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CALIFORNIA ASSOCIATION OF REALTORS®
BOARD OF DIRECTORS
MAY 4 - 5, 2012
The following is a summary of the significant action items approved by the CALIFORNIA ASSOCIATION OF REALTORS® Board of Directors at its Spring 2012 meeting. Some additional information items are included, but do not necessarily represent Association policy. A complete set of minutes is available for review upon request.
California REALTOR® EXPO Advisory
1. It was reported for information only that the CALIFORNIA REALTOR® EXPO 2012 will be held October 2-4, 2012 in Anaheim. The theme will be "Your Membership, Your Way."
C.A.R. Scholarship Foundation/C.A.R. Education Foundation
1. It was reported for information only that the C.A.R. Scholarship Foundation awarded scholarships totaling $10,000.
1. It was reported for information only that, per the CREPAC Bylaws, the following slate is duly noticed for approval at the Fall 2012 Business Meetings. New Trustees serve for a two-year term. Alternates may be selected to fill the remainder of a vacant term during the year.
NOMINEES FOR CREPAC TRUSTEE
(November 2012 - November 2014)
Cheryl McFall, Region 7
Debbie Rodgers, Region 11
Linda Vernon, AE, Region 12
Carol Facciponti, Region 16
Mary Funk, Region 28
NOMINEES FOR CREPAC ALTERNATE
(November 2012 - November 2013)
Eva S. Garcia, Region 3
Terriann McGowan, Region 4
Don Scordino, Region 12
Daniel Lanning, AE, Region 13
Thomas Berge, Sr., Region 16
Sandi Pfister, Region 21
Geoffrey Craighead, Region 25
Robert Pahlke, Region 29
Maria Elena Banks, Region 32
2. It was reported for information only that the CREPAC Trustees made recommendations to RPAC that resulted in funding $262,000 to members of the California Congressional delegation for the 2012 Primary election.
3. It was reported for informaiton only that the CREPAC Trustees funded $544,900 to State Assembly and Senate bi-partisan candidates for the 2012 Primary election.
4. It was reported for information only that the CREIEC Trustees funded $1,060,557.28 towards independent expenditures campaigns for the 2012 Primary Election.
5. It was reported for information only that the CREPAC Trustees funded $765,000 to support the Republican and Democratic political parties, coalitions and political causes for the 2012 Primary Election.
1. It was reported for information only that, per the Bylaws, the following slate is duly noticed for approval in Fall 2012. New Trustees serve for a two-year term. Alternates may be selected to fill the remainder of a vacant term during the year.
NOMINEES FOR IMPAC TRUSTEE
(November 2012- November 2014)
Cynthia Wood, Region 4
Leannah Hunt, Region 9
John Nisbet, Region 11
Les Fishman, Region 21
Nancy Hunt, Region 32
NOMINEES FOR IMPAC ALTERNATE
(November 2012 - November 2013)
Kim Tucker, Region 3
Jeannette Way, Region 4
Anita Thede, Region 6
Lisa Muetterties, Region 7
Robert Kronovet, Region 17
Stephen Hanleigh, Region 19
Jolaine Merrill, Region 21
Larry Black, Region 23
Michael Mercurio, Region 24
2. It was reported for information only that the IMPAC Trustees approved the following funding requests:
Pacific Legal Foundation: $25,000 to support their litigation program in support of private property rights.
Monterey County Association of REALTORS® - Up to $97,900 to fight a local parcel tax, and up to $30,000 in interboard solicitations from up to 45 local associations.
3. It was reported for information only that the IMPAC Trustees rescinded the following funding request:
Rescission of a grant approved in January 2012 to Orange County Association of REALTORS® for up to $25,000 toward an anti-Business License Tax Campaign.
Legal Action Fund Trustees
1. It was reported for informaiton only that since January, of the fifteen matters reviewed by the Legal Action Fund Trustees, the Trustees approved either funding, amicus brief or amicus letter in nine matters. The actions are as follows:
3118, LLC v. CBD Investments, Inc. The Trustees approved filing an amicus brief in a case where it is disputed whether the arbitration clause in a C.A.R. purchase contract allows a buyer to compel a broker to arbitrate without the broker’s consent. In this case, the buyer was successful in getting an order to compel arbitration under the arbitration clause in the C.A.R. agreement that both buyer and seller had signed. On appeal, the buyer argued that the opt-in part of the clause for brokers is ambiguous and unconscionable, and that agency principles require the broker to arbitrate regardless of the contractual language. Opposing the buyer, C.A.R. contends that the broker has the option to arbitrate disputes but cannot be compelled by the buyer or seller to do so under the purchase agreement.
Jury Instruction Project. The Trustees authorized funding for an effort to change the current jury instructions in California involving fiduciary duties of brokers. The relevant jury instruction currently states: “As a fiduciary, a real estate broker must disclose to his or her client all material information that the broker knows or could reasonably obtain regarding the property or relating to the transaction…The broker must place himself or herself in the position of the client and consider the type of information required for the client to make a well-informed decision.” One concern with this instruction is that there is nothing which limits the “type of information” about which the broker must investigate and advise the client to matters in which the broker has some training or expertise. In collaboration with the Strategic Defense lawyers, C.A.R. will seek to change the jury instruction in order to limit the subject matter about which a broker must advise a principal.
Nguyen v. Lee. The Trustees approved filing an amicus brief in a case involving a seizure of escrow funds. In this case, the buyer sued the broker for failing to disclose certain facts relating to the property transaction but also for the loss of the cash deposited into escrow when, for reasons still unknown and not disclosed by law enforcement, the escrow and all of its proceeds were seized by the Attorney General. The amicus brief will address the issue of whether the harm caused to the buyer was in any way related to broker representations; C.A.R. will argue that the harm was unrelated.
Hagman Trust v. Meher Mount Corporation. The Trustees approved filing an amicus brief on behalf of Meher Mount on the issue of whether a property owner’s tax exempt status that relieves it from paying property taxes should also eliminate the requirement by a person seeking adverse possession to pay taxes on the property. Many years ago, the Hagmans purchased property near Ojai, CA, believing a fence marked the boundary between their property and the neighboring property. It was eventually discovered that the fence was not located on the actual boundary and that 0.44 acres of land enclosed by the fence were within the legal description of land granted to Meher Mount, a nonprofit public benefit corporation that holds 173 acres of undeveloped land that the public can use for retreats. Due to their nonprofit status, the charity petitioned, and after two years, was granted exemption from property tax. In 2011, the Hagmans vacated their property, listed it for sale, and sued Meher Mount for quiet title to the disputed 0.44 acres, claiming adverse possession. The Hagmans contend that the tax requirement for adverse possession in the California Code is inapplicable due to Meher Mount’s property tax exemption. C.A.R. will support the position of the charity.
Peake v. Underwood. The Trustees approved filing an amicus brief in support of a broker who obtained a $60,000 sanctions award against a plaintiff buyer and his attorney when they refused to drop an action against a broker after it was demonstrated there was no wrong committed by the broker. The main issue in this case is whether a buyer of real property and that buyer’s attorney can be sanctioned for filing and maintaining an action against a real estate broker when the buyer was presented with all required disclosures.
Marin AOR Injunction Issue. The Trustees approved funding for the effort to modify a 1978 injunction against the Marin County Association of REALTORS®, on a matching basis with the Marin AOR and will also seek funding from N.A.R. The old injunction, from pre-computer, pre-internet vintage, restricts the Marin Association in the MLS area more than is required by current law.
Lyon v. Superior Court. As previously reported, C.A.R. filed an amicus brief in this case at the appellate level on the issue of whether mediation automatically tolled the statute of limitations. The issue involved an allegation that a broker should have disclosed some efflorescence (off white run off from the decks) on a wall that was an indication of a construction defect in the cement on a deck that was installed without a permit and with and unlicensed contractor. The MLS pictures showed the efflorescence but the buyer claimed the listing broker knowing concealed it due to the knowledge that the area was painted and then repainted after the efflorescence marks reappeared. The complaint was filed within two years of the close of escrow but the complaint was amended to include the broker almost three years after the close. The trial court denied a summary judgment on the statute of limitations issue and the broker appealed. The court issued a published decision stating that the time to file started when the buyers discovered the agent’s alleged role in covering up the defect during discovery in their suit against the construction company and the sellers. The decision has some other disturbing language that appears to expand brokers duties. The parties are seeking a rehearing that is currently pending. The Trustees approved funding and an amicus in support of the broker’s petition to the California Supreme Court.
RealPro v. Smith Residual Company. In this case, the listing broker and seller entered into a listing for $17,000,000 all cash. Working through an agent, a buyer offered $17,000,000 in cash with no contingencies. The seller refused, and raised the price to $19,500,000. No purchase contract was signed. The listing was on an AIR listing contract which makes buyers’ agents third party beneficiaries. The agent representing the buyer sued the seller to recover the commission. The appellate court held that the offer did not trigger a commission right because the contractual language “or other such price and terms acceptable to [Sellers],…” indicated that the seller had to agree to the price before the broker earned the commission. The court also discussed whether multiple offers would have entitled many brokers to a commission. The case threatens the rule that, though a seller is not required to enter into a contract on a full price, all terms offer, that the listing broker is entitled to a commission. Although this case is of a buyer’s agent suing as a third party beneficiary, the language can be applied to the listing broker’s right to a commission as well. The Trustees approved filing an amicus letter supporting a hearing before the California Supreme Court.
Dalton v. Century 21 Alpha. In this case, a brokerage firm acted for both buyer and seller in the purchase of a home. The brokers allegedly represented the property was connected to city sewer services when it was on septic tank. The trial court found both the seller and the brokers negligent, but found the seller’s percentage of fault was zero. The seller sued the broker to recover attorneys fees the seller incurred in defending the case under implied indemnity and “tort of another” theories. The Trustees conditionally approved an amicus supporting the broker after coordinating and discussing the case further with counsel for the brokers and agents.
1. That C.A.R. adopt a "NOT REAL ESTATE RELATED" position on Proposition (Number Pending). Changes Law to Allow Auto Insurance Companies to Set Prices Based on Driver’s History of Insurance Coverage. Initiative Constitutional Amendment. for the November 2012 state ballot.
2. That C.A.R. adopt a "NOT REAL ESTATE RELATED" position on Proposition (Number Pending). Redistricting. Senate Districts. Referendum. for the November 2012 state ballot.
Note: C.A.R. has previously taken the following positions on upcoming 2012 state ballot propositions:
Proposition 28: Legislative Term Limits Reform Act of 2012. Initiative Constitutional Amendment. for the June 2012 ballot. “NOT REAL ESTATE RELATED”
Proposition 29: HOPE 2010: California Cancer Research Act. Initiative Constitutional Amendment. for the June 2012 ballot. “NOT REAL ESTATE RELATED”
An as yet unnumbered Proposition for the November 2012 ballot entitled Safe, Clean, and Reliable Drinking Water Supply Act. “NEUTRAL”
An as yet unnumbered Proposition for the November 2012 ballot entitled Prohibits Political Contributions by Payroll Deduction. Prohibitions on Contributions to Candidates. Initiative Constitutional Amendment. “NOT REAL ESTATE RELATED”
An as yet unnumbered Proposition for the November 2014 ballot entitled State Budget. Changes California Budget Process. Limits State Spending. Increases “Rainy Day” Budget Stabilization Fund. “NOT REAL ESTATE RELATED”
1. That, subject to policy change by NAR, C.A.R. amend its Model bylaws to strengthen the membership criteria to allow an association to consider all violations of civil rights laws, real estate laws and other laws prohibiting unprofessional conduct rendered as final judgments against the applicant in the past 10 years.
2. That the following applicants be granted C.A.R. Honorary Member-for-Life status:
Bay East AOR
California Desert AOR
Coastal Mendocino AOR
Conejo Simi Moorpark AOR
East Valley AOR
El Dorado County AOR
Greater Antelope Valley AOR
Newport Beach AOR
North San Diego County AOR
Joseph J. Villa
Orange County AOR
Pacific West AOR
Palos Verdes Peninsula AOR
Pismo Coast AOR
San Benito County AOR
San Francisco AOR
San Mateo County AOR
Santa Cruz County AOR
Jo Ann Nielsen
Joan Stoker Rost
South Bay AOR
Southland Regional AOR
Tulare County AOR
Ventura County Coastal AOR
West San Gabriel Valley AOR
Yosemite Gateway AOR
MLS/ Computer and Business Technology
1. That the MLS/Computer and Business Technology Committee supports the concept of going forward as the "MLS Policy Committee" thus removing CBT from its charge and transferring business technology issues into a separate Business Technology Forum at the C.A.R. meetings.
2. That, upon final approval by NAR, the C.A.R. Model MLS Auction Listing Rule be revised to better clarify that auction listings are not granted exceptions to other MLS Rules by adding the following introductory sentence to the C.A.R. Model MLS Auction Listing Rule (Section 7.24):
Only Auction Listings which comply with these MLS rules and regulations, including but not limited to sections 7.12 and 7.13, may be submitted to the Service.
3. That, upon final approval by NAR, the C.A.R. Model MLS Rules be revised to add language in furtherance of mandatory NAR policy which requires that MLSs make the display of price change and days on market information for use in brokerage activity a non-confidential field as set forth below:
7.8 Change of Listing Information. Listing brokers shall input any change in listing information, including the listed price or other change in the original listing agreement, to the MLS within 2 days after the authorized change is received by the listing broker. By inputting such changes to the MLS, the listing broker represents that the listing agreement has been modified in writing to reflect such change or that the listing broker has obtained other legally sufficient written authorization to make such change. MLS tracking of price change information, if any, shall be classified as “non-confidential” for the purpose of allowing Participants and Subscribers to make such information available to clients or customers pursuant to Sections 12.15.1 (Client Copies) and 12.19 (VOWs). [Whether display of this field is permitted for advertising purposes, including IDX display set forth in Section 12.16, is at the discretion of the MLS.]
7.26 Days on Market/Cumulative Days on Market Calculation. The calculation of Days on Market (DOM) is based on the listing number assigned to the property by the MLS and is tied to the brokerage firm holding the listing. The calculation of Cumulative Days on Market (CDOM) is based on the Assessor’s Parcel Number (“APN”) until the earlier of a change of ownership or the property is not available for sale and no listing agreement is in effect for a period of 90 days or more. MLS tracking of this field, if any, shall be classified as “non-confidential” for the purpose of allowing Participants and Subscribers to make such information available to clients or customers pursuant to Sections 12.15.1 (Client Copies) and 12.19 (VOWs). [Whether display of this field is permitted for advertising purposes, including IDX display set forth in Section 12.16, is at the discretion of the MLS.]
4. It was reported for information only that the MLS/CBT Committee will form an internal Work Group to look at the issue of whether to remove from the C.A.R. Model MLS Rules the ability in a short sale for a listing broker to reduce commission when a lender reduces the gross commission in the course of approving the sale.
1. That the following be designated to serve as State Allocated NAR Directors for a three year term ending November 2015 and as Alternates for the 2013 elective year.
Le Francis Arnold, Rancho Southeast
Malcolm Bennett, Rancho Southeast
Sharon Bowler, Citrus Valley
Diana Bull, Santa Barbara
Otto Catrina, Bay East
Carolyn D’Agosta, North San Diego
James Liptak, Paso Robles
Ted Loring, Humboldt
Allen Okamoto, San Francisco
Beth L. Peerce, Southland Regional
Jeannette Way, Northern Solano
Judy Zeigler, California Desert
ALTERNATES FOR 2013 (in priority order)
David Barca, Silicon Valley
Timothy Brigham, Big Bear
Randall Traw, Arcadia
Wendy Furth, Southland Regional
Greg Galli, Greater Antelope Valley
Bobbie Nelson, Santa Cruz County
Heather Ozur, California Desert
Kelvin Wong, Arcadia
2. That the following individuals be elected as Directors For Life:
3. That Joel S. Singer be elected as Chief Executive Officer/State Secretary for the year 2013.
4. That Kevin Brown be elected as President-Elect for the year 2013.
5. It was reported for information only that Don Faught will become President for the year 2013, and that Chris Kutzkey will continue to serve as 2012-2013 Treasurer.
PAC Bylaws Review Task Force
1. That the amendments to the CREPAC, CREIEC, CREPAC/Federal and IMPAC bylaws as per the April 3, 2012 notice be approved with the following change to the transition language:
CHANGES SHOWN FROM NOTICE: Transition from three-year terms to two-year terms (effective January 2013 until those serving at that time have completed their service): Trustees elected in 2012 for terms commencing in 2013 will serve two-year terms. Trustees that are currently serving three-year terms will be able to serve their entire term. Any Trustee serving one three-year term is eligible for a consecutive term. Any Trustee that has served two consecutive three-year terms must not be an IMPAC (or CREPAC, CREIEC or CREPAC/Federal) Trustee for twenty-four (24) consecutive months before being eligible to serve as Trustee. In order to allow either ten (10) or eleven (11) Trustees to be up for re-election each year, in 2013, eleven (11) Trustees shall be elected for two-year terms for the 2014 elective year. Transition from the number of trustees from 15 to 21 and alternates from 9 to 6 shall be effective for the terms commencing 2014, with nominations to take place in 2013.
Political Activities Fund
1. It was reported for information only that the following allocations have been approved:
Up to $10,000 to fund a qualitative research study for the Member Education and REALTOR® programs.
Up to $15,000 to fund the 2012 C.A.R. Government Affairs Directors Institute.
Up to $5,000 to cover administrative costs for the Political Activities Fund Committee.
Up to $482,870 to fund the 2012 Member Education Campaign.
Up to $25,000 to fund a member survey focusing on legislative issues and themes in support of the Member Education Campaign.
Up to $5,100 in additional funds for the 2012 Field Program for additional consulting fees.
Up to $18,000 in additional funds for the 2012 Member Mobilization Program for additional consulting fees.
1. That C.A.R. adopt a procedure to implement a pilot program so that a suspension or expulsion that is imposed by a local A.O.R. for violation of the Code of Ethics shall be reported to the state association to be reviewed by a panel of state directors, and possibly imposed on a state-wide basis, with authority given to staff to draft all documents and take all steps necessary for implementation, pending approval of the program by NAR.
REALTOR® Action Fund
1. That C.A.R. and the local associations add either the $148 “True Cost of Doing Business” or the $49 “Minimum Cost of Doing Business” above the line on their dues billing statement (2013 and forward).
2. That the REALTOR® Action Fund political contributions allocation formula be changed as follows for 2013.
70% to CREPAC/Federal
30% to CREPAC/State LCRC subaccounts
Standard Forms Advisory
1. There were 10 Regional Representatives reports given to the Standard Forms Advisory Committee (SFAC) meeting. The committee received comments on the removal of disclosure form checkboxes in the RPA. Additional comments were received on the Office Management Agreement and the Short Sale Addendum.
The SFAC reviewed the following drafts scheduled for release in May 2012:
Office Management Agreement (OMA) – new form
Buyer Representation Agreement (BRE)
Buyer Representation Agreement Non-Exclusive (BRNE)
Buyer Representation Agreement Non-Exclusive/Not for Compensation (BRNN)
Personal Assistant Contract (PAC)
Broker/Associate-Licensee/Assistants Three Party Agreement (TPA)
Extensive time was taken by the group discussing the OMA form and concerns regarding the delineation and interpretation of what constitutes a manager by the DRE. Additional discussion was had regarding the Buyer Representation forms.
The SFAC also reviewed drafts scheduled for release November 2012:
Parking and Storage Disclosure (PSD) – new form
Contingency for Sale or Purchase of Other Property (COP)
Probate Purchase Agreement and Joint Escrow Instructions (PPA)
Residential Listing Agreement (RLA)
Statewide Buyer and Seller Advisory (SBSA)
The November forms will undergo some minor modification as a result of the SFAC’s discussion and input. The Purchase Agreement Addendum (PAA) was also discussed and the SFAC decided to separate each paragraph into its own stand-alone form. In addition, the SFAC reviewed a recommendation by the C.A.R. Defense Strategy Advisory Committee, which was discussed and will be reviewed further.
The SFAC also received updates regarding the following sub-committees/study groups:
Probate Study Group
zipForm/SFAC Joint Initiative
The committee also received an update regarding the local forms library pilot program. Finally, the SFAC reviewed 22 of the 95 comments received and will have a conference call to review the balance of comments.
Strategic Planning and Finance
1. That the audited Statement of Income and Expenses by program for the twelve months ending December 31, 2011 be approved.
Revenue of $26,168,100
Expenses of $24,853,000
An excess of income (including investment income) over expenses of $1,315,100
Political Activities Fund
An excess of income over expenses of $1,641,200
Issues Action Fund
An excess of income over expenses of $916,300
The C.A.R. Balance Sheet as of December 31, 2011
Total assets of $60,591,900 (of which $50,088,500 are current assets)
Total liabilities of $5,918,800 (of which $3,294,300 are current liabilities)
C.A.R. Fund Balance of $54,673,100
2. That the Statement of Income and Expenses by program for the three months ended March 31, 2012 be approved.
Revenue of $18,372,900
Expenses of $5,716,300
An excess of operating income (including investment income) over expenses of $12,656,600
Political Activities Fund
An excess of income over expenses of $2,513,900
Issues Action Fund
An excess of income over expenses of $1,185,600
REALTOR® Action Assessment totaling $6,682,200
The C.A.R. Balance Sheet as of March 31, 2012
Total assets of $75,739,900 (of which $65,344,200 are current assets)
Total liabilities of $7,538,700 (of which $7,437,000 are current liabilities)
C.A.R. Fund Balance of $68,201,200
3. That the Projected Statement of Income and Expenses by program for the year ending December 31, 2012 be approved.
Revenue of $27,379,600
Expenses of $27,408,200
An excess of expenses over income (including investment income) of $28,600
Political Activities Fund
An excess of income over expenses of $1,201,000
Issues Action Fund
An excess of income over expenses of $688,300, this amount will be allocated to IMPAC as approved by the Directors
REALTOR® Action Assessment
REALTOR® Action Assessment totaling $7,160,400
4. That up to $20,000 be approved for Gary Thomas’ installation as NAR 2013 President.
5. That up to $5,000 be approved for box lunches for the NAR 2012 mid-year meeting in Washington, D.C.
6. It was reported for information only that C.A.R. will create an Ethics and Professionalism Task Force.
Transaction and Regulatory
1. That C.A.R. "SUPPORT" the Governor's Reorganization Plan as it applies to the Department of Real Estate.