State Codes and Statutes

State Codes and Statutes

Statutes > California > Bpc > 10050-10087

BUSINESS AND PROFESSIONS CODE
SECTION 10050-10087



10050.  There is in the Business and Transportation Agency a
Department of Real Estate, the chief officer of which department is
named the Real Estate Commissioner.
   It shall be the principal responsibility of the commissioner to
enforce all laws in this part (commencing with Section 10000) and
Chapter 1 (commencing with Section 11000) of Part 2 of this division
in a manner which achieves the maximum protection for the purchasers
of real property and those persons dealing with real estate
licensees.



10051.  The commissioner shall be appointed by the Governor.



10052.  The commissioner shall have been for five years a real
estate broker actively engaged in business as such in California, or
shall possess related experience associated with real estate activity
in California for five years within the last 10 years.




10053.  The commissioner shall receive an annual salary as provided
in Chapter 6 (commencing with Section 11550) of Part 1 of Division 3
of Title 2 of the Government Code, to be paid monthly out of the
State Treasury upon a warrant of the Controller, and shall be allowed
his actual and necessary expenses in the discharge of his duties.




10071.  The commissioner shall enforce the provisions of this part
and of Chapter 1 of Part 2. He has full power to regulate and control
the issuance and revocation, both temporary and permanent, of all
licenses to be issued under the provisions of this part, and to
perform all other acts and duties provided in this part and Chapter 1
of Part 2 and necessary for their enforcement.



10073.  The commissioner shall employ such deputies, clerks and
employees as he may need to discharge in proper manner the duties
imposed upon him by law.


10074.  After qualifying as such neither the commissioner nor any of
the deputies, clerks or employees of the department shall be
interested in any mineral, oil or gas business, mineral, oil or gas
brokerage firm, real estate company or any real estate brokerage
firm, as director, stockholder, officer, member, agent or employee,
or act as a broker or salesman, or act as a co-partner or agent for
any broker or brokers, salesman or salesmen.



10075.  Deputies, clerks and employees shall perform such duties as
the commissioner shall assign to them.
   Subject to the powers of the State Personnel Board and the
Director of Finance, the commissioner shall fix the compensation of
such deputies, clerks and employees, which compensation shall be paid
monthly on a certificate of the commissioner, and on the warrant of
the Controller out of the State Treasury.



10076.  Each deputy shall, after his appointment, take and subscribe
to the constitutional oath of office and file the same in the office
of the Secretary of State.



10077.  The commissioner shall have his principal office in the City
of Sacramento, and may establish branch offices in the City and
County of San Francisco, the City of Los Angeles and in such other
cities as the commissioner may deem necessary, subject to the
approval of the Department of Finance.



10078.  The commissioner shall adopt a seal with the words "Real
Estate Commissioner State of California" and such other device as the
commissioner may desire engraved thereon, by which he shall
authenticate the proceedings of his office.
   Copies of all records and papers in the office of the commissioner
certified under the hand and seal of the commissioner shall be
received in evidence in all cases equally and with like effect as the
originals.


10079.  The Attorney General shall render to the commissioner
opinions upon all questions of law relating to the construction or
interpretation of this part or Chapter 1 of Part 2 or arising in the
administration thereof that may be submitted to him by the
commissioner. The Attorney General shall act as the attorney for the
commissioner in all actions and proceedings brought by or against him
under or pursuant to any of the provisions of this part or of
Chapter 1 of Part 2.


10080.  The commissioner may adopt, amend, or repeal rules and
regulations that are reasonably necessary for the enforcement of the
provisions of this part and of Chapter 1 (commencing with Section
11000) of Part 2 of this division. The rules and regulations shall be
adopted, amended, or repealed in accordance with the provisions of
the Administrative Procedure Act.



10080.5.  In the event the commissioner employs the services of an
agency engaged in the business of furnishing credit reports, such
agency shall have been engaged in such business continuously in this
State for a period of not less than five years prior to the time of
such employment.



10081.  (a) Whenever the commissioner believes from evidence
satisfactory to him that any person has violated or is about to
violate any of the provisions of this part or of Chapter 1
(commencing with Section 11000) of Part 2 or any order, license,
permit, decision, demand or requirement, or any part or provision
thereof, he or she may bring an action in the name of the people of
the State of California in the superior court of the State of
California against that person to enjoin him or her from continuing
the violation or engaging therein or doing any act or acts in
furtherance thereof.
   In this action an order or judgment may be entered awarding such
preliminary or final injunction as may be proper, but no preliminary
injunction or temporary restraining order shall be granted without at
least five days' notice to the defendant.
   If the commissioner makes a showing satisfactory to the court that
the violations or threatened violations jeopardize funds and
properties of others in the custody or under the control of the
defendant, the court may appoint a receiver for management of the
business of the defendant, including, but not limited to, the funds
and properties of others in his or her possession or may make any
other order as it deems appropriate to protect and preserve those
funds and properties.
   The order appointing the receiver shall specify the source of the
funds for payment of the fees of the receiver and the costs
attributable to administering the receivership. Unless provided for
in the order, the commissioner shall not be liable for payment of the
fees or costs.
   (b) The commissioner may include in any action authorized by
subdivision (a), a claim for restitution on behalf of the persons
injured by the act or practice constituting the subject matter of the
action, and the court shall have jurisdiction to award appropriate
relief to such persons.


10081.5.  Whenever the commissioner believes from evidence
satisfactory to him or her that any real estate licensee has violated
or is about to violate, the provisions of Section 10145, the
commissioner may bring an action in the name of the people of the
State of California, in the superior court of the State of
California, to enjoin the licensee from continuing the violation or
engaging therein or doing any act or acts in furtherance thereof.
   In the event the commissioner has conducted an audit which
reflects commingling or conversion of trust funds in excess of ten
thousand dollars ($10,000), the court may enter an order restraining
the licensee from doing any act or acts in furtherance thereof, and
from further exercising the privileges of his or her license pending
further order of the court, provided that a hearing shall be held on
the order within five days after the date thereof.
   After such hearing in the manner provided by law, an order may be
entered appointing a receiver, or such other order as the court may
deem proper. The order appointing the receiver shall specify the
source of the funds from which the fees of the receiver and the costs
of administering the receivership are to be paid. Unless provided
for in the order, the commissioner shall not be liable for payment of
the fees or costs.
   A receiver appointed by the court pursuant to this section may,
with the approval of the court, exercise all of the powers of the
licensee or its officers, directors, partners, trustees, or persons
who exercise similar powers and perform similar duties, including the
filing of a petition for bankruptcy of the licensee.



10082.  The commissioner may publish or cause to be published at
appropriate intervals a directory or list of licensed brokers and
salesmen and may publish therewith such matter as he may deem
pertinent to this part and Chapter 1 (commencin with Section 11000)
of Part 2. He shall furnish one copy of such directory to each
licensed broker upon his request and the payment of an appropriate
charge based upon cost of publication. Such directory may contain
copies of the Real Estate Law, Chapter 1 (commencing with Section
11000) of Part 2 of Division 4 of the Business and Professions Code,
and the Rules and Regulations of the Real Estate Commissioner.




10083.  The commissioner may periodically issue a bulletin
containing matter relating to the department, and to the provisions
of this part and of Chapter 1 (commencing with Section 11000) of Part
2, and the administration thereof, and may publish the same
character of matter in any established periodical published in the
state which in his opinion would be most likely to disseminate such
matter and information to licensees under this part.



10084.  The commissioner may prepare a pamphlet or brochure dealing
with disclosures of information in residential real estate
transactions. The costs of preparation and distribution may be paid
from such moneys as may from time to time be appropriated from the
Real Estate Fund for education and research. The commissioner shall
make copies of the pamphlet or brochure available upon request to
sellers, buyers, and real estate licensees for a fee commensurate
with the cost of preparation and distribution. Such fees as are
collected shall be paid into the education and research account of
the Real Estate Fund.


10084.1.  (a) Notwithstanding Section 10450.6, on or before January
1, 1991, the department, using funds appropriated from the Education
and Research Account in the Real Estate Fund, shall develop a booklet
to educate and inform consumers on all of the following:
   (1) Common environmental hazards that are located on, and affect,
real property. The types of common environmental hazards shall
include, but not be limited to, asbestos, radon gas, lead-based
paint, formaldehyde, fuel and chemical storage tanks, and water and
soil contamination.
   (2) The significance of common environmental hazards and what can
be done to mitigate these hazards.
   (3)  What sources can provide more information on common
environmental hazards for the consumer.
   (b) The department shall seek the advice of the State Department
of Health Services to assist it in determining the contents of the
booklet prepared pursuant to this section, and shall seek the
assistance of the State Department of Health Services in the writing
of the booklet.


10085.  The commissioner may require that any or all materials used
in obtaining advance fee agreements, including but not limited to the
contract forms, letters or cards used to solicit prospective
sellers, and radio and television advertising be submitted to him or
her at least 10 calendar days before they are used. Should the
commissioner determine that any such matter, when used alone or with
any other matter, would tend to mislead he or she may, within 10
calendar days of the date he or she receives same, order that it not
be used, disseminated, nor published. Any person or entity using,
disseminating, or publishing any matter which the commissioner has
ordered, pursuant to this section, not to be used, published, or
disseminated shall be guilty of a misdemeanor punishable by a fine
not exceeding two thousand five hundred dollars ($2,500) or by
imprisonment in the county jail not exceeding six months, or both,
for each such use, dissemination, or publication.
   The commissioner may determine the form of the advance fee
agreements, and all material used in soliciting prospective owners
and sellers shall be used in the form and manner which he or she
determines is necessary to carry out the purposes and intent of this
part.
   Any violation of any of the provisions of this part or of the
rules, regulations, orders or requirements of the commissioner
thereunder shall constitute grounds for disciplinary action against a
licensee, or for proceedings under Section 10081 of this code, or
both. These sanctions are in addition to the criminal proceedings
hereinbefore provided.



10085.5.  (a) It shall be unlawful for any person to claim, demand,
charge, receive, collect, or contract for an advance fee (1) for
soliciting lenders on behalf of borrowers or performing services for
borrowers in connection with loans to be secured directly or
collaterally by a lien on real property, before the borrower becomes
obligated to complete the loan or, (2) for performing any other
activities for which a license is required, unless the person is a
licensed real estate broker and has complied with the provisions of
this part.
   (b) This section does not prohibit the acceptance or receipt of an
advance fee by any bank, savings association, credit union,
industrial loan company, or person acting within the scope of a
license issued to that person pursuant to Division 9 (commencing with
Section 22000) of the Financial Code, in connection with loans to be
secured directly or collaterally by a lien on real property. This
section does not apply to charges made by title insurers and
controlled escrow companies pursuant to Chapter 1 (commencing with
Section 12340) of Part 6 of Division 2 of the Insurance Code.
   (c) A violation of this section is a public offense punishable by
a fine not exceeding ten thousand dollars ($10,000), by imprisonment
in the county jail for a term not to exceed six months, or by both
that fine and imprisonment, or if by a corporation, the violation is
punishable by a fine not exceeding fifty thousand dollars ($50,000).



10085.6.  (a) Notwithstanding any other provision of law, it shall
be unlawful for any licensee who negotiates, attempts to negotiate,
arranges, attempts to arrange, or otherwise offers to perform a
mortgage loan modification or other form of mortgage loan forbearance
for a fee or other compensation paid by the borrower, to do any of
the following:
   (1) Claim, demand, charge, collect, or receive any compensation
until after the licensee has fully performed each and every service
the licensee contracted to perform or represented that he, she, or it
would perform.
   (2) Take any wage assignment, any lien of any type on real or
personal property, or other security to secure the payment of
compensation.
   (3) Take any power of attorney from the borrower for any purpose.
   (b) A violation of this section by a natural person who is a
licensee is a public offense punishable by a fine not exceeding ten
thousand dollars ($10,000), by imprisonment in the county jail for a
term not to exceed one year, or by both that fine and imprisonment,
or if by a corporation, the violation is punishable by a fine not
exceeding fifty thousand dollars ($50,000). These penalties are
cumulative to any other remedies or penalties provided by law.
   (c) This section shall apply only to mortgages and deeds of trust
secured by residential real property containing four or fewer
dwelling units.
   (d) This section shall remain in effect only until January 1,
2013, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2013, deletes or extends
that date.


10086.  (a) If the commissioner determines through an investigation
that (1) a person has engaged or is engaging in an activity which is
a violation of a provision of this part, other than a provision of
Article 8 (commencing with Section 10249) of Chapter 3, or which is a
violation of a regulation of the commissioner adopted for the
purpose of implementing any provision of this part, other than a
regulation adopted pursuant to a provision of Article 8 (commencing
with Section 10249) of Chapter 3, or (2) a real estate broker has
engaged in or is engaging in an activity which is a violation of a
provision of Division 6 (commencing with Section 17000) of the
Financial Code, and which is not exempt pursuant to paragraph (4) of
subdivision (a) of Section 17006, the commissioner may direct the
person to desist and refrain from such activity by issuance of an
order specifying the nature of the activity and the factual and legal
basis for his or her determination. The respondent to whom the order
is directed shall immediately, upon receipt of the order, cease the
activity described in the order.
   (b) The respondent may, within 30 days after service of the order
to desist and refrain, file a request for a hearing. If, with the
request for hearing, the respondent also files a written verification
that the order of the commissioner precludes him or her from further
engaging in a substantial proportion of his or her business, the
commissioner shall, within 10 days thereafter, file an action in
superior court to restrain the respondent from continuing the
activity or doing any act in furtherance thereof pending the
completion of a hearing pursuant to Chapter 5 (commencing with
Section 11500) of Part 1 of Division 3 of Title 2 of the Government
Code.
   If the commissioner fails to bring the action in superior court
within the time prescribed by this section, or if the court refuses
to restrain the respondent pending the decision of the commissioner
following the administrative hearing, the respondent may resume the
activities in question pending the rendering of the decision of the
commissioner following the administrative hearing.
   (c) The administrative hearing shall be commenced by the
commissioner within 30 days after receipt of respondent's request
unless the respondent agrees to a postponement. If the hearing is not
commenced within 30 days after receipt of respondent's request or on
the date to which continued with respondent's consent, or if the
commissioner does not render a decision within 15 days after receipt
of the proposed decision following the hearing, the order shall be
deemed rescinded.
   (d) The provisions of Section 11019, and not the provisions of
this section, shall apply in the case of an activity which the
commissioner determines to be in violation of Article 8 (commencing
with Section 10249) of Chapter 3 or of a regulation of the
commissioner for implementation of any provision of that article.




10087.  (a) In addition to acting pursuant to the authority provided
under Sections 10086, 10176, and 10177, the commissioner may, after
appropriate notice and opportunity for a hearing, by order, suspend,
or bar from any position of employment, management, or control, for a
period not exceeding 36 months, a real estate salesperson or real
estate broker, or an unlicensed person issued an order under Section
10086, if the commissioner finds either of the following:
   (1) That the suspension or bar is in the public interest and that
the person has committed or caused a violation of this division or
rule or order of the commissioner, which violation was either known
or should have been known by the person committing or causing it or
has caused material damage to the public.
   (2) That the person has been convicted of or pleaded nolo
contendere to any crime, or has been held liable in any civil action
by final judgment, or any administrative judgment by any public
agency, if that crime or civil or administrative judgment involved
any offense involving dishonesty, fraud, or deceit, or any other
offense reasonably related to the qualifications, functions, or
duties of a person engaged in the real estate business in accordance
with the provisions of this division.
   (b) Within 15 days from the date of a notice of intention to issue
an order pursuant to subdivision (a), the person may request a
hearing under the Administrative Procedure Act (Chapter 4.5
(commencing with Section 11400) of Division 3 of Title 2 of the
Government Code). If no hearing is requested within 15 days after the
mailing or service of that notice and none is ordered by the
commissioner, the failure to request a hearing shall constitute a
waiver of the right to a hearing.
   (c) Upon receipt of a notice of intention to issue an order
pursuant to this section, the person who is the subject of the
proposed order is immediately prohibited from engaging in any
business activity involving real estate that is subject to regulation
under this division.
   (d) Persons suspended or barred under this section are prohibited
from participating in any business activity of a real estate
salesperson or a real estate broker and from engaging in any real
estate-related business activity on the premises where a real estate
salesperson or real estate broker is conducting business. Persons
suspended or barred under this section are also prohibited from
participating in any real estate-related business activity of a
finance lender, residential mortgage lender, bank, credit union,
escrow company, title company, or underwritten title company.