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2018 Q&A Revisions

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The Abandoned Personal Property After Termination of Tenancy Q&A has been revised. Questions #30 and #31, following a change in the law, now state that a commercial landlord may keep, sell, or destroy the tenant’s abandoned personal property, after having provided notice, when the landlord reasonably believes the property to be worth less than  either two thousand five hundred dollars ($2,500) or an amount equal to one month’s rent for premises that were occupied, whichever is greater. If the worth of the abandoned personal property exceeds this threshold amount, the landlord would be obliged to sell the property at public auction.


The Rental Property and Foreclosure Q&A has been revised as follows: 

Question #14 explains that the potential rights of a tenant, who remains on a property after foreclosure, to receive a 90-day notice or even enforcement of a full term lease, are protections under California law which are due to expire at the end of 2019. However, the federal “Protecting Tenants at Foreclosure Act,” on which the California law was modeled, and which contains nearly identical tenant protections to the California law, was permanently reauthorized on May 24, 2018.

Question #23 notes that up until January 1, 2018 a landlord was required by law to disclose a notice of default to a prospective tenant. (Cal. Civil Code § 2924.85). This law expired and has not been renewed. Nonetheless, the problems associated with renting to new tenants a property presently in default are manifold: owners may neglect maintenance and repairs or even payment of the utilities; foreclosure could terminate the leasehold rights of the tenant; and the security deposit can be difficult for a tenant to recover after foreclosure. For these reasons, it is recommended that a property clearly disclose (with the landlord’s permission) that the property is in default at the time of signing the lease.


The Do-Not-Call, Do-Not-Fax, Do-Not-Email Laws Q&A has been revised as follows:

Question #33 has been added to explain what qualifies as an “autodialer” for purposes of the federal Telephone Consumer Protection Act. Under recent court rulings, it is a system that has the present ability as opposed to the potential capacity to store or produce random numbers (ACA International v FCC (885 F3d 687 (2018), rejecting the previous “capacity” test). Previously, the Federal Communications Commissions in a 2015 Declaratory Ruling had adopted a liberal test that using equipment that had the “capacity” to store or produce telephone numbers using a random or sequential number generator would qualify regardless of whether the system was actually being used in that manner. (See 30 FCC Rcd. 7961 (F.C.C.), 30 F.C.C.R. 7961, 62 Communications Reg. (P&F) 1539, 2015 WL 4387780). This ruling incentivized litigation in the form of class actions against unwary businesses that were not in fact using auto-dialers. Some of the cases even involved real estate brokerages

Question #34 was added to provide conservative risk management advice on how to ensure that a business remains compliant when using auto-dialers.   


The Protect Your Brokerage From Cybercrime Q&A has been updated:

Question #5 now includes the following advice from the FBI on implementing strong email protection practices:

Avoid free web-based e-mail accounts altogether: Establish a company domain name and use it to establish company e-mail accounts in lieu of free, web-based accounts.

The Online Privacy Laws Affecting REALTORS Q&A has been updated to include information about the California Consumer Privacy Act (CCPA). The CCPA is a sweeping consumer protection law designed to allow consumers to control their personal information by, among other things, granting the consumer the right to require that their personal information not be sold and that it be deleted from a company’s business records.

The CCPA applies to any for profit business doing business in California that directly or indirectly collects consumers’ personal information, provided that one of three conditions is met:

  1. The business has $25 million or more in annual gross revenues;
  2. The business derives half or more of its revenues from the sale of consumer data; or
  3. The business annually buys, receives for its commercial purposes, sells, or shares for its commercial purposes, the personal information of 50,000 or more consumers, households or devices (which breaks down to as little as 137 transactions or website visitors per day on average).

The CCPA becomes effective in 2020.

Questions 16 through 22 have been added to discuss the CCPA

Additionally, this Q&A has been updated to include information about the European Union’s General Data Protection Regulation (GDPR). This law came into effect on May 25, 2018, and even though it is a European law, it could impact some agents. The most likely scenario that might trigger compliance would involve, for example, a California agent advertising Pacific Coast holiday homes to German and Italian buyers. 

Questions 34 through 38 have been added to discuss the GDPR.

The Team Names Q&A has been revised as follows:

  • Question 12 now provides a more detailed explanation of the requirement that team name advertising include the broker’s name OR the broker’s name and license number. Although, the team name law as originally enacted in 2015 required both the broker’s name and license number on all team name advertising, less than one year later, Senate Bill 710 was signed by Governor Brown as urgency legislation effective August 30, 2016, clearly indicating that a team has the option of choosing to have either the broker’s name OR both the broker’s name and license number. Question 12 now links to both SB 710 and the Senate Rules Committee Floor Analysis.

The Changing Offices: Transfer of Listings, Buyers, and Procedures for Changing Brokerages Q&A has been revised as follows: 

  • Question 13 has been added to explain when the DRE must be notified of the retention or termination of a broker-associate. It states that:
  • The responsible broker must notify the DRE within five days whenever a real estate broker enters into a written agreement to act in the capacity of a salesperson (i.e., to act as a broker-associate).
  • The responsible broker has 10 days to notify the DRE after termination of a broker-associate. 
  • Both the responsible broker and broker-associate must sign RE 215 for retention, but for the termination, only the signature of the responsible broker is required by the DRE.
  • These changes are pursuant to the Regulations of the Real Estate Commissioner § 2752 which was amended effective May 31, 2018.

The Residential Rent Control Relief Law Q&A has been updated as follows:

  • Questions 14 through 18 have been added discussing the Costa-Hawkins repeal measure that will likely appear on the 2018 November ballot.  Formally known as “The Affordable Housing Act” this ballot initiative quite simply repeals the Costa-Hawkins Rental Housing Act along with all of its protections.
  • Since the repeal measure does not actually enact any rent control law in and of itself, it’s passage will not result in any immediate change. Further out, however, cities will be free to enact rent control laws as they see fit. Since rent controls inevitably reduce the supply of housing, California’s housing crisis will worsen as a result of the repeal measure should it pass.
  • At its spring business meetings, the C.A.R. Board of Directors took action against the repeal measure by authorizing the spending of $1.5 million to oppose to it. 

The Foreclosure Timeline has been updated to reflect changes in the California Homeowner Bill of Rights due to its various provisions sunsetting and being replaced in 2018. 

  • The pre-NOD contact requirements are now the same for all first mortgage lienholders regarding owner occupied 1 to 4 dwelling units. Except, the requirement to establish a single point of contact for a borrower who has requested a foreclosure prevention alternative still only applies to those lenders who have foreclosed on over 175 California residential properties during its immediately preceding annual reporting period.

  • The recording of an NOD is now permitted even though a completed foreclosure prevention alternative application has been submitted. (Nonetheless, The Consumer Financial Protection Bureau rules prohibit commencing a foreclosure procedure if a borrower has already submitted complete application for a loan modification or other alternative to foreclosure, and it is pending review).

  • The prohibition against recording of a notice of sale or conducting a foreclosure sale upon receipt of a completed foreclosure prevention alternative has been extended to all first mortgage lienholders of owner occupied 1 to 4 dwelling units.

 The Protect Your Brokerage from Cybercrime Q&A has been updated as follows:

  • The introduction now advises: If you or your client has been the victim of a cybersecurity breach and funds have been stolen or lost, you should “CALL THE BANK IMMEDIATELY” and get them to stop the wire. Do not call anyone else first. Time is of the essence. If the wire has already gone through, you have at most 72 hours to reverse it.
  • Under Question 4 the Federal Trade Commission flyer with advice on being alert to suspicious emails has been reprinted.
  • Question 6 has been added to discuss the advantages of using a password manager. 

 The Capital Gains Tax Q&A has been revised as follows:

  •  The name of this Q&A is now “Capital Gains Tax.” It was previously entitled, “Capital Gains Tax and Health Care Reform Tax Impact.”
  •  Question 3 was added stating that the Tax Cuts and Jobs Act (TCJA) passed in December of 2017 did not change the holding period needed to obtain the exclusion from capital gains on sale of a primary residence. Despite both the House and Senate versions of the TCJA proposing to extend the holding period, N.A.R. successfully lobbying to have the law remain unchanged. Under current law, to qualify for the exclusion you must have owned and used the property as your principal residence for at leas two of the last five years ending on the date of sale.
  •  Question 25 was revised to indicate that effective January 1, 2018, under the TCJA, it is only real property, as opposed to personal property, that qualifies for a 1031 exchange.
  •  Questions 26, 27, 28 and 29 were retained to describe in brief the health care “Net Investment Tax.” This tax was retained under the TCJA. All other questions pertaining to the tax impacts of the Affordable Care Act have been deleted.  

The Changing Offices: Transfer of Listings & Buyers, and Procedures for Changing Brokerages Q&A has been revised to include selected questions from CalBRE’s FAQ re Broker-Associates. Questions 7, 8, 9, 14, 15, 16, 17, 18, 19 and 20 have been added.

  • Under recent changes to the Real Estate Law concerning broker-associates, the responsible broker must notify CalBRE whenever a broker-associate affiliation is created or terminated. CalBRE has created Form RE 215 just for this purpose, and it must be signed by both the broker-associate and the responsible broker. Presently, the e-licensing system cannot be used for this purpose, so the form must be submitted in hard copy. CalBRE has created an FAQ which details various aspects of the new law.

The Internal Revenue Code 1031: Tax Deferred Exchanges Q&A has been revised as follows:

  • Questions 7 and 18 indicate that effective January 1, 2018, it is only real property, as opposed to personal property, that qualifies for a 1031 exchange.

  • Question 5 clarifies that 1031 exchanges are for property held for productive use in a trade or business, or for investment. A taxpayer who moves into an upleg property shortly after acquisition runs the risk of being denied tax deferral for failing to make a bona fide effort to use the property for business, trade or investment. Two years is generally considered a safe period but there is in fact no specified holding period. 

The Advertising Your Services Q&A has been revised as follows:

  • Question 5 has been added to explain that on advertising and marketing materials the designation before an agent’s license number may be “DRE,” “BRE,” or CalBRE.” Even if an agent elected to have a business card or signage that stated “RE Lic #” or something to that effect, that would always be appropriate.  

The Unlicensed Assistants Q&A has been revised as follows:

  • The Unlicensed Assistants chart has been updated to include a link to the DRE’s 2018 “Guidelines for Unlicensed Assistants who Work in the Real Estate Industry.” While this new publication contains no changes of significance regarding the role of unlicensed assistants, it does provide a detailed reiteration of the DRE’s existing views and guidance.  

The Marijuana Issues for REALTORS® Q&A has been revised as follows: 

  • Questions 37 and 39 have been revised in light of the decision of the Department of Justice to formally rescind the Obama era policy that had discouraged federal prosecutors from bringing charges of cannabis-related crimes in states that have legalized sales of the drug. While the rescission of this policy does not necessarily mean that the DOJ will immediately begin enforcement of federal cannabis law, it does free up federal prosecutors to use their discretion to enforce the Controlled Substances Act (CSA) as they would any other federal law. However, the Rohrabacher-Farr amendment regarding medical cannabis is presently still in effect, and precludes the federal government from using its resources to enforce the CSA regarding medical marijuana use if permitted under state law.

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