Bill Text: CA AB1762 | 2009-2010 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Real estate.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Passed) 2010-07-15 - Chaptered by Secretary of State - Chapter 85, Statutes of 2010. [AB1762 Detail]

Download: California-2009-AB1762-Amended.html

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BILL NUMBER: AB 1762	AMENDED
	BILL TEXT

	AMENDED IN SENATE  JUNE 2, 2010

INTRODUCED BY   Assembly Member Hayashi

                        FEBRUARY 9, 2010

   An act to  amend   repeal and add 
Section 10026 of the Business and Professions Code, relating to real
estate.



	LEGISLATIVE COUNSEL'S DIGEST


   AB 1762, as amended, Hayashi. Real estate.
   The Real Estate Law provides for the regulation and licensure of
real estate brokers and salespersons by the Real Estate Commissioner.
As used in the Real Estate Law, the term "advance fee" is defined as
a fee, regardless of the form, that is claimed, demanded, charged,
received, or collected by a licensee from a principal before fully
completing each and every service the licensee contracted to perform,
or represented would be performed, with certain exceptions.
   This bill would redefine the term "advance fee" to mean a fee
 for services requiring a real estate license  ,
regardless of the form  of compensation  , that is
claimed, demanded, charged, received, or collected by a licensee
 from a principal   for services requiring a
license, or for a listing, as defined,  before fully completing
the service the licensee contracted to perform  or represented
would be performed  , with certain exceptions. The bill would,
in addition to the existing exceptions, also exempt from the
definition of advance fee moneys  claimed, demanded, 
charged  , received,  or collected for  the purposes of
 advertising  the sa   le, lease, or exchange of
real property  or  a business   promotion that
are paid to other service providers, or for referral to other real
estate brokers or salespersons, or in connection with mortgage loan
origination activity   opportunity in a newspaper,
written publication, or other electronic media, as specified, or
moneys earned for real estate services under a limited service
contract, as defined, for stand-alone services  . The bill would
also exempt from that definition  fees associated with
prepaid rental listing services   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 
.
   Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

   SECTION 1.    Section 10026 of the  
Business and Professions Code   is repealed.  
   10026.  The term "advance fee" as used in this part is a fee,
regardless of the form, claimed, demanded, charged, received, or
collected by a licensee from a principal before fully completing each
and every 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 section. The term applies
to a fee for a listing, advertisement or offer to sell or lease
property, other than in a newspaper of general circulation, issued
primarily for the purpose of promoting the sale or lease of business
opportunities or real estate or for referral to real estate brokers
or salesmen, or soliciting borrowers or lenders for, or to negotiate
loans on, business opportunities or real estate. As used in this
section, "advance fee" does not include "security" as that term is
used in Section 1950.5 of the Civil Code, or a "screening fee" as
that term is used in Section 1950.6 of the Civil Code. 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. 2.    Section 10026 is added to the  
Business and Professions Code   , 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, as that term is defined in Section 10027,
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 of 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.
   (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. 3.    The changes made to Section 10026 of the
Business and Professions Code by this act are intended to supersede
the changes made to Section 10026 of the Business and Professions
Code by Chapter 630 of the Statutes of 2009, but are not otherwise
intended to alter the obligations or liability of any person pursuant
to Chapter 630 of the Statutes of 2009. 
  SECTION 1.    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
for services requiring a real estate license, regardless of the form
of compensation, that is claimed, demanded, charged, received, or
collected by a licensee from a principal before fully completing the
service the licensee contracted to perform. Neither a fee, nor the
services contracted for, shall be separated or divided into
components for the purpose of avoiding the application of this
section.
   (b) The term "advance fee" does not include moneys charged or
collected for advertising or promotion that are paid to other service
providers, or for referral to other real estate brokers or
salespersons, or in connection with mortgage loan origination
activity subject to this part, and does not include fees described in
Article 2.3 (commencing with Section 10167) of Chapter 3, or Section
1950.5 or 1950.6 of the Civil Code.