CAR LEGAL QUESTIONS AND ANSWERS

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WHAT’S NEW

Team Name Guidelines Sept. 16, 2016 (revised) Many real estate salespersons work in teams under a brokerage.  If a group of two or more real estate licensees working under the same broker wish to work together as a team and advertise themselves as a team using the name of one of the licensees, usually the head of the team, there are some very specific CalBRE requirements that must be followed.  This Q&A goes over the details of the CalBRE rules for team names and team name advertising.Banks Offering Broker Trust Accounts CAR has compiled a list of banks that offer broker trust accounts.

Subdivision Advertising February 23, 2017 (revised) In addition to all other advertising rules, there are specific rules regarding the advertising of subdivision properties. In this context, a subdivided property refers to parcels that have been divided into five or more interests for the purpose of sale, lease or financing. Additionally, there are rules that place special restrictions on selling various types of subdivided properties which are located outside the state of California.

Foreclosure Timeline Feb. 16, 2017 (revised) In California, lenders who intend to foreclose on a property when the loan is delinquent typically use the nonjudicial foreclosure process also known as a trustee’s sale.  This process is less expensive for the lender than the judicial foreclosure process.  A nonjudicial foreclosure doesn’t require a court proceeding and, thus, is a more expeditious process.  From here on, whenever the term “foreclosure” is used, it is referring to a trustee’s sale.

With foreclosures being so prevalent and with so many homeowners being at risk of losing their homes to foreclosure, REALTORS® need to be able to assess whether they have sufficient time to market the property and close escrow before the property is lost to foreclosure.  Therefore, this article provides a foreclosure timeline to assist REALTORS® in their assessment of the time remaining before a possible foreclosure occurs.

Under the “Homeowner Bill of Rights” California Civil Code Section 2923.5 adds a 30-day borrower contact period before the lender may record the NOD for first lien mortgage loans secured by owner occupied 1-4 residential property. However, until 2018, certain large lenders who have foreclosed on more than 175 California properties annually are excluded from this requirement.

In the counting of days in the chart below, please consider that if the final day of performance falls on a Saturday, Sunday, or holiday, then the day for performance becomes the next business day.  “Business days” are defined as all days other than Saturday, Sunday, and holidays.  See California Civil Code Sections 7.1, 9, and 10 for more details.

Trees Feb. 15, 2017 (revised) Trees are essential to life as we know it. Their benefits include oxygen production, erosion control, storm water diversion, shade, beauty, and historical continuity. Despite their benefits, trees can also lead to disputes if they are dropping branches or debris onto a neighboring property, or encroaching roots threaten to damage the foundation of a house. Trees can sometimes interfere with the lawful use and enjoyment of neighboring properties and unfortunately these disputes often arise when the property goes on the market.

Easements 2/14/2017 An easement is a nonpossessory interest in someone else’s property that gives the owner of the easement a right to use the other’s property in a particular way (e.g., a right of ingress and egress) or to prevent the other from using his/her property in a particular way (e.g., forbidding the other from interfering with an easement owner’s view). Thus, an easement may be affirmative or negative. In addition, it may be permanent or temporary, like any other interest in real property.

An easement is not an estate in real property, and therefore creates no title to the “other” property in the owner, but since it is an interest in real property, it comes within the Statute of Frauds. (6 Miller & Starr, Cal. Real Estate §15:5 (4th ed.)) (Hereafter “Miller & Starr § 15:5”). Thus, to create or transfer such an interest usually but not always requires a written agreement. (Civil Code § 1091).

Advertising Your Services: Required Name and License Information 2/9/2017 (revised) The content of a licensee’s advertising as well as the manner in which a licensee advertises their services are governed by both California law and the REALTOR® Code of Ethics. REALTORS® need to be aware of both the legal and ethical obligations they must follow when advertising.

This article will review the various regulations, laws and sections of the Code of Ethics that REALTORS® need to follow with respect to how they advertise their name and license information.

Beginning 2018 the uniform advertising standards law will come into effect. The purpose of this law is to create uniform advertising standards across a variety of media and types. Presently, advertising rules vary greatly depending on the type and medium of advertisement. “For sale” signs, print and electronic media, business cards, classified rental advertisement, etc…, rely on different rules with a variety of exceptions. This law attempts to create a unified standard with very limited exceptions.

C.A.R. Forms and Copyright Law 1/25/2017 (revised) The standard forms published by C.A.R. for use in real estate transactions are protected by copyright law.  To ensure that the value of the copyright is preserved, C.A.R. vigorously pursues and prosecutes persons who commit copyright infringement on the standard forms.  Occasionally, a person inadvertently commits copyright infringement because he or she lacks an understanding of basic copyright law.  Therefore, to clarify the application of copyright law to C.A.R.’s standard forms (including forms available on zipForm®) and to avoid unnecessary prosecutions, the following Q & A addresses the main questions that arise with respect to copyright law and C.A.R.’s standard forms.