officer, or agent of that person, if that person, employee, officer, or agent is acting within the scope of authority granted by that license in connection with a transaction involving the offer, sale, purchase, or exchange of a security representing an ownership interest in a pool of promissory notes secured directly or indirectly by liens on real property, which transaction is subject to any law of this state or the United States regulating the offer or sale of securities.
(10) Any person licensed as a residential mortgage lender
loan originator or servicer when acting under the authority of that license.
(11) Any organization that has been approved by the United States Department of Housing and Urban Development pursuant to Section 106(a)(1)(iii) of the federal Housing and Urban Development Act of 1968 (12 U.S.C. Sec. 1701x), to provide counseling services, or an employee of such an organization, when those services are provided at no cost to the borrower and are in connection with the modification of the terms of a loan secured directly or collaterally by a lien on residential real property containing four or fewer dwelling units.
(12) Any person licensed as a PACE program administrator when acting under the authority of that license.
(13) A PACE solicitor, when enrolled by a person licensed as a
program administrator and acting pursuant to an agreement with that program administrator licensee.
(14) A PACE solicitor agent, when enrolled by a person licensed as a program administrator and acting pursuant to an agreement between a PACE solicitor and that program administrator licensee.
(b) Persons described in paragraph (1), (2), or (3), as follows, are exempt from the provisions of subdivisions (d) and (e) of Section 10131 or Section 10131.1 with respect to the collection of payments or performance of services for lenders or on notes of owners in connection with loans secured directly or collaterally by liens on real property:
(1) The person makes collections on 10 or less of those loans, or in amounts of forty thousand dollars ($40,000) or less, in any calendar year.
(2) The person is a corporation licensed as an escrow agent under Division 6 (commencing with Section 17000) of the Financial Code and the payments are deposited and maintained in the escrow agent’s trust account.
(3) An employee of a real estate broker who is acting as the agent of a person described in paragraph (4) of subdivision (b) of Section 10232.4.
For purposes of this subdivision, performance of services does not include soliciting borrowers, lenders, or purchasers for, or negotiating, loans secured directly or collaterally by a lien on real property.
(c) (1) Subdivision (d) of Section 10131 does not apply to an employee of a real estate broker who, on behalf of the broker, assists the broker in meeting the broker’s obligations to its customers in
residential mortgage loan transactions, as defined in Section 50003 of the Financial Code, where the lender is an institutional lender, as defined in Section 50003 of the Financial Code, provided the employee does not participate in any negotiations occurring between the principals.
(2) A broker shall exercise reasonable supervision and control over the activities of nonlicensed employees acting under this subdivision, and shall comply with Section 10163 for each location where the nonlicensed persons are employed.
This
(d) This
section does not restrict the ability of the commissioner to discipline a broker or corporate broker licensee or its designated officer, or both the corporate broker licensee and its designated officer, for misconduct of a nonlicensed employee acting under this subdivision, or, pursuant to Section 10080, to adopt, amend, or repeal rules or regulations governing the employment or supervision of an employee who is a nonlicensed person as described in this subdivision.
This
(e) This
section shall become operative on January 1, 2019.
SEC. 30.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 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 another licensed real estate broker 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.No real estate salesperson shall accept compensation for activity requiring a real estate license from any person other than the broker under whom
he or she is at the time licensed.
It is unlawful for any licensed real estate salesperson to pay any compensation for performing any of the acts within the scope of this chapter to any real estate licensee except through the broker under whom he or she is at the time licensed. A licensee may enter into an agreement with another licensee to share that compensation provided that any such compensation is paid through the responsible broker.
For a violation of any of the provisions of this section, the commissioner may temporarily suspend or permanently revoke the license of the real estate licensee, in accordance with the provisions of this part relating to hearings.
(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.
(b)(1)A real estate licensee shall disclose his or her license identification number and, if that licensee is a mortgage loan originator, the unique identifier assigned to that licensee by the Nationwide Mortgage Licensing System and Registry, on all solicitation materials intended to be the
first point of contact with consumers and on real property purchase agreements when acting as a licensee in those transactions. The commissioner may adopt regulations identifying the materials in which a licensee must disclose a license identification number and, if that licensee is a mortgage loan originator, the unique identifier assigned to that licensee by the Nationwide Mortgage Licensing System and Registry.
(2)For purposes of this section, “solicitation materials intended to be the first point of contact with consumers” includes business cards, stationery, advertising flyers, and other materials designed to solicit the creation of a professional relationship between the licensee and a consumer, and excludes an advertisement in print or electronic media and “for sale” signs.
(3)Nothing in this section shall be construed to limit or change the requirement described in Section 10236.4 as applicable to real estate brokers.
(c)The provisions of this section shall not apply to classified rental advertisements reciting the telephone number at the premises of the property offered for rent or the address of the property offered for rent.
(d)“Mortgage loan originator,” “unique identifier,” and “Nationwide Mortgage Licensing System and Registry” have the meanings set forth in Section 10166.01.
(e)This section shall remain in effect only until January 1, 2018, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2018, deletes
or extends that date.
SEC. 32.
Section 10140.6 of the Business and Professions Code, as added by Section 2 of Chapter 142 of the Statutes of 2016, 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.(b) (1) A real estate licensee shall disclose his or her name, license identification number and unique identifier assigned to that licensee by the Nationwide Mortgage Licensing System and Registry, if that licensee is a mortgage loan originator, and responsible broker’s identity, as defined
in Section 10159.7, on all solicitation materials intended to be the first point of contact with consumers and on real property purchase agreements when acting as a licensee in those transactions. The commissioner may adopt regulations identifying the materials in which a licensee must disclose a license identification number and unique identifier assigned to that licensee by the Nationwide Mortgage Licensing System and Registry, and responsible broker’s identity.
(2) For purposes of this section, “solicitation materials” include business cards, stationery, advertising flyers, advertisements on television, in print, or electronic media, “for sale,” rent, lease, “open house,” and directional signs, and other materials designed to solicit the creation of a professional relationship between the licensee and a consumer.
(3) Nothing in this section shall be construed to limit or change the requirement described in Section 10236.4 as applicable to real estate brokers.
(c) This section shall not apply to “for sale,” rent, lease, “open house,” and directional signs that do either of the following:
(1) Display the responsible broker’s identity, as defined in Section 10159.7, without reference to an associate broker or licensee.
(2) Display no licensee identification information.
(d) “Mortgage loan originator,” “unique identifier,” and “Nationwide Mortgage Licensing System and Registry” have the meanings set forth in
Section 10166.01.
(e) This section shall become operative on January 1, 2018.
SEC. 33.
Section 10142 of the Business and Professions Code is amended to read:10142.
When a licensee prepares or has prepared an agreement pursuant to Section 10032 authorizing or retaining that licensee to perform any of the acts for which he or she is required to hold a license, or when such licensee secures the signature of any person to any contract pertaining to such services or transaction, he or she shall deliver a copy, either in printed or electronic record, of the agreement to the person signing it as soon as practicable after the time the signature is obtained.SEC. 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 operate continuously under its existing license if notice of the event and an application for a new designated officer is filed with the bureau before midnight of the 10th day after the event.SEC. 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, is licensed only to act as such for and on behalf of the corporation as an officer. This does not preclude a designated corporate officer who has a separate individual license from conducting licensed activity for another entity if the entity for which he or she acts is clearly disclosed and apparent to any member of the public using his or her services outside the corporation.When a corporation wishes to act as a real estate broker, the corporation shall be licensed by the bureau through qualified broker-officers, who have either passed the broker
license examination and are now qualified to obtain a broker license, or who are currently licensed as real estate brokers. An officer of a corporation through whom it is licensed to act need not maintain an individual broker’s license, but is otherwise subject to all duties and responsibilities of a licensed broker.
SEC. 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:(a) Notwithstanding subdivision (b) of Section 10140.6, advertising and solicitation materials that contain a team name, including print or electronic media and “for sale” signage, shall include, and display in a conspicuous and prominent manner, the team name and the name and license number of at least one of the licensed members of the team.
(b) The responsible broker’s identity shall be displayed as prominently and conspicuously as the team name in all advertising and solicitation materials.
(c) The advertising and solicitation materials shall not contain terms that imply the existence of a real estate entity independent of the responsible broker.
(d) Notwithstanding Section 10185, a violation of this section is not a misdemeanor.
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:(1) “Fictitious business name” means a professional identity or brand name under which activity requiring a real estate license is conducted and the use of which is subject to approval by the bureau pursuant to Section 10159.5.
(2) “Ownership of a fictitious business name” means the right to use, renew, and control the use of a fictitious business name obtained in accordance with Section 10159.5.
(3) “Team name” means a professional identity or brand name used by a salesperson, and one or
more other real estate licensees, for the provision of real estate licensed services. Notwithstanding any other law, the use of a team name does not require that a separate license be issued for that name pursuant to Section 10159.5. A team name does not constitute a fictitious business name for purposes of this part or any other law or for purposes of filing a fictitious business name statement with an application as required by subdivision (a) of Section 10159.5 if all of the following apply:
(A) The name is used by two or more real estate licensees who work together to provide licensed real estate services, or who represent themselves to the public as being a part of a team, group, or association to provide those services.
(B) The name includes the surname of at least one of
the licensee members of the team, group, or association in conjunction with the term “associates,” “group,” or “team.”
(C) The name does not include any term or terms, such as “real estate broker,” “real estate brokerage,” “broker,” or “brokerage” or any other term that would lead a member of the public to believe that the team is offering real estate brokerage services, that imply or suggest the existence of a real estate entity independent of a responsible broker.
(b) Nothing in this section changes a real estate broker’s duties under this division to supervise a salesperson.
SEC. 40.
Section 10160 of the Business and Professions Code is repealed.SEC. 41.
Section 10161.8 of the Business and Professions Code, as amended by Section 3 of Chapter 614 of the Statutes of 2016, is repealed.SEC. 42.
Section 10161.8 of the Business and Professions Code, as added by Section 4 of Chapter 614 of the Statutes of 2016, is repealed.A broker and a real estate licensee shall immediately notify the commissioner in a manner designated by the commissioner whenever any of the following occur:
(a)A real estate licensee affiliates as an independent contractor with or is otherwise retained by a real estate broker pursuant to Section 10032 to conduct licensed activities.
(b)A real estate licensee’s agreement with a broker is terminated.
(c)A real estate licensee affiliated with or retained by a broker acquires a business address different from the address shown on the records maintained by the
commissioner.
SEC. 43.
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.(b) Whenever a real estate salesperson affiliates with a responsible broker as an independent contractor or is retained in any other capacity to conduct activities requiring a license, the responsible broker shall notify the commissioner in a manner specified by the commissioner.
(c) Whenever a real estate broker affiliates with a responsible broker as an independent contractor or is retained in any other capacity to
conduct activities requiring a license, the responsible broker and the affiliated broker shall provide notice to the commissioner in a manner specified by the commissioner.
(d) Whenever an affiliation with a real estate licensee is terminated, the responsible broker shall provide notice to the commissioner in a manner specified by the commissioner.
(e) Whenever a real estate licensee acquires a business address different from the address shown in the records maintained by the commissioner, the licensee shall notify the commissioner in a manner specified by the commissioner.
SEC. 44.
Section 10164 of the Business and Professions Code is amended to read:10164.
(a) A responsible broker or designated broker officer may appoint a licensee as a manager of a branch office or division of the broker’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.(b) Notwithstanding subdivision (a), nothing in this section shall be construed to limit the responsibilities of a responsible broker or a designated corporate officer pursuant to Sections 10158 and 10211. A licensee accepting appointment as a manager shall be subject to disciplinary action pursuant to Section 10165 for failure
to properly supervise licensed activity pursuant to subdivision (a).
(c) Appointment of a manager shall only be made by means of a written contract in which the manager accepts the delegated responsibility. The appointing broker shall retain a copy of the contract and send a notice to the department, in a form approved by the commissioner, identifying the appointed manager and the branch office or division the manager is appointed to supervise.
(d) A licensee shall not be appointed as a manager if any of the following apply:
(1) The licensee holds a restricted license.
(2) The licensee is or has been subject to an order of debarment.
(3) The licensee is a salesperson with less than two years of full-time real estate experience within five years preceding the
appointment.
(e) Whenever an appointment of a branch manager is terminated or changed, the responsible broker shall immediately notify the commissioner thereof in writing.
SEC. 45.
Section 10166.03 of the Business and Professions Code is amended to read:10166.03.
(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.
SEC. 46.
Section 10167 of the Business and Professions Code is amended to read:10167.
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 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. 47.
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:(a) Making any substantial misrepresentation.
(b) Making any false promises of a character likely to influence, persuade, or
induce.
(c) A continued and flagrant course of misrepresentation or making of false promises through licensees.
(d) Acting for more than one party in a transaction without the knowledge or consent of all parties thereto.
(e) Commingling with his or her own money or property the money or other property of others which is received and held by him or her.
(f) Claiming, demanding, or receiving a fee, compensation, or commission under any exclusive agreement authorizing or contracting with a licensee to perform any acts set forth in Section 10131 for compensation or commission where
the agreement does not contain a definite, specified date of final and complete termination.
(g) The claiming or taking by a licensee of any secret or undisclosed amount of compensation, commission, or profit or the failure of a licensee to reveal to the principal buyer or seller contracting with the licensee the full amount of the licensee’s compensation, commission, or profit under any agreement authorizing or contracting with the licensee to do any acts for which a license is required under this chapter for compensation or commission prior to or coincident with the signing of an
agreement evidencing the meeting of the minds of the contracting parties, regardless of the form of the agreement, whether evidenced by documents in an escrow or by any other or different procedure.
(h) The use by a licensee of any provision allowing the licensee an option to purchase in an agreement authorizing or contracting with the licensee to sell, buy, or exchange real estate or a business opportunity for compensation or commission, except when the licensee prior to or coincident with election to exercise the option to purchase reveals in writing to the responsible broker the full amount of the licensee’s profit and obtains the written consent of the responsible broker approving the amount of the profit.
(i) Any other conduct, whether of the same or of a different character than specified in this section, which constitutes fraud or dishonest dealing.
(j) Obtaining the signature of a prospective buyer to an agreement which provides that the prospective buyer shall either transact the purchasing, leasing, renting, or exchanging of a business opportunity property through the broker obtaining the signature, or pay a compensation to the broker if the property is purchased, leased, rented, or exchanged without the broker first having obtained the written authorization of the owner of the property concerned to offer the property for sale, lease, exchange, or rent.
(k) Failing to disburse funds in accordance with a commitment to make a mortgage loan that is accepted by the
applicant when the real estate broker represents to the applicant that the broker is either of the following:
(1) The lender.
(2) Authorized to issue the commitment on behalf of the lender or lenders in the mortgage loan transaction.
(l) Intentionally delaying the closing of a mortgage loan for the sole purpose of increasing interest, costs, fees, or charges payable by the borrower.
(m) Violating any section, division, or article of law which provides that a violation of that section, division, or article of law by a licensed person is a violation of that person’s licensing law, if it occurs within the scope of that person’s duties as a
licensee.
SEC. 48.
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:(a) Procured, or attempted to procure, a real estate license or license renewal, for himself or herself or a salesperson, by fraud, misrepresentation, or deceit, or by making a material misstatement of
fact in an application for a real estate license, license renewal, or reinstatement.
(b) (1) Entered a plea of guilty or no contest to, or been found guilty of, or been convicted of, a felony, or a crime substantially related to the qualifications, functions, or duties of a real estate licensee, and the time for appeal has elapsed or the judgment of conviction has been affirmed on appeal, irrespective of an order granting probation following that conviction, suspending the imposition of sentence, or of a subsequent order under Section 1203.4 of the Penal Code allowing that licensee to withdraw his or her plea of guilty and to enter a plea of not guilty, or dismissing the accusation or information.
(2) Notwithstanding paragraph (1), and with the recognition that
sentencing may not occur for months or years following the entry of a guilty plea, the commission may suspend the license of a real estate licensee upon the entry by the licensee of a guilty plea to any of the crimes described in paragraph (1). If the guilty plea is withdrawn, the suspension shall be rescinded and the license reinstated to its status prior to the suspension. The bureau shall notify a person whose license is subject to suspension pursuant to this paragraph of his or her right to have the issue of the suspension heard in accordance with Section 10100.
(c) Knowingly authorized, directed, connived at, or aided in the publication, advertisement, distribution, or circulation of a material false statement or representation concerning his or her designation or certification of special education, credential, trade organization membership,
or business, or concerning a business opportunity or a land or subdivision, as defined in Chapter 1 (commencing with Section 11000) of Part 2, offered for sale.
(d) Willfully disregarded or violated the Real Estate Law (Part 1 (commencing with Section 10000)) or Chapter 1 (commencing with Section 11000) of Part 2 or the rules and regulations of the commissioner for the administration and enforcement of the Real Estate Law and Chapter 1 (commencing with Section 11000) of Part 2.
(e) Willfully used the term “realtor” or a trade name or insignia of membership in a real estate organization of which the licensee is not a member.
(f) Acted or conducted himself or herself in a manner that would have warranted the
denial of his or her application for a real estate license, or either had a license denied or had a license issued by another agency of this state, another state, or the federal government revoked, surrendered, or suspended for acts that, if done by a real estate licensee, would be grounds for the suspension or revocation of a California real estate license, if the action of
denial, revocation, surrender, or suspension by the other agency or entity was taken only after giving the licensee or applicant fair notice of the charges, an opportunity for a hearing, and other due process protections comparable to the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340), Chapter 4 (commencing with Section 11370), and Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code), and only upon an express finding of a violation of law by the agency or entity.
(g) Demonstrated negligence or incompetence in performing an act for which he or she is required to hold a license.
(h) As a broker licensee, failed to exercise reasonable supervision over the activities of his or her salespersons, or,
as the officer designated by a corporate broker licensee, failed to exercise reasonable supervision and control of the activities of the corporation for which a real estate license is required.
(i) Used his or her employment by a governmental agency in a capacity giving access to records, other than public records, in a manner that violates the confidential nature of the records.
(j) Engaged in any other conduct, whether of the same or of a different character than specified in this section, that constitutes fraud or dishonest dealing.
(k) Violated any of the terms, conditions, restrictions, and limitations contained in an order granting a restricted license.
(l) (1) Solicited or induced the sale, lease, promotional listing, or listing agreement for sale or lease of residential property on the grounds, wholly or in part, of loss of value, increase in crime, or decline of the quality of the schools due to the present or prospective entry into the neighborhood of a person or persons having a characteristic listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those characteristics are defined in Sections 12926 and 12926.1 of, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955 of, and Section 12955.2 of, the Government Code.
(2) Notwithstanding paragraph (1), with respect to familial status, paragraph (1) shall not be construed to apply to housing for older persons, as defined in Section 12955.9 of the Government Code. With respect to familial
status, nothing in paragraph (1) shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the Civil Code, relating to housing for senior citizens. Subdivision (d) of Section 51 and Section 4760 of the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall apply to paragraph (1).
(m) Violated the Franchise Investment Law (Division 5 (commencing with Section 31000) of Title 4 of the Corporations Code) or regulations of the Commissioner of Corporations pertaining thereto.
(n) Violated the Corporate Securities Law of 1968 (Division 1 (commencing with Section 25000) of Title 4 of the Corporations Code) or the regulations of the Commissioner of Corporations pertaining thereto.
(o) Failed to disclose to the buyer of real property, in a transaction in which the licensee is an agent for the buyer, the nature and extent of a licensee’s direct or indirect ownership interest in that real property. The direct or indirect ownership interest in the property by a person related to the licensee by blood or marriage, by an entity in which the licensee has an ownership interest, or by any other person with whom the licensee has a special relationship shall be disclosed to the buyer.
(p) Violated Article 6 (commencing with Section 10237).
(q) Violated or failed to comply with Chapter 2 (commencing with Section 2920) of Title 14 of Part 4 of Division 3 of the Civil Code, relating to mortgages.
(r) Failure to surrender a license that was issued in error or by mistake.
If a real estate broker that is a corporation has not done any of the foregoing acts, either directly or through its employees, agents, officers, directors, or persons owning or controlling 10 percent or more of the corporation’s stock, the commissioner may not deny the issuance or delay the renewal of a real estate license to, or suspend or revoke the real estate license of, the corporation, provided that any offending officer, director, or stockholder, who has done any of the foregoing acts individually and not on behalf of the corporation, has been completely disassociated from any affiliation or ownership in the corporation. A decision by the commissioner to delay the renewal of a real estate license shall toll the expiration of that license until the results of any
pending disciplinary actions against that licensee are final, or until the licensee voluntarily surrenders his, her, or its license, whichever is earlier.
SEC. 49.
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. 50.
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 the employer of the salesperson or employee unless it appears upon a hearing by the commissioner that the employer had guilty knowledge of the violation.SEC. 51.
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 bureau:(A) The bringing of a criminal complaint, information, or indictment charging a felony against the licensee.
(B) The conviction of the licensee, including any verdict of guilty, or plea of guilty or no contest, of any felony or misdemeanor.
(C) Any disciplinary action taken by another licensing entity or authority of this state or of another state or an agency of the federal government.
(2) The report
required by this subdivision shall be made in writing within 30 days of the date of the bringing of the indictment or the charging of a felony, the conviction, or the disciplinary action.
(b) Failure to make a report required by this section shall constitute a cause for discipline.
SEC. 52.
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:(1) Except as provided in paragraph (2), the aggregate principal amount of the note or interest sold, together with the unpaid principal amount of any encumbrances upon the real property senior thereto, shall not exceed the following percentages of the current market value of each parcel of the real property, as determined in writing by the broker or appraiser pursuant to Section 10232.6, plus the
amount for which the payment of principal and interest in excess of the percentage of current market value is insured for the benefit of the holders of the note or interest by an insurer admitted to do business in this state by the Insurance Commissioner:
(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% |
(2) The percentage amounts specified in paragraph (1) may be exceeded when and to the extent that the broker determines that the encumbrance of the property in excess of these percentages is reasonable and prudent considering all relevant factors pertaining to the real property. However, in no event shall the aggregate principal amount of the note or interest sold, together with the unpaid principal amount of any encumbrances upon the property senior thereto, exceed 80 percent of the current fair market value of improved real
property or 50 percent of the current fair market value of unimproved real property, except in the case of a single-family zoned lot or parcel as defined in paragraph (1), which shall not exceed 65 percent of the current fair market value of that lot or parcel, plus the amount insured as specified in paragraph (1). A written statement shall be prepared by the broker that sets forth the material considerations and facts that the broker relies upon for his or her determination, which shall be retained as a part of the broker’s record of the transaction. Either a copy of the statement or the information contained therein shall be included in the disclosures required pursuant to Section 10232.5.
(3) A copy of the appraisal or the broker’s evaluation, for each parcel of real property securing the note or interest, shall be delivered to the
purchaser. The broker shall advise the purchaser of his or her right to receive a copy. For purposes of this paragraph, “appraisal” means a written estimate of value based upon the assembling, analyzing, and reconciling of facts and value indicators for the real property in question. A broker shall not purport to make an appraisal unless he or she is qualified on the basis of special training, preparation, or experience.
(4) For construction or rehabilitation loans, where the amount withheld for construction or rehabilitation at the start of the project exceeds one hundred thousand dollars ($100,000), the term “current market value” may be deemed to be the value of the completed project if all of the following safeguards are met:
(A) An independent neutral third-party escrow
holder is used for all deposits and disbursements relating to the construction or rehabilitation of the secured property.
(B) The loan is fully funded, with the entire loan amount to be deposited in escrow prior to the recording of the deed or deeds of trust.
(C) A comprehensive, detailed draw schedule is used to ensure proper and timely disbursements to allow for completion of the project.
(D) The disbursement draws from the escrow account are based on verification from an independent qualified person who certifies that the work completed to date meets the related codes and standards and that the draws were made in accordance with the construction contract and draw schedule. For purposes of this subparagraph,
“independent qualified person” means a person who is not an employee, agent, or affiliate of the broker and who is a licensed architect, general contractor, structural engineer, or active local government building inspector acting in his or her official capacity.
(E) An appraisal is completed by a qualified and licensed appraiser in accordance with the Uniform Standards of Professional Appraisal Practice (USPAP).
(F) The documentation includes a detailed description of the actions that may be taken in the event of a failure to complete the project, whether that failure is due to default, insufficiency of funds, or other causes.
(G) The entire amount of the loan does not exceed two million five hundred thousand
dollars ($2,500,000).
(5) For construction or rehabilitation loans, where the amount withheld for construction or rehabilitation at the start of the project is one hundred thousand dollars ($100,000) or less, the term “current market value” may be deemed to be the value of the completed project if all of the following safeguards are met:
(A) The loan is fully funded, with the entire loan amount to be deposited in escrow prior to recording of the deed or deeds of trust.
(B) A comprehensive, detailed draw schedule is used to ensure proper and timely disbursements to allow for completion of the project.
(C) An appraisal is completed by a qualified and licensed appraiser
in accordance with the Uniform Standards of Professional Appraisal Practice (USPAP).
(D) The documentation includes a detailed description of the actions that may be taken in the event of a failure to complete the project, whether that failure is due to default, insufficiency of funds, or other causes.
(E) The entire amount of the loan does not exceed two million five hundred thousand dollars ($2,500,000).
(6) If a note or an interest will be secured by more than one parcel of real property, for the purpose of determining the maximum amount of the note or interest, each security property shall be assigned a portion of the note or interest that shall not exceed the percentage of current market value determined by, and in
accordance with, the provisions of paragraphs (1) and (2).
(b) The note or interest shall not be sold, unless the purchaser meets one or both of the qualifications of income or net worth set forth below and signs a statement, which shall be retained by the broker for four years, conforming to the following:
“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. 53.
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 Responsible Broker conducting transaction under Section 10237: | |
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 Responsible Broker | ||
Type Name of Person(s) Signing This Notice | ||
NOTE: AN AMENDED NOTICE MUST BE FILED BY THE RESPONSIBLE BROKER WITHIN 30 DAYS OF ANY MATERIAL CHANGE IN THE INFORMATION REQUIRED TO BE SET FORTH HEREIN.
(b) A broker or person who becomes the servicing agent for notes or interests sold pursuant to this article, upon which payments due during any period of three consecutive months in the aggregate exceed one hundred twenty-five thousand dollars
($125,000) or the number of persons entitled to the payments exceeds 120, shall file the notice required by subdivision (a) with the commissioner within 30 days after becoming the servicing agent.
(c) All advertising used for transactions under this article shall show the name of the broker and comply with Section 10235 of this code and Sections 260.302 and 2848 of Title 10 of the California Code of Regulations. Brokers and their agents are cautioned that a reference to a prospective investor that a transaction is conducted under this article may be deemed
misleading or deceptive if this representation may reasonably be construed by the investor as an implication of merit or approval of the transaction.
(d) Each parcel of real property directly securing the notes or interests shall be located in this state, the note or notes shall not by their terms be subject to subordination to any subsequently created deed of trust upon the real property, and the note or notes shall not be promotional notes secured by liens on separate parcels of real property in one subdivision or in contiguous subdivisions. For purposes of this subdivision, a promotional note means a promissory note secured by a trust deed, executed on unimproved real property or executed after construction of an improvement of the property but before the first purchase of the property as so improved, or executed as a means of
financing the first purchase of the property as so improved, that is subordinate, or by its terms may become subordinate, to any other trust deed on the property. However, the term “promotional note” does not include either of the following:
(1) A note that was executed in excess of three years prior to being offered for sale.
(2) A note secured by a first trust deed on real property in a subdivision that evidences a bona fide loan made in connection with the financing of the usual cost of the development in a residential, commercial, or industrial building or buildings on the property under a written agreement providing for the disbursement of the loan funds as costs are incurred or in relation to the progress of the work and providing for title insurance insuring the priority of
the security as against mechanic’s and materialmen’s liens or for the final disbursement of at least 10 percent of the loan funds after the expiration of the period for the filing of mechanic’s and
materialmen’s liens.
(e) The notes or interests shall be sold by or through a real estate broker, as principal or agent. At the time the notes or interests are originally sold or assigned, neither the broker nor an affiliate of the broker shall have an interest as owner, lessor, or developer of the property securing the loan, or any contractual right to acquire, lease, or develop the property securing the loan. This provision does not prohibit a broker from conducting the following transactions if, in either case, the disclosure statement furnished by the broker pursuant to subdivision (l) discloses the interest of the broker or affiliate in the transaction and the circumstances under which the broker or affiliate acquired the interest:
(1) A transaction in
which the broker or an affiliate of the broker is acquiring the property pursuant to a foreclosure under, or sale
pursuant to, a deed of trust securing a note for which the broker is the servicing agent or that the broker sold to the holder or holders.
(2) A transaction in which the broker or an affiliate of the broker is reselling from inventory property acquired by the broker pursuant to a foreclosure under, or sale pursuant to, a deed of trust securing a note for which the broker is the servicing agent or that the broker sold to the holder or holders.
(f) (1) The notes or interests shall not be sold to more than 10 persons, each of whom meets one or both of the qualifications of income or net worth set forth below and signs a statement, which shall be retained by the broker for four years, conforming to the following:
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 | |
(2) The number of offerees shall not be considered for the purposes of this section.
(3) Spouses and their dependents, and an individual and his
or her dependents, shall be counted as one person.
(4) A retirement plan, trust, business trust, corporation, or other entity that is wholly owned by an individual and the individual’s spouse or the individual’s dependents, or any combination thereof, shall not be counted separately from the individual, but the investments of these entities shall be aggregated with those of the individual for the purposes of the statement required by paragraph (1). If the investments of any entities are required to be aggregated under this subdivision, the adjusted gross income or net worth of these entities may also be aggregated with the net worth, income, or both, of the individual.
(5) The “institutional investors” enumerated in subdivision (i) of Section 25102 or subdivision (c) of
Section 25104 of the Corporations Code, or in a rule adopted pursuant thereto, shall not be counted.
(6) A partnership, limited liability company, corporation, or other organization that was not specifically formed for the purpose of purchasing the security offered in reliance upon this exemption from securities qualification is counted as one person.
(g) The notes or interests of the purchasers shall be identical in their underlying terms, including the right to direct or require foreclosure, rights to and rate of interest, and other incidents of being a lender, and the sale to each purchaser pursuant to this section shall be upon the same terms, subject to adjustment for the face or principal amount or percentage interest purchased and for interest earned or accrued. This
subdivision does not preclude different selling prices for interests to the extent that these differences are reasonably related to changes in the market value of the loan occurring between the sales of these interests. The interest of each purchaser shall be recorded pursuant to subdivisions (a) to (c), inclusive, of Section 10234.
(h) (1) Except as provided in paragraph (2), the aggregate principal amount of the notes or interests sold, together with the unpaid principal amount of any encumbrances upon the real property senior thereto, shall not exceed the following percentages of the current market value of each parcel of the real property, as determined in writing by the broker or appraiser pursuant to Section 10232.6, plus the amount for which the payment of principal and interest in excess of the percentage of
current market value is insured for the benefit of the holders of the notes or interests by an insurer admitted to do business in this state by the Insurance Commissioner:
(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% |
(2) The percentage amounts specified in paragraph (1) may be exceeded when and to the extent that the broker determines that the encumbrance of
the property in excess of these percentages is reasonable and prudent considering all relevant factors pertaining to the real property. However, in no event shall the aggregate principal amount of the notes or interests sold, together with the unpaid principal amount of any encumbrances upon the property senior thereto, exceed 80 percent of the current fair market value of improved real property or 50 percent of the current fair market value of unimproved real property, except in the case of a single-family zoned lot or parcel as defined in paragraph (1), which shall not exceed 65 percent of the current fair market value of that lot or parcel, plus the amount insured as specified in paragraph (1). A written statement shall be prepared by the broker that sets forth the material considerations and facts that the broker relies upon for his or her determination, which shall be retained as a part of the
broker’s record of the transaction. Either a copy of the statement or the information contained therein shall be included in the disclosures required pursuant to subdivision (l).
(3) A copy of the appraisal or the broker’s evaluation, for each parcel of real property securing the notes or interests, shall be delivered to each purchaser. For purposes of this paragraph, “appraisal” means a written estimate of value based upon the assembling, analyzing, and reconciling of facts and value indicators for the real property in question. A broker shall not purport to make an appraisal unless he or she is qualified on the basis of special training, preparation, or experience.
(4) For construction or rehabilitation loans, the term “current market value” may be deemed to be the value of the
completed project if the following safeguards are met:
(A) An independent neutral third-party escrow holder is used for all deposits and disbursements.
(B) The loan is fully funded, with the entire loan amount to be deposited in escrow prior to the recording of the deed or deeds of trust.
(C) A comprehensive, detailed draw schedule is used to ensure proper and timely disbursements to allow for completion of the project.
(D) The disbursement draws from the escrow account are based on verification from an independent qualified person who certifies that the work completed to date meets the related codes and standards and that the draws were made in
accordance with the construction contract and draw schedule. For purposes of this subparagraph, “independent qualified person” means a person who is not an employee, agent, or affiliate of the broker and who is a licensed architect, general contractor, structural engineer, or active local government building inspector acting in his or her official capacity.
(E) An appraisal is completed by a qualified and licensed appraiser in accordance with the Uniform Standards of Professional Appraisal Practice (USPAP).
(F) In addition to the transaction documentation required by subdivision (i), the documentation shall include a detailed description of actions that may be taken in the event of a failure to complete the project, whether that failure is due to default, insufficiency
of funds, or other causes.
(G) The entire amount of the loan does not exceed two million five hundred thousand dollars ($2,500,000).
(5) If a note or an interest will be secured by more than one parcel of real property, for the purpose of determining the maximum amount of the note or interest, each security property shall be assigned a portion of the note or interest that shall not exceed the percentage of current market value determined by, and in accordance with, the provisions of paragraphs (1) and (2).
(i) The documentation of the transaction shall require both of the following:
(1) A default upon any note or interest is a default upon all notes or
interests.
(2) The holders of more than 50 percent of the recorded beneficial interests of the notes or interests may govern the actions to be taken on behalf of all holders in accordance with Section 2941.9 of the Civil Code in the event of default or foreclosure for matters that require direction or approval of the holders, including designation of the broker, servicing agent, or other person acting on their behalf, and the sale, encumbrance, or lease of real property owned by the holders resulting from foreclosure or receipt of a deed in lieu of foreclosure. The terms called for by this subdivision may be included in the deed of trust, in the assignment of interests, or in any other documentation as is necessary or appropriate to make them binding on the parties.
(j) (1) The broker shall not accept any purchase or loan funds or other consideration from a prospective lender or purchaser, or directly or indirectly cause the funds or other consideration to be deposited in an escrow or trust account, except as to a specific loan or note secured by a deed of trust that the broker owns, is authorized to negotiate, or is unconditionally obligated to buy.
(2) All funds received by the broker from the purchasers or lenders shall be handled in accordance with Section 10145 for disbursement to the persons thereto entitled upon recordation of the interests of the purchasers or lenders in the note and deed of trust. No provision of this article shall be construed as modifying or superseding applicable law regulating the escrow holder in any transaction or the handling of the escrow account.
(3) The books and records of the broker or servicing agent, or both, shall be maintained in a manner that readily identifies transactions under this article and the receipt and disbursement of funds in connection with these transactions.
(4) If required by paragraph (3) of subdivision (k), the review by the independent certified public accountant shall include a sample of transactions, as reflected in the records of the trust account required pursuant to paragraph (1) of subdivision (k), and the bank statements and supporting documents. These documents shall be reviewed for compliance with this article with respect to the handling and distribution of funds. The sample shall be selected at random by the accountant from all these transactions and shall consist of both of the
following:
(A) Three sales made or 5 percent of the sales made pursuant to this article during the period for which the examination is conducted, whichever is greater.
(B) Ten payments processed or 2 percent of payments processed under this article during the period for which the examination is conducted, whichever is greater.
(5) For the purposes of this subdivision, the transaction that constitutes a “sale” is the series of transactions by which a series of notes of a maker, or the interests in the note of a maker, are sold or issued to their various purchasers under this article, including all receipts and disbursements in that process of funds received from the purchasers or lenders. The transaction that constitutes a “payment,”
for the purposes of this subdivision, is the receipt of a payment from the person obligated on the note or from some other person on behalf of the person so obligated, including the broker or servicing agent, and the distribution of that payment to the persons entitled thereto. If a payment involves an advance paid by the broker or servicing agent as the result of a dishonored check, the inspection shall identify the source of funds from which the payment was made or, in the alternative, the steps that are reasonably necessary to determine that there was not a disbursement of trust funds. The accountant shall inspect for compliance with the following specific provisions of this section: paragraphs (1), (2), and (3) of this subdivision and paragraphs (1) and (2) of subdivision (k).
(6) Within 30 days of the close of the period for which the
report is made, or within any additional time as the commissioner may in writing allow in a particular case, the accountant shall forward to the broker or servicing agent, as the case may be, and to the commissioner, the report of the accountant, stating that the inspection was performed in accordance with this section, listing the sales and the payments examined, specifying the nature of the deficiencies, if any, noted by the accountant with respect to each sale or payment, together with any further information as the accountant may wish to include, such as corrective steps taken with respect to any deficiency so noted, or stating that no deficiencies were observed. If the broker meets the threshold criteria of Section 10232, the report of the accountant shall be submitted as part of the quarterly reports required under Section 10232.25.
(k) The notes or interests shall be sold subject to a written agreement that obligates a licensed real estate broker, or a person exempted from the licensing requirement for real estate brokers under this chapter, to act as agent for the purchasers or lenders to service the note or notes and deed of trust, including the receipt and transmission of payments and the institution of foreclosure proceedings in the event of a default. A copy of this servicing agreement shall be delivered to each purchaser. The broker shall offer to the lenders or purchasers the services of the broker or one or more affiliates of the broker, or both, as servicing agent for each transaction conducted pursuant to this article. The agreement shall require all of the following:
(1) (A) That payments received on the note or notes be deposited
immediately to a trust account maintained in accordance with this section and with the provisions for trust accounts of licensed real estate brokers contained in Section 10145 and Article 15 (commencing with Section 2830.1) of Chapter 6 of Title 10 of the California Code of Regulations.
(B) That payments deposited pursuant to subparagraph (A) shall not be commingled with the assets of the servicing agent or used for any transaction other than the transaction for which the funds are received.
(2) That payments received on the note or notes shall be transmitted to the purchasers or lenders pro rata according to their respective interests within 25 days after receipt thereof by the agent. If the source for the payment is not the maker of the note, the agent shall inform the
purchasers or lenders in writing of the source for payment. A broker or servicing agent who transmits to the purchaser or lenders the broker’s or servicing agent’s own funds to cover payments due from the borrower but unpaid as a result of a dishonored check may recover the amount of the advances from the trust fund when the past due payment is received. However, this article does not authorize the broker, servicing agent, or any other person to issue, or to engage in any practice constituting, any guarantee or to engage in the practice of advancing payments on behalf of the borrower.
(3) If the broker or person who is or becomes the servicing agent for notes or interests sold pursuant to this article upon which the payments due during any period of three consecutive months in the aggregate exceed one hundred twenty-five thousand dollars ($125,000)
or the number of persons entitled to the payments exceeds 120, the trust account or accounts of that broker or affiliate shall be inspected by an independent certified public accountant at no less than three-month intervals during the time the volume is maintained. Within 30 days after the close of the period for which the review is made, the report of the accountant shall be forwarded as provided in paragraph (6) of subdivision (j). If the broker is required to file an annual report pursuant to subdivision (o) or pursuant to Section 10232.2, the quarterly report pursuant to this subdivision need not be filed for the last quarter of the year for which the annual report is made. For the purposes of this subdivision, an affiliate of a broker is any person controlled by, controlling, or under common control with the broker.
(4) Unless the
servicing agent will receive notice pursuant to Section 2924b of the Civil Code, the servicing agent shall file a written request for notice of default upon any prior encumbrances and promptly notify the purchasers or lenders of any default on the prior encumbrances or on the note or notes subject to the servicing agreement.
(5) The servicing agent shall promptly forward copies of both of the following to each purchaser or lender:
(A) Any notice of trustee sale filed on behalf of the purchasers or lenders.
(B) Any request for reconveyance of the deed of trust received on behalf of the purchasers or lenders.
(l) The broker shall disclose in writing to
each purchaser or lender the material facts concerning the transaction on a disclosure form adopted or approved by the commissioner pursuant to Section 10232.5, subject to the following:
(1) The disclosure form shall include a description of the terms upon which the note and deed of trust are being sold, including the terms of the undivided interests being offered therein, including the following:
(A) In the case of the sale of an existing note:
(i) The aggregate sale price of the note.
(ii) The percent of the premium over or discount from the principal balance plus accrued but unpaid interest.
(iii) The effective rate of return to the purchasers if the note is paid according to its terms.
(iv) The name and address of the escrow holder for the transaction.
(v) A description of, and the estimated amount of, each cost payable by the seller in connection with the sale and a description of, and the estimated amount of, each cost payable by the purchasers in connection with the sale.
(B) In the case of the origination of a note:
(i) The name and address of the escrow holder for the transaction.
(ii) The anticipated closing date.
(iii) A description of, and the estimated amount of, each cost payable by the borrower in connection with the loan and a description of, and the estimated amount of, each cost payable by the lenders in connection with the loan.
(C) In the case of a transaction involving a note or interest secured by more than one parcel of real property, in addition to the requirements of subparagraphs (A) and (B):
(i) The address, description, and estimated fair market value of each property securing the loan.
(ii) The amount of the available equity in each property securing the loan after the loan amount to be apportioned to each property is assigned.
(iii) The
loan to value percentage for each property after the loan amount to be apportioned to each property is assigned pursuant to subdivision (h).
(2) A copy of the written statement or information contained therein, as required by paragraph (2) of subdivision (h), shall be included in the disclosure form.
(3) Any interest of the broker or affiliate in the transaction, as described in subdivision (e), shall be included with the disclosure form.
(4) When the particular circumstances of a transaction make information not specified in the disclosure form material or essential to keep the information provided in the form from being misleading, and the other information is known to the broker, the other information shall also
be provided by the broker.
(5) If more than one parcel of real property secures the notes or interests, the disclosure form shall also fully disclose any risks to investors associated with securing the notes or interests with multiple parcels of real property.
(m) The broker or servicing agent shall furnish any purchaser of a note or interest, upon request, with the names and addresses of the purchasers of the other notes or interests in the loan.
(n) No agreement in connection with a transaction covered by this article shall grant to the real estate broker, the servicing agent, or any affiliate of the broker or agent the option or election to acquire the interests of the purchasers or lenders or to acquire the real
property securing the interests. This subdivision shall not prohibit the broker or affiliate from acquiring the interests, with the consent of the purchasers or lenders whose interests are being purchased, or the property, with the written consent of the purchasers or lenders, if the consent is given at the time of the acquisition.
(o) Each broker who conducts transactions under this article, or broker or person who becomes the servicing agent for notes or interests sold pursuant to this article, who meets the criteria of paragraph (3) of subdivision (k) shall file with the commissioner an annual report of a review of its trust account. The report shall be prepared and filed in accordance with subdivision (a) of Section 10232.2 and the rules and procedures thereunder of the commissioner. That report shall cover the broker’s transactions under
this article and, if the broker also meets the threshold criteria set forth in Section 10232, the broker’s transactions subject to that section shall be included as well.
(p) Each broker conducting transactions pursuant to this article, or broker or person who becomes the servicing agent for notes or interests sold pursuant to this article, who meets the criteria of paragraph (3) of subdivision (k) shall file with the commissioner a report of the transactions that is prepared in accordance with subdivision (c) of Section 10232.2. If the broker also meets the threshold criteria of Section 10232, the report shall also include the transactions subject to that section. This report shall be confidential pursuant to subdivision (f) of Section 10232.2.
SEC. 54.
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.If the
loan is not consummated and the broker is entitled to any charges, costs or expenses authorized by this article, he or she may not record a lien or encumbrance against the borrower’s property except subsequent to the filing of a legal action pursuant to the Code of Civil Procedure to recover said charges, costs or expenses. However, nothing contained herein shall prohibit a broker from recording a lien pursuant to a voluntary lien agreement in conjunction with a stipulation to dismiss an actual or proposed complaint for damages entitling the broker to such charges, costs or expenses after written notice to the borrower that the broker proposes or has initiated a complaint for damages pursuant to the Code of Civil Procedure.
SEC. 55.
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.(b) It is a misdemeanor, punishable by a fine of not exceeding one hundred dollars ($100) for each offense, for any person, whether obligor, escrow holder or otherwise, to pay or deliver compensation to a person for performing any acts for which a mineral, oil, and gas broker license is required unless that person is known by
the payer to be or has presented evidence to the payer that he or she was a licensed mineral, oil, and gas broker at the time the compensation was earned.
SEC. 56.
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:(a) Making any substantial misrepresentation.
(b) Making any
false promises of a character likely to influence, persuade, or induce.
(c) Acting for more than one party in a transaction without the knowledge or consent of all parties thereto.
(d) Commingling with his or her own money or property the money or property of others that is received and held by him or her.
(e) Claiming or demanding a fee, compensation, or commission under any exclusive agreement authorizing or employing a licensee to sell, buy, or exchange mineral, oil, or gas property for compensation, or commission where that agreement does not contain a definite, specified date of final and complete termination.
(f) Claiming or taking by a licensee of
any secret or undisclosed amount of compensation, commission, or profit, or the failure of a licensee to reveal to the employer of such licensee the full amount of the licensee’s compensation, commission, or profit under any agreement authorizing or employing such licensee to do any acts for which a license is required under this chapter for compensation or commission prior to or coincident with the signing of an agreement evidencing the meeting of the minds of the contracting parties, regardless of the form of such agreement, whether evidenced by documents in an escrow or by any other or different procedure.
(g) The use by a licensee of any provision allowing the licensee an option to purchase in an agreement authorizing or employing such licensee to sell, buy, or exchange mineral, oil, or gas property for compensation or commission,
except when the licensee prior to or coincident with election to exercise the option to purchase reveals in writing to the employer the full amount of the licensee’s profit and obtains the written consent of the employer approving the amount of that profit.
(h) Any other conduct, whether of the same or a different character than specified in this section, which constitutes fraud or dishonest dealing.
SEC. 57.
Section 11212 of the Business and Professions Code is amended to read:11212.
As used in this chapter, the following definitions apply:(a) “Accommodation” means any apartment, condominium or cooperative unit, cabin, lodge, hotel or motel room, or other private or commercial structure containing toilet facilities therein that is designed and available, pursuant to applicable law, for use and occupancy as a residence by one or more individuals, or any unit or berth on a commercial passenger ship, which is included in the offering of a time-share plan.
(b) “Advertisement” means any written, oral, or electronic communication that is directed to or targeted to persons within the state or such a communication made from this state or
relating to a time-share plan located in this state and contains a promotion, inducement, or offer to sell a time-share plan, including, but not limited to, brochures, pamphlets, radio and television scripts, electronic media, telephone and direct mail solicitations, and other means of promotion.
(c) “Association” means the organized body consisting of the purchasers of time-share interests in a time-share plan.
(d) “Assessment” means the share of funds required for the payment of common expenses that is assessed from time to time against each purchaser by the managing entity.
(e) “Bureau” means the Bureau of Real Estate.
(f) “Commissioner” means the Real
Estate Commissioner.
(g) “Component site” means a specific geographic location where accommodations that are part of a multisite time-share plan are located. Separate phases of a time-share property in a specific geographic location and under common management shall not be deemed a component site.
(h) “Conspicuous type” means either of the following:
(1) Type in upper and lower case letters two point sizes larger than the nearest nonconspicuous type, exclusive of headings, on the page on which it appears but in at least 10-point type.
(2) Conspicuous type may be utilized in contracts for purchase or public permits only where required by law or as authorized by the
commissioner.
(i) “Developer” means and includes any person who creates a time-share plan or is in the business of selling time-share interests, other than those employees or agents of the developer who sell time-share interests on the developer’s behalf, or retains agents to do the same, or any person who succeeds to the interest of a developer by sale, lease, assignment, mortgage, or other transfer, but the term includes only those persons who offer time-share interests for disposition in the ordinary course of business.
(j) “Dispose” or “disposition” means a voluntary transfer or assignment of any legal or equitable interest in a time-share plan, other than the transfer, assignment, or release of a security interest.
(k) “Exchange company” means any person owning or operating, or both owning and operating, an exchange program.
(l) “Exchange program” means any method, arrangement, or procedure for the voluntary exchange of time-share interests or other property interests. The term does not include the assignment of the right to use and occupy accommodations to owners of time-share interests within a single site time-share plan. Any method, arrangement, or procedure that otherwise meets this definition in which the purchaser’s total contractual financial obligation exceeds three thousand dollars ($3,000) per any individual, recurring time-share period, shall be regulated as a time-share plan in accordance with this chapter. For purposes of determining the purchaser’s total contractual financial obligation, amounts to be paid as a result
of renewals and options to renew shall be included in the term except for the following: (1) amounts to be paid as a result of any optional renewal that a purchaser, in his or her sole discretion may elect to exercise, (2) amounts to be paid as a result of any automatic renewal in which the purchaser has a right to terminate during the renewal period at any time and receive a pro rata refund for the remaining unexpired renewal term, or (3) amounts to be paid as a result of an automatic renewal in which the purchaser receives a written notice no less than 30 nor more than 90 days prior to the date of renewal informing the purchaser of the right to terminate prior to the date of renewal. Notwithstanding these exceptions, if the contractual financial obligation exceeds three thousand dollars ($3,000) for any three-year period of any renewal term, amounts to be paid as a result of that renewal shall be
included in determining the purchaser’s total contractual financial obligation.
(m) “Incidental benefit” is an accommodation, product, service, discount, or other benefit, other than an exchange program, that is offered to a prospective purchaser of a time-share interest prior to the end of the rescission period set forth in Section 11238, the continuing availability of which for the use and enjoyment of owners of time-share interests in the time-share plan is limited to a term of not more than three years, subject to renewal or extension. The term shall not include an offer of the use of the accommodation, product, service, discount, or other benefit on a free or discounted one-time basis.
(n) “Managing entity” means the person who undertakes the duties, responsibilities, and
obligations of the management of a time-share plan.
(o) “Offer” means any inducement, solicitation, or other attempt, whether by marketing, advertisement, oral or written presentation, or any other means, to encourage a person to acquire a time-share interest in a time-share plan, other than as security for an obligation.
(p) “Person” means a natural person, corporation, limited liability company, partnership, joint venture, association, estate, trust, government, governmental subdivision or agency, or other legal entity, or any combination thereof.
(q) “Promotion” means a plan or device, including one involving the possibility of a prospective purchaser receiving a vacation, discount vacation, gift, or prize, used
by a developer, or an agent, independent contractor, or employee of any of the same on behalf of the developer, in connection with the offering and sale of time-share interests in a time-share plan.
(r) “Public report” means a preliminary public report, conditional public report, final public report, or other such disclosure document authorized for use in connection with the offering of time-share interests pursuant to this chapter.
(s) “Purchaser” means any person, other than a developer, who by means of a voluntary transfer for consideration acquires a legal or equitable interest in a time-share plan other than as security for an obligation.
(t) “Purchase contract” means a document pursuant to which a developer
becomes legally obligated to sell, and a purchaser becomes legally obligated to buy, a time-share interest.
(u) “Reservation system” means the method, arrangement, or procedure by which a purchaser, in order to reserve the use or occupancy of any accommodation of a multisite time-share plan for one or more time-share periods, is required to compete with other purchasers in the same multisite time-share plan, regardless of whether the reservation system is operated and maintained by the multisite time-share plan managing entity, an exchange company, or any other person. If a purchaser is required to use an exchange program as the purchaser’s principal means of obtaining the right to use and occupy accommodations in a multisite time-share plan, that arrangement shall be deemed a reservation system. When an exchange company utilizes a mechanism
for the exchange of use of time-share periods among members of an exchange program, that utilization is not a reservation system of a multisite time-share plan.
(v) “Short-term product” means the right to use accommodations on a one-time or recurring basis for a period or periods not to exceed 30 days per stay and for a term of three years or less, and that includes an agreement that all or a portion of the consideration paid by a person for the short-term product will be applied to or credited against the price of a future purchase of a time-share interest or that the cost of a future purchase of a time-share interest will be fixed or locked-in at a specified price.
(w) “Time-share instrument” means one or more documents, by whatever name denominated, creating or governing the operation
of a time-share plan and includes the declaration dedicating accommodations to the time-share plan.
(x) “Time-share interest” means and includes either of the following:
(1) A “time-share estate,” which is the right to occupy a time-share property, coupled with a freehold estate or an estate for years with a future interest in a time-share property or a specified portion thereof.
(2) A “time-share use,” which is the right to occupy a time-share property, which right is neither coupled with a freehold interest, nor coupled with an estate for years with a future interest, in a time-share property.
(y) “Time-share period” means the period or periods of time when
the purchaser of a time-share plan is afforded the opportunity to use the accommodations of a time-share plan.
(z) “Time-share plan” means any arrangement, plan, scheme, or similar device, other than an exchange program, whether by membership agreement, sale, lease, deed, license, right to use agreement, or by any other means, whereby a purchaser, in exchange for consideration, receives ownership rights in or the right to use accommodations for a period of time less than a full year during any given year, on a recurring basis for more than one year, but not necessarily for consecutive years. A time-share plan may be either of the following:
(1) A “single site time-share plan” that is the right to use accommodations at a single time-share property.
(2) A “multisite time-share plan” that includes either of the following:
(A) A “specific time-share interest” that is the right to use accommodations at a specific time-share property together with use rights in accommodations at one or more other component sites created by or acquired through the time-share plan’s reservation system.
(B) A “nonspecific time-share interest” that is the right to use accommodations at more than one component site created by or acquired through the time-share plan’s reservation system, but including no specific right to use any particular accommodations.
(aa) “Time-share property” means one or more accommodations subject to
the same time-share instrument, together with any other property or rights to property appurtenant to those accommodations.
SEC. 58.
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:(1) Delegation of authority to the managing entity to carry out the duties and obligations of the association or the developer to the time-share interest owners.
(2) Authority of the managing entity to use subagents, if applicable.
(3) A term of not more than five years with automatic renewals for successive
three-year periods after expiration of the first term unless the association by the vote or written assent of a majority of the voting power residing in members other than the developer determines not to renew the contract and gives appropriate notice of that determination. However, in those time-share plans where the association is controlled by owners other than the developer, the management agreement shall not be subject to the term limitations set forth in this section, and any longer term shall not be grounds for denial of a public report, unless the longer term of the management contract is the result of the developer exercising control.
(4) Termination for cause at any time by the governing body of the association. If the single site time-share plan or the component site of a multisite time-share plan is located within the state, then that
termination provision shall include a provision for arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association if requested by or on behalf of the managing entity.
(5) Not less than 90 days’ written notice to the association of the intention of the managing entity to resign.
(6) Enumeration of the powers and duties of the managing entity in the operation of the time-share plan and the maintenance of the accommodations comprising the time-share plan.
(7) Compensation to be paid to the managing entity.
(8) Records to be maintained by the managing entity.
(9) A
requirement that the managing entity provide a policy for fidelity insurance or bond for the activities of the managing entity, payable to the association that shall be in an amount no less than the sum of the largest amount of funds expected to be held or
controlled by the managing entity at any time during the year, pursuant to the budget. The commissioner may provide a reduction in the insurance policy or bond amounts required by this paragraph.
(10) Errors and omissions insurance coverage for the managing entity, if available.
(11) Delineation of the authority of the managing entity and persons authorized by the managing entity to enter into accommodations of the time-share plan for the purpose of cleaning, maid service, maintenance and repair including emergency repairs, and for the purpose of abating a nuisance or dangerous, unlawful, or prohibited activity being conducted in the accommodation.
(12) Description of the duties of the managing entity, including,
but not limited to, the following:
(A) Collection of all assessments as provided in the time-share instruments.
(B) Maintenance of all books and records concerning the time-share plan.
(C) Scheduling occupancy of accommodations, when purchasers are not entitled to use specific time-share periods, so that all purchasers will be provided the opportunity for use and possession of the accommodations of the time-share plan, that they have purchased.
(D) Providing for the annual meeting of the association of owners.
(E) Performing any other functions and duties related to the maintenance
of the accommodations or that are required by the time-share instrument.
(b) Any written management agreement in existence as of the effective date of this chapter shall not be subject to the term limitations set forth above.
(c) For single site time-share plans and component sites of a multisite time-share plan located outside of the state, the time-share instruments shall include the subject matter set forth in subdivision (a). The time-share instruments shall be in compliance with the applicable laws of the state or jurisdiction in which the time-share property or component site is located, and if a conflict exists between laws of the situs state and the requirements set forth in this section, the law of the situs state shall control. If the time-share instruments provide for
the matters contained in subdivision (a), the time-share instruments shall be deemed to be in compliance with the requirements of subdivision (a) and the developer shall not be required to make revisions in order to comply with subdivision (a) and this subdivision.
