GOVERNMENT REGULATION OF BROKERAGE TRANSACTIONS

GOVERNMENT REGULATION OF BROKERAGE TRANSACTIONS


As our country’s development passed through the pioneering and homesteading stages to urbanization, people across the land found it increasingly difficult to “strike a deal” with strangers for land and homes. There was a real need for an intermediary to provide basic real estate knowledge and services and negotiate transactions. The real estate agent met this need and continues to fill this important role today.
Along with increasing opportunities to provide real estate services to the maturing nation came abuses of the public trust in the form of unethical, illegal or sharp practices by dishonest or incompetent agents operating in a climate of unorganized and often unscrupulous competition. Real estate practitioners themselves began to see the need for government regulation. The public’s legitimate interest in the buying, selling, exchanging and financing of real property has led to regulation of the real estate business through the adoption of legislative and administrative controls.
California’s Legislature passed the nation’s first real estate licensing law in 1917. The courts declared that law to be unconstitutional, based on its conditions compared to the licensing requirements of the Insurance Commissioner. California then adopted the Real Estate Act of 1919, which the State Supreme Court upheld as a reasonable exercise of the power of the state to regulate the conduct of its citizens in the interest of the common good.
All fifty states and the District of Columbia have enacted statutes governing, to some degree, the licensing, regulation and conduct of real estate agents. This type of government regulation and supervision has its foundation in what is known as the police power.


The Police Power and the Real Estate Law


For many people, the phrase “police power” evokes images of police officers, jails and courtrooms. But the police power involves much more than the business of detecting crime and criminals and maintaining public order and tranquility. The following, excerpted from a United States Supreme Court case, gives a useful description of the police power:
“By means of it, the legislature exercises a supervision over matters affecting the commonwealth and enforces the observance by each individual member of society of duties which he owes to others and the community at large. The possession and enjoyment of all rights are subject to this power. Under it the state may prescribe regulations promoting the health, peace, morals, education and good order of the people, and legislate so as to increase the industries of the state, develop its resources and add to its welfare and prosperity.”
In short, police power is the power of the state to enact laws within constitutional limits to promote the order, safety, health, morals and general welfare of our society.
The police power does not vest arbitrary authority in any legislative body. Laws emanating from exercise of the police power must be necessary and proper for the protection or advancement of a genuine public interest. Neither state nor local authority may impose onerous, unreasonable, or unnecessary burdens upon persons, property or business.
Legislation intended to protect the public safety, health and morals may impact the manner of conducting lawful occupations and businesses without, of course, taking away the right to be gainfully employed.
For many years, society has benefited from regulation of professions such as law, medicine and dentistry. More recently, many other professions, including real estate, have become subject to regulation beyond that of mere licensing.
The organized real estate industry has been among the strongest supporters of the real estate licensing law. The industry is aware that reasonable regulation of those engaged in the real estate business benefits the public by creating and maintaining professional standards and ethical practices in the conduct of real estate brokerage activities. This, in turn, benefits the industry by creating an orderly market place.

The Real Estate Law exists primarily for the protection of the public in real estate and mortgage transactions involving the services of an agent. By requiring qualifications for licensing, the law enables the Commissioner to ascertain that persons acting in the capacity of a broker or salesperson meet certain standards of knowledge and honesty and, for the broker license, experience.
The Commissioner’s authority is not arbitrary. For the Commissioner to find that an applicant for a license is not honest and truthful there must be facts which justify that conclusion. When an applicant has the qualifications required by law, the Commissioner must issue the license.


Subdivisions


With statutory authority, the Commissioner began regulating the sale or lease of subdivided lands in 1933. Like the 1919 licensing law, the subdivided lands provisions survived the State Supreme Court’s test of constitutionality. The court held that the object of the law was the prevention of fraud and sharp practices in a type of real estate transaction particularly open to abuses. The court said the method of furnishing information to real property purchasers, which involved investigation and written disclosure of certain essential facts, was appropriate protection. This disclosure document is called a public report.


Law Codified


On August 4, 1943, the Legislature organized the statutory authority of the Department of Real Estate (DRE) into the two Parts of Division 4 of the Business and Professions Code (hereinafter, the Code). Part 1 (now Sections 10000 to 10580) is titled Licensing of Persons and may be cited as the Real Estate Law. Part 2 (now Sections 11000 to 11288) is titled Regulation of Transactions and may be cited as the Subdivided Lands Law. (Note that these laws are quite different in purpose and operation from real property law, law of agency, contract law, or other legal aspects of real estate ownership and conveyancing.)


Administration by Commissioner


The Commissioner’s mission is to enforce the Real Estate Law and the Subdivided Lands Law in a manner which achieves maximum protection for persons dealing with real estate licensees and for purchasers of subdivided real property. Foremost among the Commissioner’s specific duties are: the qualification of applicants and issuance of real estate licenses; the investigation of complaints and, where appropriate, pursuit of formal action against licensees; the investigation of nonlicensees alleged to be performing acts for which a license is required; and the regulation of the sale or lease of subdivision interests. The Commissioner also, through real estate broker and other license requirements, regulates dealings in mineral, oil, and gas property and Prepaid Rental Listing Services.


When a Real Estate License is Required


Sections 10131, 10131.1, 10131.2, 10131.3, 10131.4, 10131.45, and 10131.6 of the Business and Professions Code (hereinafter, the Code) define the scope of a real estate broker’s activity. Mortgage loan broker activities may be found in Sections 10131 (d) and 10240, et seq. of Article 7 (known as the Real Property Loan Law). In addition, the regulation of the origination of mortgages is found in Section 10166.1 et seq. of Article 2.1 (known as the “Secure and Fair Enforcement for Mortgage Licenses”).Trust deed transactions and real property sales contract transactions requiring a license are defined in Sections 10131 (e) and Sections 10230-10236.6 (Article 5). The law governing Multiple Investor trust deed transactions is found in Section 10237, et seq. (Article 6). Advance fee brokerage activities are defined in Section 10131.2. Mobilehome sales activities requiring broker licensure are described in Section 10131.6 and Prepaid Rental Listing Services provisions are found in Sections 10167-10167.17. Mineral, oil and gas property dealings requiring a broker license can be found in Sections 10131.4 and 10131.45. Section 10132 of the Code defines a real estate salesperson and the acts requiring licensure and employment by a real estate broker.
Without a license, an individual cannot receive compensation for the performance of any of the acts defined as being within the purview of a licensed broker or salesperson. In addition, the law provides penalties for a person who acts or purports to act as a real estate broker or salesperson without being duly licensed. The Commissioner may revoke the license of any real estate broker who is found in a disciplinary hearing to have compensated an unlicensed person for performing activities which require a real estate license. Furthermore, any person who compensates a nonlicensee for performing services which require a license is guilty of a misdemeanor and may also be fined by the courts. (Sections 10138 and 10139 of the Code)



Exemptions From License Requirements


Exemptions to the license requirement include: resident managers of apartment buildings and complexes or their employees; short-term (vacation - only if under 30 days) rental agents; employees of certain lending institutions; employees of real estate brokers for specific, limited functions; certain agricultural associations; residential mortgage lenders licensed by the Department of Corporations; cemetery authorities; certain collectors of payments for lenders or on notes for owners in connection with loans secured directly or collaterally by liens on real property, provided such collectors annually meet exemption criteria; clerical help, etc. (See Sections 10131.01, 10133, 10133.1, 10133.2, 10133.3, 10133.35, and 10133.4, of the Code for the license exemptions.)


Examinations Required


The law requires the Commissioner to ascertain by written examination that the license applicant is qualified to act in the capacity of a broker or salesperson. Under no circumstances can the examination requirement be waived. An applicant for a real estate license examination must meet the prerequisite requirements and be scheduled for the applicable qualifying examination. The examination application and fee are valid for a maximum period of two years after the application was filed. No restrictions are placed on the number of times an applicant who fails the qualifying examination may apply for reexamination. Applicants may apply for reexamination online at DRE’s web site or by filing the Examination Result Notification (RE 418), or an Examination Change Application (RE 415), and the appropriate examination fee. If the applicant is unsuccessful in passing the examination within the two-year period, the application expires and the applicant will be required to submit a new application and fee, and may be required to submit new qualification documents.
When a qualifying examination is passed, the successful examinee is entitled to apply for a four-year license. The examinations are discussed in more detail in Chapter 2.


Applications


Salesperson examination applicants must apply to take their examination by submitting a Salesperson Examination Application form (RE 400A). Broker examination applicants must apply for their examination by submitting a Broker Examination Application form (RE 400B). Applications for all examinations and for all licenses issued by the Commissioner must be made on forms furnished by DRE. Forms can be obtained online at DRE’s web site, at any of DRE’s offices, or by writing to the main office in Sacramento. Detailed instructions and fee requirements are furnished with the application forms. An application for an examination or a license may be presented at any of DRE’s offices or (preferably) mailed to Sacramento. A license application must be submitted with the current license fee and proof of Legal Presence. Applicants must also comply with the fingerprint requirement.


Fingerprint Requirement


An applicant for any real estate license must submit one set of classifiable fingerprints, acceptable to the State Department of Justice (DOJ), unless the applicant is currently licensed by DRE or has held a real estate license which expired less than two years ago.
Fingerprints must be submitted through DOJ's Live Scan Program, which involves the electronic taking and transmission of fingerprints to DOJ. Fingerprints may be submitted any time after an applicant has applied to take the real estate examination. The Live Scan Service Request form (RE237) is available from the DRE’s web site. Alternatively, a RE 237 will be sent to all applicants who successfully complete the real estate examination. Live Scan applicants should take the Live Scan Service Request form to a participating Live Scan service provider. A fingerprint processing fee and a live scan service fee will be collected by the live scan provider. After the Live Scan service provider takes the fingerprints, the applicant must submit to DRE a copy of the RE 237 with Part 4 completed, along with the applicant’s completed original license application and the appropriate fee. A list of Live Scan service providers can be obtained on the DRE web site at www.dre.ca.gov.
Applicants who reside outside California may continue to submit fingerprints in ink using the California license applicant Fingerprint Card (FD-258 Rev. 5/99). A $51.00 fee, payable to DRE, is required for processing fingerprints through DOJ. This fee must be included with the license application and may be combined with the license fee.

Within 90 days after issuance, the Commissioner may suspend without a hearing the license of anyone who procured a license by fraud, misrepresentation, or deceit, or made any material misstatement of fact in the application. (Section 10177.1 of the Code)


Proof of Legal Presence


All applicants for a real estate salesperson, broker, officer, mineral, oil and gas broker, or prepaid rental listing service license, must submit proof that they have legal presence in the United States before an original or renewal license can be issued. A proof of legal presence document (i.e., birth certificate, resident alien card, etc.) must be submitted by original and renewal license applicants only one time with a Public Benefits Form (RE205). Please refer to that form for further instructions and information.


License Term


Original broker and salesperson licenses are issued for a four-year period. A broker or salesperson license may be renewed every four years online at DRE’s web site or by filing the proper application, fee, and evidence of completion of continuing education. A license may not be renewed which has been revoked as a disciplinary measure, or denied, or suspended under the provisions of Section 17520 of the Family Code (Family Law -Child Support). The license issued to a salesperson who has not completed the educational requirements outlined under Section 10153.4 within eighteen months of license issuance will be suspended automatically and may not be renewed unless the educational requirements are completed within the original four-year license term.