Bill Text: CA SB1342 | 2011-2012 | Regular Session | Chaptered
Bill Title: Counties: recording: real estate instruments.
Spectrum: Partisan Bill (Republican 2-0)
Status: (Passed) 2012-07-13 - Chaptered by Secretary of State. Chapter 104, Statutes of 2012. [SB1342 Detail]
Download: California-2011-SB1342-Chaptered.html
BILL NUMBER: SB 1342 CHAPTERED
BILL TEXT
CHAPTER 104
FILED WITH SECRETARY OF STATE JULY 13, 2012
APPROVED BY GOVERNOR JULY 13, 2012
PASSED THE SENATE JUNE 28, 2012
PASSED THE ASSEMBLY JUNE 25, 2012
AMENDED IN ASSEMBLY JUNE 7, 2012
AMENDED IN SENATE MAY 8, 2012
AMENDED IN SENATE APRIL 24, 2012
INTRODUCED BY Senator Emmerson
(Coauthor: Assembly Member Gorell)
FEBRUARY 24, 2012
An act to amend Section 27388 of the Government Code, relating to
local government.
LEGISLATIVE COUNSEL'S DIGEST
SB 1342, Emmerson. Counties: recording: real estate instruments.
Existing law authorizes the board of supervisors to adopt, by
resolution, a fee of up to $3 for each recording of a real estate
instrument, paper, or notice required or permitted by law to be
recorded, except as specified. Existing law defines the term "real
estate instrument" to mean a deed of trust, an assignment of trust, a
reconveyance, a request for notice, a notice of default, a
substitution of trustee, a notice of trustee sale, or a notice of
rescission of declaration of default. Existing law requires a
district attorney in a participating county to annually submit a
report to the Legislative Analyst's Office on the effectiveness of
deterring, investigating, and prosecuting real estate fraud crimes
funded by the recording fee, and requires the Legislative Analyst's
Office to report to the Legislature on these efforts, as specified.
This bill would increase the highest fee that may be charged to
$10 and would also include in the definition of "real estate
instrument" an amended deed of trust, an abstract of judgment, an
affidavit, an assignment of rents, an assignment of a lease, a
construction trust deed, covenants, conditions, and restrictions
(CC&Rs), a declaration of homestead, an easement, a lease, a lien, a
lot line adjustment, a mechanics lien, a modification for deed of
trust, a notice of completion, a quitclaim deed, a subordination
agreement, a trustee's deed upon sale, and any Uniform Commercial
Code amendment, assignment, continuation, statement, or termination.
The bill would repeal the specific reporting requirement from county
district attorneys to the Legislative Analyst's Office and from the
Legislative Analyst's Office to the Legislature.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares all of the
following:
(a) The current recording fee collected to fund the Real Estate
Fraud Prosecution Trust Fund is insufficient to adequately fund real
estate fraud prosecutions and needs to be increased.
(b) Greater specificity is needed with regard to the types of real
estate instruments to which the current recording fee may be
applied.
(c) In order to promote housing and home ownership opportunities,
the recording fee imposed by this act should not be applied to any
recordings made in connection with a sale of real property.
Purchasing housing is likely the largest purchase made by
Californians, and it is the intent of this act to not increase
transaction costs associated with those transfers.
SEC. 2. Section 27388 of the Government Code is amended to read:
27388. (a) In addition to any other recording fees specified in
this code, upon the adoption of a resolution by the county board of
supervisors, a fee of up to ten dollars ($10) shall be paid at the
time of recording of every real estate instrument, paper, or notice
required or permitted by law to be recorded within that county,
except those expressly exempted from payment of recording fees. For
purposes of this section, "real estate instrument" means a deed of
trust, an assignment of deed of trust, an amended deed of trust, an
abstract of judgment, an affidavit, an assignment of rents, an
assignment of a lease, a construction trust deed, covenants,
conditions, and restrictions (CC&Rs), a declaration of homestead, an
easement, a lease, a lien, a lot line adjustment, a mechanics lien, a
modification for deed of trust, a notice of completion, a quitclaim
deed, a subordination agreement, a release, a reconveyance, a request
for notice, a notice of default, a substitution of trustee, a notice
of trustee sale, a trustee's deed upon sale, or a notice of
rescission of declaration of default, or any Uniform Commercial Code
amendment, assignment, continuation, statement, or termination. "Real
estate instrument" does not include any deed, instrument, or writing
recorded in connection with a transfer subject to the imposition of
a documentary transfer tax as defined in Section 11911 of the Revenue
and Taxation Code. The fees, after deduction of any actual and
necessary administrative costs incurred by the county recorder in
carrying out this section, shall be paid quarterly to the county
auditor or director of finance, to be placed in the Real Estate Fraud
Prosecution Trust Fund. The amount deducted for administrative costs
shall not exceed 10 percent of the fees paid pursuant to this
section.
(b) Money placed in the Real Estate Fraud Prosecution Trust Fund
shall be expended to fund programs to enhance the capacity of local
police and prosecutors to deter, investigate, and prosecute real
estate fraud crimes. After deduction of the actual and necessary
administrative costs referred to in subdivision (a), 60 percent of
the funds shall be distributed to district attorneys subject to
review pursuant to subdivision (d), and 40 percent of the funds shall
be distributed to local law enforcement agencies within the county
in accordance with subdivision (c). In those counties where the
investigation of real estate fraud is done exclusively by the
district attorney, after deduction of the actual and necessary
administrative costs referred to in subdivision (a), 100 percent of
the funds shall be distributed to the district attorney, subject to
review pursuant to subdivision (d). A portion of the funds may be
directly allocated to the county recorder to support county recorder
fraud prevention programs, including, but not limited to, the fraud
prevention program provided for in Section 27297.7. Prior to
establishing or increasing fees pursuant to this section, the board
of supervisors may consider support for county recorder fraud
prevention programs. The funds so distributed shall be expended for
the exclusive purpose of deterring, investigating, and prosecuting
real estate fraud crimes.
(c) The county auditor or director of finance shall distribute
funds in the Real Estate Fraud Prosecution Trust Fund to eligible law
enforcement agencies within the county pursuant to subdivision (b),
as determined by a Real Estate Fraud Prosecution Trust Fund Committee
composed of the district attorney, the county chief administrative
officer, the chief officer responsible for consumer protection within
the county, and the chief law enforcement officer of one law
enforcement agency receiving funding from the Real Estate Fraud
Prosecution Trust Fund, the latter being selected by a majority of
the other three members of the committee. The chief law enforcement
officer shall be a nonvoting member of the committee and shall serve
a one-year term, which may be renewed. Members may appoint
representatives of their offices to serve on the committee. If a
county lacks a chief officer responsible for consumer protection, the
county board of supervisors may appoint an appropriate
representative to serve on the committee. The committee shall
establish and publish deadlines and written procedures for local law
enforcement agencies within the county to apply for the use of funds
and shall review applications and make determinations by majority
vote as to the award of funds using the following criteria:
(1) Each law enforcement agency that seeks funds shall submit a
written application to the committee setting forth in detail the
agency's proposed use of the funds.
(2) In order to qualify for receipt of funds, each law enforcement
agency submitting an application shall provide written evidence that
the agency either:
(A) Has a unit, division, or section devoted to the investigation
or prosecution of real estate fraud, or both, and the unit, division,
or section has been in existence for at least one year prior to the
application date.
(B) Has on a regular basis, during the three years immediately
preceding the application date, accepted for investigation or
prosecution, or both, and assigned to specific persons employed by
the agency, cases of suspected real estate fraud, and actively
investigated and prosecuted those cases.
(3) The committee's determination to award funds to a law
enforcement agency shall be based on, but not be limited to, (A) the
number of real estate fraud cases filed in the prior year; (B) the
number of real estate fraud cases investigated in the prior year; (C)
the number of victims involved in the cases filed; and (D) the total
aggregated monetary loss suffered by victims, including individuals,
associations, institutions, or corporations, as a result of the real
estate fraud cases filed, and those under active investigation by
that law enforcement agency.
(4) Each law enforcement agency that, pursuant to this section,
has been awarded funds in the previous year, upon reapplication for
funds to the committee in each successive year, in addition to any
information the committee may require in paragraph (3), shall be
required to submit a detailed accounting of funds received and
expended in the prior year. The accounting shall include (A) the
amount of funds received and expended; (B) the uses to which those
funds were put, including payment of salaries and expenses, purchase
of equipment and supplies, and other expenditures by type; (C) the
number of filed complaints, investigations, arrests, and convictions
that resulted from the expenditure of the funds; and (D) other
relevant information the committee may reasonably require.
(d) The county board of supervisors shall annually review the
effectiveness of the district attorney in deterring, investigating,
and prosecuting real estate fraud crimes based upon information
provided by the district attorney in an annual report. The district
attorney shall submit the annual report to the board on or before
September 1 of each year.
(e) A county shall not expend funds held in that county's Real
Estate Fraud Prosecution Trust Fund until the county's
auditor-controller verifies that the county's district attorney has
submitted an annual report for the county's most recent full fiscal
year pursuant to the requirements of subdivision (d).
(f) The intent of the Legislature in enacting this section is to
have an impact on real estate fraud involving the largest number of
victims. To the extent possible, an emphasis should be placed on
fraud against individuals whose residences are in danger of, or are
in, foreclosure as defined in subdivision (b) of Section 1695.1 of
the Civil Code. Case filing decisions continue to be at the
discretion of the prosecutor.
(g) A district attorney's office or a local enforcement agency
that has undertaken investigations and prosecutions that will
continue into a subsequent program year may receive nonexpended funds
from the previous fiscal year subsequent to the annual submission of
information detailing the accounting of funds received and expended
in the prior year.
(h) No money collected pursuant to this section shall be expended
to offset a reduction in any other source of funds. Funds from the
Real Estate Fraud Prosecution Trust Fund shall be used only in
connection with criminal investigations or prosecutions involving
recorded real estate documents.
