CALIFORNIA ASSOCIATION OF REALTORS® TO ISSUE NEW AND REVISED FORMS ON NOVEMBER26,2012

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BY: KELLY A. NEAVEL, ATTORNEY
CASEY MCINTOSH, PARALEGAL, researched and contributed to these articles.

Once again, forms were a hot topic at the California Association of REALTORS® (C.A.R.) Fall Business Meetings in Anaheim. This year there are 43 new and revised forms set to be released on November 26, 2012. While C.A.R.’s website has a list and brief overview of these forms, below is a more comprehensive review of the new and some of the revised forms that may be of importance or interest.

New Forms

In response to the ever-changing climate of real estate transaction, C.A.R. created the following 15 new forms for release in November:

The two (2) new agent broker forms:

Additional Agent Acknowledgment and Additional Broker Acknowledgement: These two forms are addendums to the California Residential Purchase Agreement (RPA). They acknowledge that both the buyer and seller understand there are two agents from the same company or two brokerages working on the transaction and when one  licensee/broker is named in a document, the other licensee/broker is also deemed to be named.

The next five (5) forms were derived from the Purchase Agreement Addendum:

Assumed Financing Addendum: This form is used if the Buyer will be taking over the Seller’s existing loan. This addendum to the RPA gives both the buyer and seller specific deadlines by which to have documents to the other person or to the lender. It also acknowledges that the assumed financing is a contingency of the RPA.

Back-Up Offer Addendum: This addendum to the RPA or Counter Offer indicates what position the potential Buyer’s back-up offer is in, as well as the terms of that back-up offer, including time periods.

Court Confirmation Addendum: In certain instances, such as bankruptcy, probate, guardianship, or receivership, the purchase of real property may require ratification by the Court. In such cases, this form has been drafted to provide deadlines and recommendations to the buyer.

Seller in Possession Addendum: This form was created to define the terms of a seller remaining in the property after it is purchased by the buyer. It is intended for short-term occupancy only (e.g. less than 30 days), otherwise, the Residential Lease After Sale form needs to be used. The SIP does not create a landlord-tenant relationship between the buyer and seller, though. The seller is responsible for the maintenance of the property and continued payment of the utilities (except those specified), in addition to paying an agreed-upon sum for his or her continued possession.

Tenant in Possession: If a property is sold to a buyer with a tenant already in the property, the buyer can agree to take the property subject to the rights of the existing tenants. This form defines the terms of that agreement.

There are three (3) new general forms:

Landlord in Default Addendum: Enacted in September 2012, Senate Bill 1191 amends California Civil Code Section 2924.85. Beginning January 1, 2013 until January 1, 2018, landlords who offer for rent a single-family or multi-family dwelling not exceeding four units who have received a notice of default on the property that has not been rescinded, must disclose the default to potential tenants prior to executing a lease agreement for the property. If the landlord violates these provisions, the tenant is entitled to void the lease. If the tenant chooses to void the lease and vacate the property, he or she is entitled to recover from the landlord either one month’s rent or twice the amount of actual damages, (whichever is greater), as well as any prepaid rent. However, the tenant may also elect to stay in the property and honor the lease, in which case he or she is entitled to deduct a total amount equal to one month’s rent from future rent obligations.

The written notice to the tenant must state as follows:

The foreclosure process has begun on this property, and this property may be sold at foreclosure. If you rent this property, and a foreclosure sale occurs, the sale may affect your right to continue to live in this property in the future. Your tenancy may continue after the sale. The new owner must honor the lease unless the new owner will occupy
the property as a primary residence, or in other limited circumstances. Also, in some
cases and in some cities with a “just cause for eviction” law, you may not have to
move at all. In order for the new owner to evict you, the new owner must provide you
with at least 90 days’ written eviction notice in most cases.

Lastly, a property manager is exempt from l ability for failing to provide the written
disclosure notice unless the landlord notified the property manager of the notice of default and directed him or her in writing to deliver the written disclosure to the tenant.

In compliance with the new regulations imposed by Senate Bill 1191 and Civil Code Section 2924.85, the California Association of REALTORS® created the Landlord in Default Addendum to be provided to potential tenant prior to signing the lease.

Parking & Storage Disclosure: For a property located in a multi-unit building, this form serves as a sort of disclaimer and acknowledgement. The form states that the governing documents for the Property must contain a description and drawing of all assigned parking and storage spaces. However, these drawings may not be accurate and there may be  differences between the drawing and physical locations of the parking spaces and storage areas. By signing the form, the Buyer acknowledges that he or she has personally inspected the parking spaces and storage areas and, if any discrepancies or issues exist, they are not material to the purchase. This form is also made in connection with the RPA.

FHA/VA Amendatory Clause: This form is to be used as an addendum to the RPA in accordance with HUD/FHA or VA requirements. Essentially, the form states that the Buyer will not incur any penalty through loss of his or her deposit nor will he or she have to  complete the purchase should the property not appraise for the amount listed on the form. This is important when the Buyer is making use of a FHA or VA loan since HUD will only insure up to the appraised amount. Pursuant to the form, it is up to the buyer to satisfy him- or herself that the price and condition of the property are acceptable.

There are two (2) new listing forms:

Trust Listing Agreement/Vacant Land Listing Agreement: The Trust Listing Agreement is similar to the standard Listing Agreement with the exception that the “seller” is the trustee of the trust that is listed. The signature line also reflects that the property is being sold by the trust. The Vacant Land Listing Agreement has been separated from the Commercial, Residential, and Vacant Land Listing Agreement and made into its own form.

There are three (3) new signature forms:

Power of Attorney Signature Addendum: This addendum to the RPA identifies a person who has the ability to sign a contract for the sale or purchase of real property as that individual’s Power of Attorney. However, it is important to note that the Power of Attorney must already have been prepared and executed prior to the use of the Addendum.

Probate Signature Addendum: Much like the Power of Attorney Signature Addendum, this form identifies who can sign a contract for the sale of real property on behalf of an estate pursuant to the Probate Code.

Trust Signature Addendum: The last signature form is the Trust Signature Addendum which is used to identify the person who can sign a real estate contract under the authority of a Trust.

Revised Forms

In addition to the 15 new forms, there are also 28 forms that C.A.R. has revised for  November release, including the Residential Listing Agreement, Transfer Disclosure Statement, and Buyer Representation Agreement. Below is a short description of three (3) forms worth noting:

Commission Agreement: This form has been revised to include a date by which the Principal must accept an offer in order to be compensated.

Contingency for Sale or Purchase of Other Property: This form mainly affects Residential Purchase Agreements or Counter Offers where the purchase of the seller’s property is contingent on the sale of the buyer’s property or the seller’s purchase of a replacement property. The form has been revised from the 2008 version to clarify a buyer’s and seller’s rights should the property at issue fall out of escrow.

Short Sale Information Advisory: In July 2012, Senate Bill 1069 was enacted, effectually
expanding California’s Anti-Deficiency Protections. In California, many mortgages are non-recourse loans, meaning if a borrower’s real property is underwater and he or she defaults, the lender cannot pursue the borrower for any deficiency that results. However, if the borrower were to refinance, the resulting loan may not be non-recourse and the lender may be able to pursue the borrower should he or she default and the lender not receive the full amount of the loan. SB 1069 amends Code of Civil Procedure Section 580b to state that no deficiency judgment shall lie on any loan, refinance, or other credit transaction which is used to refinance a purchase money loan, or subsequent refinances of a purchase money loan, except under certain, specified circumstances. These provisions would apply to credit transactions executed on or after January 1, 2013.

In compliance with the revisions to Code of Civil Procedure Section 580b, C.A.R. also
revised Section 4 on the Short Sale Information Advisory, which advises not only regarding the short sale process but also alternatives to short sales. As a real estate practitioner, it is important to remember that you cannot and should not give advice regarding short sales. If a buyer or seller you are representing has questions about the process, be sure to refer him or her to competent legal counsel for advice. As with any of the forms used in a real estate transaction, do not risk your license simply because you “think” you know the answer.

As mentioned above, C.A.R. provides a quick summary chart of all of the revised forms being released in November.

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October 2012: NEW APPELLATE COURT DECISION: CALIFORNIA CORPORATE BROKERS NOT LIABLE TO THIRD PARTIES

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NEW APPELLATE COURT DECISION: CALIFORNIA CORPORATE BROKERS NOT LIABLE TO THIRD PARTIES

BY: TAMAR GABRIEL,ATTORNEY AT LAW

A recent case decided by the California Court of Appeal will have an effect on how the scope of a California Corporate Broker’s liability is defined. In Sandler v. Sanchez, the appellate court’s ruling limited liability of a designated officer (sometimes referred to as “corporate brokers” or “brokers of record”) to the corporation, not to third parties.

In this case, the Sandlers, along with another party, sued 765 South Windsor, LLC, Gold Coast Financial, a real estate brokerage corporation, and Carlos Sanchez, Gold Coast’s designated officer/broker. According to the allegations in the operative third amended complaint, Keith Desser, a real estate salesman, president, and sole shareholder of Gold Coast and a principal of South Windsor, solicited the Sandlers to loan $600,000 to South Windsor to finance improvements to an eight-unit apartment building for the purpose of converting the units to condominiums. Desser, however, failed to reveal $600,000 was not enough money to do the improvements and that there was not enough equity in the property to secure their loan, which was a junior loan. When the primary lender refused to extend the first note, which was imminently due, the property was foreclosed by the holder of the first trust deed, which left the Sandler’s note unsecured. In addition, Desser used the $300,000 of the loan proceeds, which he obtained by amending the escrow instructions, for his personal expenses.

The Sandler’s third amended complaint asserted a cause of action for breach of fiduciary duty against Sanchez. Although the complaint did not allege Sanchez played any role in the transaction, or even knew of it, the Sandlers alleged that Sanchez, as Gold Coast’s designated officer, owed them a duty to supervise Gold Coast’s employees, including Desser, in accordance with California Business and Professions Code Section 10159.2. The Sandlers alleged that had Sanchez fulfilled his duty to supervise, he would have learned about Desser’s material misrepresentations and either disclosed them to the parties or cancelled the loan transaction. The Sandler’s complaint also alleged Desser was Sanchez’s agent and Sanchez, as Desser’s principal, is liable for Desser’s tortuous acts committed within the scope of that agency.

Sanchez demurred to the third amended complaint, arguing he owed no duty, as a fiduciary or otherwise, to the Sandler parties. Sanchez argued that while a claim for breach of fiduciary duty would lie against Gold Coast and Desser, there can be no liability against him as a matter of law absent allegations he authorized or personally participated in the wrongful conduct. He also argued he was not Desser’s principal and, therefore, could not be held vicariously liable for Desser’s misconduct. The trial court agreed with Sanchez and sustained his demurrer to the third amended complaint without leave to amend. The court thereafter signed an Order dismissing the action against Sanchez. On appeal from an order dismissing an action after the sustaining of the demurrer, the appellate court independently reviewed the case and ultimately agreed with the trial court’s decision.

Gold Coast Financial is a corporation. In California, a corporation can be a licensed real estate broker. In order to form such an entity, the corporation must designate a licensed individual broker as the entity’s designated officer. Sanchez was the designated officer of Gold Coast Financial. As such, pursuant to California Business and Professions Code Section 10159.2, he was “responsible for the supervision and control of the activities conducted on behalf of the corporation by its officers and employees…including the supervision of salespersons licensed to the corporation…” Therefore, Sanchez was responsible for supervising Desser (even though salesperson Desser also happened to be the sole shareholder of Gold Coast). The court reviewed the governing law. It noted that Section 10159.2 imposes a duty on the designated officer to supervise the corporate broker’s employees. However, the main issue in this case was to whom is that duty owed? Here, although Section 10159.2 imposes a duty of supervision on the designated officer of the corporate broker, it does not, on its face, expressly state to whom tat duty is owed. After reviewing other cases as well as legislative history that brought this sction into being, the court concluded that smilar to a section governing contractors, the rlevant code section was “regulatory and disciplinary in nature. It did not create a duty to tird parties and therefore could not be a basis fr the broker’s personal liability.”

On the question of whether Sanchez was vicariously liable, as a corporate employer, for te tortious acts of the agents committed within te scope of the agency or employment, the court ruled that absent special circumstances, it i the corporation, not its owner or officer, that is te principal or employer and thus subject to vicarious liability for torts committed by its employees or agents. Accordingly, the Court held that under traditional agency principles, it is Gold Coast, as Desser’s employer, not Sanchez, who may be held liable for Desser’s torts committed within the scope of his employment. The Court ruled that the right to control is insufficient by itself, under traditional agency principles, to establish a principal/agent or employer/employee relationship. For an agency relationship to exist there must be an affirmative manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other to so act. Mere inaction or malfeasance would not create such a relationship between two employees.

The significance of this appellate decision for real estate agents and brokers is that the failure to supervise could lead to discipline from the Department of Real Estate, and could even be grounds for action by the corporation against the designated officer. However, unless the broker had participated in the bad behavior there can be no liability imposed by an injured third party.

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September 2012: REAL ESTATE CONCERNS: TO WHOM CAN COMMISSIONS BE PAID?

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BY: TAMAR GABRIEL,ATTORNEY AT LAW
CASEY MCINTOSH, PARALEGAL, researched and contributed to these articles.

California Business and Professions Code Section 10137 governs the circumstances under which a licensed real estate broker can compensate a person from the commissions obtained in a real estate transaction.

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REAL ESTATE CONCERNS: TO WHOM CAN COMMISSIONS BE PAID?

Specifically, this Code Section states that “it is unlawful for any licensed real estate broker to employ or compensate, directly or indirectly, any person for performing any of the acts within the scope of this chapter who is not licensed under the broker employing…” It further states that “no real estate broker shall be employed by or accept compensation from any person other than the broker under whom he or she is at the time licensed.” Unfortunately, the Code still seems to allow for some confusion as to the payment of third parties, former employees, and other aspects of commission payments that brokers are often faced with.

Pursuant to an interpretation by the California Department of Real Estate, the commission earned in a real estate transaction belongs solely to the employing broker. The employing broker must be involved in the distribution of commissions under his or her license. Any violations are subject to temporary suspension or revocation of his or her license. In light of this, a salesperson can instruct the employing broker to pay his or her commission to a third party, but that payment can only be made if the third party did not perform acts for which a real estate license is required. Business and Professions Code Section 10137 correlates with the Real Estate Law (Business and Professions Code Section 10000, et seq.) and is intended to prevent payment for unlicensed acts.

Commission sharing or splitting is not prohibited by Business and Professions Code Section 10000, et seq. However, prior to entering into an agreement for commission splitting or sharing, it is important to check with an attorney to make sure the agreement does not violate other laws pertaining to real estate, such as the Federal Real Estate Settlement Procedures Act (RESPA). In a situation where commissions are legally split or shared, the commissions still belong to the employing broker. Agents may work together and decide to share or split the commission only if the entity that they are sharing or splitting with has not performed any acts for which a real estate license is required. If the entity that the agent is sharing or splitting a fee with does have to perform the acts of a licensed real estate person, then he or she must also be licensed. Even then, it is only legal to share or split fees if the licensee was acting within the course and scope of his or her license.

Commissions earned by former employees also present a problem for brokers. Compliance with the Code requires brokers to issue checks for commissions to the former employee’s new employing broker. If such a person does not exist for whatever reason, it is the Department’s policy that an earned commission can be paid directly to a former employee. This remains consistent with an Attorney General Opinion dealing with the payment of earned commissions to suspended licensees.

Lastly, confusion often arises with regards to dual employment. This is most likely due to the fact that it may seem that brokers are allowed to work for two companies while agents are not. In reality, however, Business and Professions Code Section 10137 allows real estate brokers to act as salespeople or broker-associates for another broker. Real estate agents, however, are only allowed to work for one broker and may only accept compensation from their employing broker. This is to ensure that one employing broker is directing and controlling the licensed activity of an employed salesperson.

The bottom line when it comes to real estate commissions is that they are under the control of the employing broker. Commissions can be paid to someone else—it is one of the major perks of being a real estate agent! This includes third parties and suspended former employees, but Business and Professions Code Section 10137 was enacted to provide guidelines for the payment of compensation and to ensure that consumers are protected from unscrupulous people who attempt to perform the actions of a real estate broker or real estate agent without a license.

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August 2012: BREAKING DOWN THE HOMEOWNER BILL OF RIGHTS

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BY: JOHN V. GIARDINELLI, ATTORNEY AT LAW
CASEY MCINTOSH, PARALEGAL, researched and contributed to these articles.

Although some economists believe that we have reached the bottom of the housing  recession, that prospect has not prevented the California legislature from enacting laws to protect borrowers in the future. On July 11th, Governor Brown signed the “Homeowner Bill of Rights” into law. A combination of five bills, including Assembly Bill 278 and Senate Bill 900, the “Bill of Rights” aims to keep California homeowners in their homes by avoiding foreclosure wherever possible. According to California Attorney General, Kamala D. Harris, who backed these laws, “[t]hese common-sense reforms will require banks to treat California homeowners more fairly and bring more transparency and accountability to their practices in our state.”

The key elements of the Homeowner Bill of Rights are that it will (1) prohibit lenders from engaging in dual tracking (defined below); (2) require lenders to provide a single point of contact for borrowers seeking foreclosure prevention alternatives; (3) provide borrowers with certain safeguards during the foreclosure process; and (4) provide borrowers with the right to sue lenders for material violations of this law.

The law will generally come into effect on January 1, 2013. As it stands now, it pertains only to first trust deeds secured by owner-occupied properties with one-to-four residential units. A “borrower” is defined as a natural person who is potentially eligible for a foreclosure prevention alternative program. This person cannot have filed bankruptcy, surrendered the secured property, or be working with an organization that is advising him or her on how to avoid their contractual obligations by extending the foreclosure process.

Prohibition of Dual Tracking

“Dual tracking” is when a lender continues to pursue foreclosure even though the borrower is applying for a loan modification, a short sale, or other foreclosure alternative. In the recent past, it has been a common complaint from borrowers and their REALTORS® that they have been in the process of a loan modification or short sale and their house was sold at a Trustee’s Sale. The new law prohibits a mortgage servicer from recording a Notice of Default, Notice of Sale, or conducting a Trustee’s Sale for foreclosure if a short sale has been approved or if a borrower’s complete application for a loan modification is pending. Even still, if the loan modification is denied, the lender cannot proceed with the foreclosure process until 31 days after giving the borrower a written denial of the modification (or longer if the denial is appealed). If a short sale has been approved after the notice of default has been filed, the lender must rescind or cancel any pending Trustee’s Sale. This provision of the law sunsets, or expires, on January 1, 2018.

Single Point of Contact

Another issue that borrowers have faced is the fact that they cannot make contact with a single person at the lender’s company. Phone call after phone call would be made to different people at the company or to an automated, non-responsive answering service. No one would know anything about the borrower’s situation, the status of the modification, or any other foreclosure alternatives available to the borrower.

Pursuant to the new law, upon a borrower’s request, the lender must establish a “single point of contact” for the borrower to contact about foreclosure alternatives. The single point of contact can be an individual or a team, but he, she or they must have knowledge of the borrower’s status and the foreclosure alternatives available to the borrower. The contact will assist in coordinating the application for the foreclosure prevention alternative and giving status reports when requested. The contact will also have access to those with the ability and authority to stop the foreclosure process, should one have already been commenced.

Safeguards for Borrowers

Additional safeguards have been added for borrowers. Until January 1, 2018, a loan servicer must provide written acknowledgement of a borrower’s submission of a loan modification application within five (5) days of receipt of the application. In the confirmation, the lender must provide a description of the loan modification process and include an estimated timeframe for the lender’s servicer to reach a decision. The confirmation must also address any deficiencies in the borrower’s application. If the loan modification is denied, the servicer must send a written notice to the borrower specifying why it was denied. However, smaller banks do not need to comply with these requirements until January 1, 2018.

Another safeguard that is included in the Bill is that any written approval for a foreclosure prevention alternative must be honored by a subsequent mortgage servicer if the loan is transferred or sold. Again, smaller banks do not have to comply with this requirement. Further, it will expire on January 1, 2018.

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Legal Remedies for Borrowers

Per Attorney General Harris, “[h]omeowners will also have a clearly-defined right to access the courts to protect themselves from violations of these protections.” While some have argued that this aspect of the Bill will merely delay the foreclosure process and encourage litigation, others argue that homeowners whose rights have been violated should have the opportunity to remain in their homes and seek damages. Under

the new law, homeowners who feel that they have been treated unfairly or were not given due process are presented with two options. If the lender’s misconduct occurs during the foreclosure process, borrowers may seek injunctive relief, which is a court-ordered act or prohibition of an act (such as stopping the foreclosure sale). However, if the misconduct occurs after the foreclosure sale has already taken place and it is not possible for a borrower to get his or her home back, they may seek monetary damages. Essentially, borrowers will have the right to sue banks for “significant, material” violations of the new laws.

While the Homeowner Bill of Rights has been surrounded by controversy and the arguments both for and against it have been well-presented, the Bill nonetheless addresses several major concerns that have plagued California homeowners and REALTORS® for the past several years. It has been touted as some of the “most stringent legal protections in the nation against predatory, aggressive bank lending practices.” It will be interesting to see how, once enacted, it affects both borrowers and banks alike.

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