BILL NUMBER: SB 6 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 11, 2011
AMENDED IN SENATE MARCH 25, 2011
AMENDED IN SENATE FEBRUARY 18, 2011
INTRODUCED BY Senators Calderon and Vargas
DECEMBER 6, 2010
An act to amend Sections 10176 and 11345.4 of, and to add Sections
10177.3 and 11345.7 to, the Business and Professions Code, and to
amend Section 1090.5 of the Civil Code, relating to real estate.
LEGISLATIVE COUNSEL'S DIGEST
SB 6, as amended, Calderon. Real estate: appraisal and valuation.
Existing law, the Real Estate Law, provides for the licensure and
regulation of real estate brokers and real estate salespersons by the
Real Estate Commissioner and makes a willful violation of the act a
crime. Existing law authorizes the commissioner to temporarily
suspend or permanently revoke a real estate license when the licensee
has been guilty of generating an inaccurate opinion of the value of
residential real property in connection with a certain real estate
transaction in order to, among other things, acquire a financial or
business advantage that directly results from the inaccurate opinion
of value.
This bill would delete that provision and would instead prohibit
a licensee from providing an opinion of value of real
property if his or her compensation is dependent on or affected by
that opinion of value or if he or she has any interest in the
property or transaction. The bill would also prohibit a licensee who
offers or provides these opinions, for compensation or in expectation
of compensation, from knowingly or intentionally
misrepresenting the value of real property. The bill would also
prohibit a licensee that provides an opinion of value of real
property related to certain mortgage loan transactions
from having a specified interest in the property.
Existing law, the Real Estate Appraisers' Licensing and
Certification Law, provides for the licensure and regulation of real
estate appraisers and appraisal management companies and makes a
willful violation of the law a crime. Existing law prohibits an
appraisal management company from improperly influencing any
appraisal by engaging in certain activities.
This bill would revise that provision by prohibiting an appraisal
management company from improperly influencing any appraisal through
coercion, extortion, inducement, collusion, bribery, intimidation,
compensation, or instruction. The bill would specifically prohibit
certain acts, including, but not limited to, seeking to influence an
appraiser to report a minimum or maximum value for specified
property, implying to an appraiser that his or her retention depends
on his or her estimate of the real property value, excluding an
appraiser from future engagement because he or she reported a value
that does not meet or exceed a certain threshold, and conditioning
compensation paid to an appraiser on consummation of the real estate
transaction.
The bill would also prohibit a person or entity preparing an
appraisal or performing appraisal management functions for certain
mortgage loan transactions from having a specified interest in the
property or the transaction for which the appraisal or functions are
performed.
Existing law prohibits a person with an interest in a real estate
transaction involving an appraisal from improperly influencing or
attempting to improperly influence, through coercion, extortion, or
bribery, the development, reporting, result, or review of a real
estate appraisal sought in connection with a mortgage loan, and
specifies that a violation of this provision by a person licensed
under a state licensing law also constitutes a violation of that law.
This bill would instead make that provision applicable to a
valuation and would define a valuation as an estimate of the value of
real property in written or electronic form, other than one produced
solely by an automated model or system. The bill would also
enumerate specified prohibited acts under that provision, including,
but not limited to, seeking to influence a valuation preparer to
report a minimum or maximum value for specified property, implying to
a valuation preparer that his or her retention depends on his or her
estimate of the real property value, excluding a valuation preparer
from future engagement because he or she reported a value that does
not meet or exceed a certain threshold, and conditioning compensation
paid to a valuation preparer on consummation of the real estate
transaction.
Because a willful violation of the bill's requirements would be a
crime, the bill would impose a state-mandated local program.
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.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. 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 real estate agents or salespersons.
(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 employing 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 employer of the licensee the
full amount of the licensee's compensation, commission or profit
under any agreement authorizing or employing 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 employing 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 employer the full amount of the
licensee's profit and obtains the written consent of the employer
approving the amount of the profit.
(i) Any other conduct, whether of the same or a different
character than specified in this section, which constitutes fraud or
dishonest dealing.
(j) Obtaining the signature of a prospective purchaser to an
agreement which provides that the prospective purchaser 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.
SEC. 2. Section 10177.3 is added to the Business and Professions
Code, to read:
10177.3. (a) No licensee shall offer or provide an
opinion of value of real property, for compensation or in expectation
of compensation, if his or her compensation is dependent on or
affected by the opinion of value of real property reached by that
licensee.
(b) No licensee
that offers or provides an opinion of value of real property, for
compensation or in expectation of compensation, shall
knowingly or intentionally misrepresent the value of real property.
(b) No licensee that offers or provides an opinion of value of
real property that is used as the basis for an origination,
refinancing, or modification of a mortgage loan shall have an
interest in that property, within the meaning of Section 226.42(d) of
Title 12 of the Code of Federal Regulations.
SEC. 3. Section 11345.4 of the Business and Professions Code is
amended to read:
11345.4. No person or entity acting in the capacity of an
appraisal management company shall improperly influence or attempt to
improperly influence the development, reporting, result, or review
of any appraisal through coercion, extortion, inducement, collusion,
bribery, intimidation, compensation, or instruction. Prohibited acts
include, but are not limited to, the following:
(a) Seeking to influence an appraiser to report a minimum or
maximum value for the property being valued. Such influence may
include, but is not limited to, the following:
(1) Requesting that an appraiser provide a preliminary estimate or
opinion of value for one or more properties prior to entering into a
contract with that appraiser for appraisal services related to that
property or properties.
(2) Conditioning whether to hire an appraiser based on an
expectation of the value conclusion likely to be returned by that
appraiser.
(3) Conditioning the amount of an appraiser's compensation on the
value conclusion returned by that appraiser.
(4) Providing an appraiser with an anticipated, estimated,
encouraged, or desired valuation prior to their completion of an
appraisal.
(b) Withholding or threatening to withhold timely payment to an
appraiser because the person does not return a value at or above a
certain amount.
(c) Implying to an appraiser that current or future retention of
that appraiser depends on the amount at which the appraiser estimates
the value of real property.
(d) Excluding an appraiser who prepares an appraisal from
consideration for future engagement because the appraiser reports a
value that does not meet or exceed a predetermined threshold.
(e) Conditioning the compensation paid to an appraiser on
consummation of the real estate transaction for which the appraisal
is prepared.
(f) Requesting the payment of compensation from an appraiser for
purposes of enabling that appraiser to achieve higher priority in the
assignment of appraisal business.
(g) Nothing in this section prohibits a person or entity acting in
the capacity of an appraisal management company from doing any of
the following:
(1) Asking an appraiser to do any of the following:
(A) Consider additional, appropriate property information,
including information about comparable properties.
(B) Provide further detail, substantiation, or explanation for the
appraiser's value conclusion.
(C) Correct errors in an appraisal report.
(2) Obtaining multiple valuations, for purposes of selecting the
most reliable valuation.
(3) Withholding compensation due to breach of contract or
substandard performance of services.
(4) Providing a copy of the sales contract in connection with a
purchase transaction.
SEC. 4. Section 11345.7 is added to the Business and Professions
Code, to read:
11345.7. No person or entity preparing an appraisal or performing
appraisal management functions in connection with the origination,
modification, or refinancing of a mortgage loan shall have a direct
or indirect interest, financial or otherwise, in the property or the
transaction, within the meaning of Section 226.42(d) of Title 12
of of the Code of Federal Regulations, for which the appraisal
or appraisal management functions are performed.
SEC. 5. Section 1090.5 of the Civil Code is amended to read:
1090.5. (a) No person with an interest in a real estate
transaction involving a valuation shall improperly influence or
attempt to improperly influence the development, reporting, result,
or review of that valuation, through coercion, extortion, bribery,
intimidation, compensation, or instruction. For purposes of this
section, a valuation is defined as an estimate of the value of real
property in written or electronic form, other than one produced
solely by an automated valuation model or system. Prohibited acts
include, but are not limited to, the following:
(1) Seeking to influence a person who prepares a valuation to
report a minimum or maximum value for the property being valued. Such
influence may include, but is not limited to:
(A) Requesting that a person provide a preliminary estimate or
opinion of value prior to entering into a contract with that person
for valuation services.
(B) Conditioning whether to hire a person based on an expectation
of the value conclusion likely to be returned by that person.
(C) Conditioning the amount of a person's compensation on the
value conclusion returned by that person.
(D) Providing to a person an anticipated, estimated, encouraged,
or desired valuation prior to their completion of a valuation.
(2) Withholding or threatening to withhold timely payment to a
person or entity that prepares a valuation, or provides valuation
management functions, because that person or entity does not return a
value at or above a certain amount.
(3) Implying to a person who prepares a valuation that current or
future retention of that person depends on the amount at which the
person estimates the value of real property.
(4) Excluding a person who prepares a valuation from consideration
for future engagement because the person reports a value that does
not meet or exceed a predetermined threshold.
(5) Conditioning the compensation paid to a person who prepares a
valuation on consummation of the real estate transaction for which
the valuation is prepared.
(6) Requesting the payment of compensation to achieve higher
priority in the assignment of valuation business.
(b) Subdivision (a) does not prohibit a person with an interest in
a real estate transaction from doing any of the following:
(1) Asking a person who performs a valuation to do any of the
following:
(A) Consider additional, appropriate property information,
including information about comparable properties.
(B) Provide further detail, substantiation, or explanation for the
person's value conclusion.
(C) Correct errors in a valuation report.
(2) Obtaining multiple valuations, for purposes of selecting the
most reliable valuation.
(3) Withholding compensation due to breach of contract or
substandard performance of services.
(4) Providing a copy of the sales contract in connection with a
purchase transaction.
(c) If a person who violates this section is licensed or
registered under any state licensing or registration law and the
violation occurs within the course and scope of the person's duties
as a licensee or registrant, the violation shall be deemed a
violation of that law.
(d) Nothing in this section shall be construed to authorize
communications that are otherwise prohibited under existing law.
SEC. 6. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.