Just hours before his deadline at midnight last night, Governor Jerry Brown signed or vetoed all the legislative bills on his desk to end the legislative process for 2013. C.A.R.’s Legal Department has summarized and made available on our webpage about 130 of these New Laws mostly taking effect next year that may affect your real estate practice or otherwise be of interest to REALTORS®. The full text of each new law is available athttp://leginfo.legislature.ca.gov.
This legislative session’s new laws cover a wide range of topics of interest, including disclosure requirements, licensing matters, adjoining owners, affiliated real estate services, landlord-tenant, subdivisions, land use, employment, and many more. Some of the significant new laws for REALTORS® are as follows:
TDS Revised to Include Construction Defect Litigation
Effective July 1, 2014, the Real Estate Transfer Disclosure Statement (TDS) has been revised to require disclosure of the seller’s knowledge of certain construction defect claims for newly constructed homes under a law commonly referred to as SB 800. As amended, the TDS will inquire, in question 16 of Section 11C, as to whether a seller is aware of any claims or lawsuits involving construction defects threatening to or affecting the real property, including any pre-litigation claims of a construction defect, claims of breach of warranty, or claims for breach of an enhanced protection agreement under SB 800. Senate Bill 652.
Disciplinary Action for Broker Record Tampering
Starting January 1, 2014, the Bureau of Real Estate can suspend or revoke the license of any real estate salesperson, broker, or corporate brokerage, if the broker, salesperson, or any director, officer, employee, or agent of the corporation, knowingly destroys, alters, conceals, mutilates, or falsifies any of the books, papers, writings, documents, or tangible objects required to be maintained and provided upon notice, or sought in connection with an investigation, audit, or examination. Under existing law, a real estate broker must generally retain for 3 years copies of all documents executed or obtained by him in connection with any transactions involved licensed activities. Senate Bill 676.
Consumer Protection Against Prepaid Rental Listing Services
Beginning on January 1, 2014, the California Bureau of Real Estate (CalBRE) is authorized to issue a citation to an unlicensed person for engaging in prepaid rental listing services without a prepaid rental listing service license or real estate broker license. As background, a prepaid rental listing service is generally a business that charges a fee for providing a prospective tenant with a list of available places for rent. Existing required content for a written contract that a prepaid rental listing service licensee must offer a prospective tenant before accepting a fee has been broadened to include the licensee’s license number as well as a specific statutory notice about refunds. An aggrieved person with a final judgment against a prepaid rental listing service licensee may apply to CalBRE for payment from the Consumer Recovery Account. Any payment from the Consumer Recovery Account will result in automatic suspension of the prepaid rental listing service licensee. Senate Bill 269.
FTB Information Return for Out-of-State Acquisition in 1031 Exchange
For any 1031 exchange that occurs on or after January 1, 2014, a taxpayer acquiring a “like-kind” property located outside of California must file an information return with the Franchise Tax Board (FTB) for that taxable year and every year thereafter in which the gain or loss from the exchange has not been recognized. If a taxpayer fails to file such information return and tax returns, the FTB may propose to assess the amount of tax, interest, and penalties due by estimating net income from any available information, including the amount of gain. Assembly Bill 92.
Adjoining Owners Equally Responsible for Shared Fences and Boundaries
Commencing January 1, 2014, adjoining landowners must share equally the responsibility for maintaining boundaries and monuments between them. Adjoining landowners are presumed to share an equal benefit from any fence dividing their properties, as well as equal costs for construction or maintenance, unless otherwise agreed in writing. This new law also provides specific procedural requirements for an owner who intends to incur costs for a division fence to notify the adjoining owner of the estimated costs and other information. Existing law enacted in 1872 which requires a homeowner who fully encloses a property to refund a neighbor a just proportion of the value of a division fence has been repealed. Assembly Bill 1404.
Increased Insurance Requirements for Structural Pest Control
As of January 1, 2014, existing law allowing a structural pest control operator to file with the Structural Pest Control Board evidence of either an insurance policy or bond as specified, has been revised to eliminate the option of the bond. Furthermore, the minimum limit of the insurance policy that an operator must maintain has been increased from $25,000 to $500,000 for bodily injury and destruction of property. Additionally, the amount of a surety bond that an operator must maintain has been increased from $4,000 to $12,500. Also, the surety bond requirement for reissuance of a license or registration after suspension or revocation has been increased from a range of $1,000 to $8,000, to a range of $8,000 to $25,000. Senate Bill 662.
Smoke Detectors Specifications Changed
Starting on July 1, 2014, the State Fire Marshall will not approve a battery-operated smoke alarm unless it contains a non-replaceable, non-removable battery capable of powering the smoke alarm for at least 10 years. This rule was originally slated to take effect on January 1, 2014. Until July 1, 2015, an exception to this rule applies to smoke alarms ordered by, or in the inventory of, an owner, managing agent, contractor, wholesaler, or retailer on or before July 1, 2014. Furthermore, starting January 1, 2015, the State Fire Marshal will not approve a smoke alarm unless it does all of the following: (1) displays the date of manufacture on the device; (2) provides a place on the device to insert the date of installation; and (3) incorporate a hush feature. A previous requirement for the smoke alarm to incorporate an end-of-life feature that provides notice that the device needs to be replaced has been eliminated. The requirements taking effect on January 1, 2015 was originally slated to take effect on January 1, 2014. The State Fire Marshal has the authority to create exceptions to these requirements. Senate Bill 745.
Title Companies Protected for Good Faith Filing of Notice of Default or Sale
Except when acting as a trustee, a title insurance company is not liable for violating certain laws prohibiting the filing of a notice of default or notice of sale if the title company, while acting in good faith and in the normal course of business, records or causes to record a notice of default or notice of sale at the request of the trustee, substituted trustee, or beneficiary. This protection applies to the following laws: (1) prohibition against the filing of a notice of default until 30 days after the lender contacts a borrower to explore options of avoiding foreclosure; (2) prohibition against the filing of a notice of default or sale if a short sale is approved by all parties as specified; (3) prohibition against the filing of a notice of default or sale if the borrower has submitted a complete loan modification application as specified; and (4) injunctive relief for certain violations. Senate Bill 310.
Literal Translation of “Notary Public” in Ads Prohibited
Effective October 5, 2013, any person who is not an attorney is guilty of the unauthorized practice of law for literally translating from English into another language any words that imply that the person is an attorney, including “notary public,” “notary,” “licensed,” “attorney,” or “lawyer” in any advertisement or other document. The literal transaction of the phrase “notary public” into Spanish as “notario publico” or “notario” (which means in Spanish an attorney with special credentials, not a notary public) are explicitly prohibited by anyone other than an attorney. A person who violates this law may be held liable in a civil action brought by the State Bar for a penalty up to $1,000 per day for each violation. The civil penalty is in addition to any other remedies, including criminal prosecution for a misdemeanor punishable by one year imprisonment, plus a $1,000 fine. Assembly Bill 1159.
Landlord Required to Provide Specific Utility Rate Schedules
Starting January 1, 2014, a master-meter customer of an apartment building, mobilehome park, or similar residential complex, must post in a conspicuous place the applicable specific current residential gas or electrical rate schedule as published by the serving utility, rather than the prevailing residential utilities rate schedule as previously required. Alternatively, the landlord as a master-meter customer may elect to post a website address for a tenant to access the schedule as long as the landlord also does the following: (1) state in the posting that an individual user may request a copy of the specific current residential gas or electrical rate schedule from the master-meter customer; and (2) provide the schedule upon request at no cost. Senate Bill 196.
Protection of Victims of Human Trafficking as Tenants
Beginning January 1, 2014, a residential tenant can terminate a tenancy within 30 days by notifying the landlord that the tenant was a victim of human trafficking as defined. The tenant’s notice to terminate tenancy must generally include a copy of a police report or court order regarding the tenant or tenant’s household member. From January 1, 2014 to January 2016, however, a tenant may simply provide documentation from a qualified third party professional indicating that the tenant or household member is seeking assistance for physical or mental injuries resulting from the offense. This law also prohibits a landlord from terminating a tenancy, or failing to renew a tenancy, based on acts of human trafficking if documented by a police report or protective court order and the wrongdoer is not a tenant of the same dwelling unit. The landlord, however, may terminate the tenancy if, after invoking protection under this law, the tenant allows the wrongdoer named in the police report or protective order to visit the property, or the landlord reasonably believes that the wrongdoer poses a physical threat to other tenants or to the tenant’s right to quiet possession. Existing law already protects a tenant if the tenant or tenant’s household member is a victim of domestic violence, sexual assault, or elder or dependent adult abuse. Senate Bill 612.
Enactment of Commercial and Industrial Common Interest Development Act
The Commercial and Industrial Common Interest Development Act has been enacted to, starting January 1, 2014, provide for the creation and regulation of commercial and industrial common interest developments. Many provisions of the new law are patterned after provisions in the Davis-Stirling Common Interest Development Act for residential properties, including association governance, operating rules, and property use and maintenance. However, various provisions of the Davis-Stirling Act are not part of the Commercial and Industrial Common Interest Development Act, including, among other things, sales disclosure requirements, board and member meetings, accounting, and dispute resolution. Senate Bill 752.
Revised Billing Statement for HOA Documents and Other Changes
Commencing on January 1, 2014, existing law requiring a homeowners’ association (HOA) to use a statutory form for billing charges for HOA sales disclosures has been revised. The new law requires the form to be in at least 10-point type and include an itemization for “Rental Restrictions, if any.” Furthermore, existing law stating that, when an inconsistency exists, governing documents prevail over articles of incorporation, which in turn prevail over bylaws, and in turn prevail over operating rules, has been revised to apply when a conflict, not inconsistency, exists. Additionally, existing law requiring delivery of documents to an HOA by email, fax, other electronic means, or personal delivery if the HOA consents to any of those methods, has been extended to allow delivery by first-class mail, postage prepaid, registered or certified mail, express mail, or overnight delivery by an express service center, regardless of HOA consent. Senate Bill 745.
Condominium Manager Exempt from Contractors Law
Effective January 1, 2014, the law states that a common interest development manager performing management services is not required to have a contractor’s license. Conversely, the term “contractor” or “consultant” does not include a common interest development manager. A “common interest development manager” is generally defined as someone who, for compensation or in expectation of compensation, provides or contracts to provide management or financial services (or represents himself or herself as providing management or financial services) to a condominium complex or other common interest development. Real estate agents who are property managers performing activities for which a real estate license is required are already exempt from the contractor’s licensing requirements under existing law. Senate Bill 822.
24 Month Extension for Approved Tentative Subdivision Maps
To allow cities and counties to preserve development applications not currently being processed due to adverse economic conditions in the construction industry, the existing time frame that an approved tentative map or vesting tentative map for subdivided parcels of land under the Subdivision Map Act has been extended. Under existing law, an approved tentative map or vesting tentative map generally expires within 24 to 36 months, depending on local ordinance. The new law, effective July 11, 2013, automatically allows an additional 24 months for any map approved on or after January 1, 2000 if the map was not expired as of July 11, 2013. A tentative map or vesting tentative map approved on or before December 31, 1999 can also be extended by 24 months if the subdivider applies for an extension at least 90 days before the expiration of the map, and the map is determined to be consistent with applicable zoning and general plan requirements. Assembly Bill 116.
Local Code Enforcement Officer Can Determine Substandard Housing
As of January 1, 2014, the enforcement authority for determining certain substandard housing conditions previously delegated only to county health officers, has been expanded to include local code enforcement officers as defined. To help clean up blighted areas, an infestation of insects, vermin, or rodents, as well as inadequate garbage storage and removal facilities, can now be determined by a local code enforcement officer if the city does not have an agreement or the resources to contract for county health services. To qualify to make these determinations, the local code enforcement officer must successfully complete a course of study in the appropriate subject matter as determined by the city. A property owner will not be cited by both local and county enforcement agencies for the same violation regarding pest infestation or inadequate garbage storage or removal.Senate Bill 488.
City May Allow Small-Scale Urban Farms
Beginning on January 1, 2014, the Urban Agriculture Incentive Zone Act has been enacted to promote small-scale sustainable urban farm enterprises. This new law authorizes a city or county and a landowner to enter into a contract for at least 5 years to restrict the use of vacant, unimproved, or otherwise blighted lands for small-scale production of agricultural crops and animal husbandry. The property must be at least 0.10 acres in size. The county assessor must value property restricted for crops and animal husbandry at a rate based on the average per-acre value of irrigated cropland in California, adjusted proportionately to reflect the acreage of the property as specified. This law expires on January 1, 2019. Assembly Bill 551.
Minimum Wage Increased to $10 Per Hour
Minimum wage in California has been increased from $8 per hour to $10 per hour. A one-dollar increment from $8 per hour to $9 per hour will come into effect on July 1, 2014, and another one-dollar increment from $9 per hour to $10 per hour will come into effect on January 1, 2016. The minimum wage has been $8 per hour since January 1, 2008. Assembly Bill 10.
Various Other Safeguards for Employees
The Legislature enacted a significant number of new laws this year aimed at protecting employees. A brief description of 14 of these employment laws is provided here, but more detail on each law is available on ourwebpage. The new laws protect employees engaged in the following conduct: (1) claiming unpaid wages (Assembly Bill 263 and Senate Bill 666); (2) not working during meal or rest periods (non-exempt employees) (Senate Bill 435); (3) updating personal information (Senate Bill 263); (4) disclosing information reasonably believed to be a violation of law (Senate Bill 496); (5) voluntarily providing CPR or other emergency medical services (Senate 633); (6) being a victim of domestic violence, sexual assault, and stalking (Senate Bill 400); (7) taking off from work to appear in a court proceeding involving the employee as a victim of certain offenses (Senate Bill 288); and (8) not disclosing a criminal conviction that has been judicially dismissed or ordered sealed as specified (Senate Bill 530). Additional new employment laws do the following: (1) protect an employee against unfair immigration-related practices (Assembly Bill 263); (2) include military or veteran status as a protected class of people who cannot be discriminated against in employment (Assembly Bill 556); (3) protect an employee against an employer’s willful failure to remit withholdings from wages to the proper agencies by punishing such behavior as a felony (Senate Bill 390); (4) protect an employee against liability for a prevailing party’s attorney fees if the employee sues in good faith (Senate Bill 462); (5) entitle an employee to liquidated damages for receiving less than minimum wage (Senate Bill 422); and (6) allow the Labor Commissioner to place a lien against an employer’s real property to secure payment under a final order (Assembly Bill 1386).