Senate Bill No. 269

Introduced by Senator Hill

February 14, 2013

An act to amend and renumber Section 10167.9 of, to amend and repeal Sections 10167.5, 10167.13, and 10167.16 of, to amend, repeal, and add Sections 10167, 10167.2, and 10167.3 of, to repeal Sections 10167.4, 10167.7, 10167.8, and 10167.17 of, and to repeal and add Section 10167.6 of, the Business and Professions Code, relating to real estate.

LEGISLATIVE COUNSEL’S DIGEST

SB 269, as introduced, Hill. Prepaid rental listing service.

The Real Estate Law provides for the regulation and licensing of prepaid rental listing services by the Real Estate Commissioner. Existing law prohibits a person from engaging in the business of prepaid rental listing services unless licensed in that capacity or licensed as a real estate broker. A willful violation of these provisions is a crime.

This bill would prohibit the department from issuing a prepaid rental listing service license. This bill, beginning January 1, 2015, would prohibit a person from engaging in that business unless licensed as a real estate broker. The bill would also require a specified written notice about refunds to be provided to the provided to the prospective tenant prior to the acceptance of a fee. The bill also would make related changes, including deleting provisions that pertain to prepaid rental listing service licensing.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

The Legislature finds and declares that requiring
a real estate license to lawfully provide prepaid rental listing
services serves the valid governmental purposes of public
protection and victims’ compensation. The safeguards contained
in this legislation are intended to reduce the significant and
unacceptably large amounts of prepaid rental listing service fraud
perpetrated against unsuspecting, prospective tenants by persons
who lack real estate licenses. The safeguards in this bill will also
permit persons who may be harmed through prepaid rental listing
service fraud to seek compensation from the Consumer Recovery
Account, a remedy which is not available to persons who obtain
prepaid rental listing services through a person that does not hold
a real estate license.

SEC. 2.  

Section 10167 of the Business and Professions Code
is amended to read:

10167.  

The definitions used in this section shall govern the
construction and terms as used in this article:

(a) “Prepaid rental listing service” means the business of
supplying prospective tenants with listings of residential real
properties for tenancy, by publication or otherwise, pursuant to an
arrangement under which the prospective tenants are required to
pay an advance or contemporaneous fee (1) specifically to obtain
listings or (2) to purchase any other product or service in order to
obtain listings, but which does not otherwise involve the
negotiation of rentals by the person conducting the service.
“Prepaid rental listing service” does not include the business of
providing roommate referral information designed to assist persons
in locating a roommate who meets various selection criteria related
to the prospective roommate’s personal traits, characteristics, habits
or preferences, and selection criteria related to the residential real
property occupied by the prospective roommate.

(b) “Licensee” means a person licensed to conduct a prepaid
rental listing service or a person engaged in the business of a
prepaid rental listing service under a real estate broker license.

(c) “Location” means the place, other than the main or branch
office of a real estate broker, where a prepaid rental listing service
business is conducted.

(d) “Designated agent” means the person who is in charge of
the business of a prepaid rental listing service at a given location.

(e) “Fee” means the charge required by a licensee (1) to obtain
listings of residential real properties for tenancy or (2) to purchase
any other product or service in order to obtain listings.

(f) “Service charge” means the amount of the fee that a licensee
may retain if a prospective tenant finds housing through a source
other than the listings supplied by the licensee.

begin insert

(g) This section shall remain in effect only until January 1, 2015,
and as of that date is repealed, unless a later enacted statute, that
is enacted before January 1, 2015, deletes or extends that date.

end insert

SEC. 3.  

Section 10167 is added to the Business and Professions
Code, to read:

10167.  

The definitions used in this section shall govern the
construction and terms as used in this article:

(a) “Prepaid rental listing service” means the business of
supplying prospective tenants with listings of residential real
properties for tenancy, by publication or otherwise, pursuant to an
arrangement under which the prospective tenants are required to
pay an advance or contemporaneous fee (1) specifically to obtain
listings or (2) to purchase any other product or service in order to
obtain listings, but which does not otherwise involve the
negotiation of rentals by the person conducting the service.
“Prepaid rental listing service” does not include the business of
providing roommate referral information designed to assist persons
in locating a roommate who meets various selection criteria related
to the prospective roommate’s personal traits, characteristics, habits
or preferences, and selection criteria related to the residential real
property occupied by the prospective roommate.

(b) “Licensee” means a person engaged in the business of a
prepaid rental listing service under a real estate broker license.

(c) “Location” means the place, other than the main or branch
office of a real estate broker, where a prepaid rental listing service
business is conducted.

(d) “Designated agent” means the person who is in charge of
the business of a prepaid rental listing service at a given location.

(e) “Fee” means the charge required by a licensee (1) to obtain
listings of residential real properties for tenancy or (2) to purchase
any other product or service in order to obtain listings.

(f) “Service charge” means the amount of the fee that a licensee
may retain if a prospective tenant finds housing through a source
other than the listings supplied by the licensee.

(g) This section shall become operative on January 1, 2015.

SEC. 4.  

Section 10167.2 of the Business and Professions Code
is amended to read:

10167.2.  

(a) It is unlawful for any person to engage in the
business of a prepaid rental listing service unless licensed in that
capacity or unless licensed as a real estate broker.

(b) (1) The requirements of this article apply only to the
provision of listings of residential real properties for tenancy by
prepaid rental listing services. Except if expressly provided
otherwise in this article, the requirements of this article do not
apply to any other goods or services sold by a prepaid rental listing
service as long as the purchase of those goods or services is not
required to obtain those listings, and as long as the purchase of
those goods or services is not included in the same contract as the
contract to provide those listings, and as long as the contract to
provide those listings clearly specifies that the purchase of any
other goods and services is optional, and as long as the price
charged for any other goods and services is fair and reasonable.

(2) In an action alleging that the price charged for any other
goods and services is not fair and reasonable, the burden shall be
on the commissioner to demonstrate that the price charged
unreasonably exceeds the fee customarily charged for the same or
comparable goods or services in the community in which the
prepaid rental listing service operates. The fact that the price
charged for goods or services exceeds the cost incurred by the
prepaid rental listing service shall not render the price charged for
the goods or services to be unfair or unreasonable, so long as the
price charged does not unreasonably exceed the fee customarily
charged for the same or comparable goods or services in the
community in which the prepaid rental listing service operates.

begin insert

(3) This section shall remain in effect only until January 1, 2015,
and as of that date is repealed, unless a later enacted statute, that
is enacted before January 1, 2015, deletes or extends that date.

end insert

SEC. 5.  

Section 10167.2 is added to the Business and
Professions Code, to read:

10167.2.  

(a) It is unlawful for any person to engage in the
business of a prepaid rental listing service unless licensed as a real
estate broker.

(b) (1) The requirements of this article apply only to the
provision of listings of residential real properties for tenancy by
prepaid rental listing services. Except if expressly provided
otherwise in this article, the requirements of this article do not
apply to any other goods or services sold by a prepaid rental listing
service as long as the purchase of those goods or services is not
required to obtain those listings, and as long as the purchase of
those goods or services is not included in the same contract as the
contract to provide those listings, and as long as the contract to
provide those listings clearly specifies that the purchase of any
other goods and services is optional, and as long as the price
charged for any other goods and services is fair and reasonable.

(2) In an action alleging that the price charged for any other
goods and services is not fair and reasonable, the burden shall be
on the commissioner to demonstrate that the price charged
unreasonably exceeds the fee customarily charged for the same or
comparable goods or services in the community in which the
prepaid rental listing service operates. The fact that the price
charged for goods or services exceeds the cost incurred by the
prepaid rental listing service shall not render the price charged for
the goods or services to be unfair or unreasonable, so long as the
price charged does not unreasonably exceed the fee customarily
charged for the same or comparable goods or services in the
community in which the prepaid rental listing service operates.

(c) This section shall become operative on January 1, 2015.

SEC. 6.  

Section 10167.3 of the Business and Professions Code
is amended to read:

10167.3.  

(a) A separate application for a license as a prepaid
rental listing service shall be made in writing for each location to
be operated by a licensee other than a real estate broker. Each
application shall be on forms provided by the department, shall be
signed by the applicant, and shall be accompanied by a one hundred
dollar ($100) application fee for the first location, and a twenty-five
dollar ($25) application fee for each additional location of the
applicant.

Applications to add or eliminate locations during the term of a
license shall be on forms prescribed by the department. A
twenty-five dollar ($25) application fee for the remainder of a
license term for each location to be added shall accompany the
application.

(b) A real estate broker may provide a prepaid rental listing
service at a licensed office for the conduct of his or her real estate
brokerage business if the business at the office is conducted under
the immediate supervision of the broker or of a real estate
salesperson licensed to, and acting on behalf of, the broker.

begin insert

(c) This section shall remain in effect only until January 1, 2015,
and as of that date is repealed, unless a later enacted statute, that
is enacted before January 1, 2015, deletes or extends that date.

end insert

SEC. 7.  

Section 10167.3 is added to the Business and
Professions Code, to read:

10167.3.  

(a) A real estate broker may provide a prepaid rental
listing service at a licensed office for the conduct of his or her real
estate brokerage business if the business at the office is conducted
under the immediate supervision of the broker or of a real estate
salesperson licensed to, and acting on behalf of, the broker.

(b) This section shall become operative on January 1, 2015.

SEC. 8.  

Section 10167.4 of the Business and Professions Code
is repealed.

begin delete

10167.4.  

The commissioner may require such proof as he or
she may deem advisable concerning the honesty and truthfulness
of (a) any applicant for a license as a prepaid rental listing service,
(b) the designated agents of the applicant, (c) the officers, directors,
and any persons owning 25 percent or more of the shares of any
corporation making such an application, or (d) any person owning
or controlling a beneficial ownership interest of 25 percent or more
in the entity making application before authorizing the issuance
of a license for a location. For this purpose, the commissioner may
hold a hearing in accordance with Chapter 5 (commencing with
Section 11500) of Part 1 of Division 3 of Title 2 of the Government
Code and may refuse to issue a license to an applicant who does
not furnish satisfactory proof of his or her honesty and truthfulness
or of the honesty and truthfulness of the corporate officers,
directors, and shareholders. To assist in this determination, the
commissioner shall require the fingerprinting of every original
applicant including designated agents, officers, directors, and
persons owning 25 percent or more of the shares of the corporate
applicant.

end delete

SEC. 9.  

Section 10167.5 of the Business and Professions Code
is amended to read:

10167.5.  

The business at a location licensed pursuant to
subdivision (a) of Section 10167.3 shall be conducted under the
immediate supervision of the licensee or a designated agent who
is not a designated agent at any other location. Whenever a
designated agent ceases permanently to be a designated agent at
any location because of death, termination of employment, or any
other reason, the licensee, within five days thereafter, shall give
written notice to the department. A license issued for a particular
location shall automatically expire 60 days after the time the
business conducted at such location ceases for any reason to be
under the charge of and managed by the designated agent of record
with the department, unless within such 60-day period the licensee
submits written notice of the new designated agent to the
department.

A designated agent of the licensed service may serve as
designated agent for the location in question as well as for the
location for which he or she is the designated agent of record during
the period of 60 days.

begin insert

This section shall remain in effect only until January 1, 2015,
and as of that date is repealed, unless a later enacted statute, that
is enacted before January 1, 2015, deletes or extends that date.

end insert

SEC. 10.  

Section 10167.6 of the Business and Professions
Code is repealed.

begin delete

10167.6.  

Every applicant for a prepaid rental listing service
license who is not a resident of this state shall file with the
application for a license an irrevocable consent that in any action
arising out of the activities of the prepaid rental listing service
commenced against him or her in this state, if personal service of
process upon him or her cannot be made in this state in the exercise
of due diligence, a valid service may be made upon him or her by
delivering the process to the Secretary of State.

Insofar as possible, the provisions of Section 1018 of the Code
of Civil Procedure relating to service of process on the Secretary
of State are applicable to this section.

end delete

SEC. 11.  

Section 10167.6 is added to the Business and
Professions Code, to read:

10167.6.  

Prior to the acceptance of a fee, and in addition to the
contract required pursuant to Section 10167.4 a licensee shall
provide the prospective tenant with the following written notice,
in a type size of at least 12-point type:

YOU MAY BE ENTITLED TO A REFUND IF YOU DO NOT
RECEIVE THE SERVICES YOU HAVE BEEN PROMISED.
COMPLETE TERMS AND CONDITIONS GOVERNING THE
REFUND TO WHICH YOU MAY BE ENTITLED ARE
CONTAINED IN YOUR CONTRACT. THE FOLLOWING IS
A SIMPLIFIED SUMMARY OF SOME OF THE RIGHTS
DESCRIBED IN YOUR CONTRACT:

If (name of licensee) does not provide you with at least three
available rental properties meeting the specifications of your
contract within five days after you pay the fee charged by (name
of licensee), you are entitled to a full refund. To obtain this refund,
you must request it from (name of licensee) in writing within 15
days of paying your fee.

If you do not obtain a rental through the services of (name of
licensee) during the term of your contract, you are entitled to a
refund of your fee, minus a service charge, which may not exceed
____ dollars ($____). To obtain this refund, you must provide
(name of licensee) with written documentation or a signed
statement that you obtained a rental without the assistance of (name
of licensee) or that you did not move. This documentation or signed
statement must be provided to (name of licensee) with a written
request for refund, within 10 days following the expiration of your
contract.

If (name of licensee) fails to refund your money, as required by
your contract, you may sue (name of licensee) in a small claims
court. The court may award you the refund you failed to receive,
plus additional damages, up to $1,000.

If you wish to file a complaint about (name of licensee) or if you
cannot collect on a court award, you should contact the Department
of Real Estate at 1-877-373-4542 or www.dre.ca.gov.

SEC. 12.  

Section 10167.7 of the Business and Professions
Code is repealed.

begin delete

10167.7.  

Except as provided in Section 10167.8, each licensee
shall provide to the department, and at all times maintain in force,
a bond in the amount of ten thousand dollars ($10,000) for each
location. The bond may be in the form of a corporate surety bond,
or a cash deposit. A cash deposit may be deposited by the licensee
in an interest-bearing account assigned to the commissioner, with
interest earned thereon payable to the licensee. The bond or cash
deposit may be utilized by the commissioner for the benefit of any
unsatisfied judgment creditor in an action pursuant to subdivision
(e) of Section 10167.10.

end delete

SEC. 13.  

Section 10167.8 of the Business and Professions
Code is repealed.

begin delete

10167.8.  

The requirement of Section 10167.7 shall not apply
to any prepaid rental listing service operated by: (a) a person
exempt from the payment of federal and state income taxes; (b)
an agency of the federal, state, or local government; or (c) a real
estate broker conducting a prepaid rental listing service pursuant
to a real estate license.

end delete

SEC. 14.  

Section 10167.9 of the Business and Professions
Code is amended and renumbered to read:

begin delete 10167.9. end delete
begin insert 10167.4. end insert   

(a) Prior to the acceptance of a fee, a licensee shall
offer the prospective tenant a written contract, either on paper or
in electronic form, which shall include at least the following:

(1) The name begin insert and license number end insert of the licensee and the
addresses and telephone numbers of the principal office or location
of the licensee and of the location, or branch office of a real estate
broker, providing the listing to the prospective tenant.

(2) Acknowledgment of receipt of the fee, including the amount.

(3) A description of the service to be performed by the licensee,
including significant conditions, restrictions, and limitations where
applicable.

(4) The prospective tenant’s specifications for the rental
property, including, but not limited to:

(A) Type of structure, including, but not limited to, detached
single-family home, apartment, or duplex.

(B) Location by commonly accepted residential area name, by
designation of boundary streets, or by any other manner affording
a reasonable means of identifying locations acceptable to the
prospective tenant.

(C) Furnished or unfurnished.

(D) Number of bedrooms required.

(E) Maximum acceptable monthly rental.

(5) The contract expiration date, which shall not be later than
90 days from the date of execution of the contract.

(6) A clause setting forth the right to a full or partial refund of
the fee paid as provided in Section 10167.10.

(7) The signature and printed full name of the licensee or of the
designated agent, real estate salesperson, or employee acting on
behalf of the licensee. The signature of any person, including any
signature required by the terms of the contract to be provided by
the prospective tenant, may be provided in any electronic form
that provides a reasonable method of indicating that the individual
whose signature is required authorized the contract to be signed
in that electronic form.

(8) A clause in bold type letters outlining the small claims court
remedy available to the prospective tenant.

(9) A clause in boldface type letters clearly stating that the
purchase of any goods and services other than the provision of
listings of residential real properties for tenancy is optional.

(b) (1) The original of each contract, any separate contracts for
required goods or services, refund claims, receipts and any other
relevant documents shall be retained by the licensee for a period
of not less than three years from the date of termination of the
contract during which time the contract shall be subject to
examination by a duly authorized representative of the
commissioner. Any records retained pursuant to this subdivision
that are stored in the ordinary course of business in digital media
shall, upon request of a duly authorized representative of the
commissioner, be provided on diskette, CD-ROM or similar
portable digital storage medium. For purposes of this subdivision,
the “original” of a contract executed in electronic form shall be
either the copy of the contract stored in digital media or a paper
printout of that contract.

(2) Any licensee, or employee thereof, shall dispose of the
documents required to be kept pursuant to paragraph (1) by
shredding or other appropriate means so that the identity of the
prospective tenant may not be determined from the disposed
information alone or in combination with other publicly available
information.

(c) The form of contract proposed to be used by a licensee to
effect compliance with this section shall be filed with the
department prior to use. Any modification of a form previously
filed with the department, including a change in the name or
business address of the licensee, shall also be filed prior to use.
The department shall withhold the issuance or renewal of a license
until the department has approved the contract. If a proposed
modification to a contract has not been approved or disapproved
within 15 working days of being filed with the department, the
proposed modification shall be deemed approved. If a proposed
modification or contract provision is disapproved, the department
shall communicate that disapproval in writing to the licensee within
15 working days of being filed with the department, accompanied
by a written justification of why the modification or contract
provision is contrary to the requirements of this article.

(d) Notwithstanding any other provision of law, a contract for
prepaid rental listing services executed in electronic form, and
signed in any electronic form that provides a reasonable method
of indicating that the individual whose signature is required
authorized the contract to be signed in electronic form, shall be
valid to the same extent as an executed written contract. Upon
request by the customer, the licensee shall deliver an executed
paper copy to the customer within five working days of receiving
the request.

SEC. 15.  

Section 10167.13 of the Business and Professions
Code is amended to read:

10167.13.  

begin insert (a) end insert begin insert   end insert A prepaid rental listing service license issued
by the department shall be for a period of two years. An application
and fee for renewal filed with the department before midnight of
the last day of the period for which a previous license was issued
entitles the licensee to continue operating at all locations specified
in the previous license for which a renewal fee is paid.

begin insert

(b) On and after January 1, 2014, the department shall not issue
a prepaid rental listing service license.

end insert begin insert

(c) This section shall remain in effect only until January 1, 2015,
and as of that date is repealed, unless a later enacted statute, that
is enacted before January 1, 2015, deletes or extends that date.

end insert

SEC. 16.  

Section 10167.16 of the Business and Professions
Code is amended to read:

10167.16.  

begin insert (a) end insert begin insert   end insert A person or corporation licensed pursuant to
this article and not engaging in acts for which a real estate license
is required under Article 1 (commencing with Section 10130) of
Chapter 3 of Part 1 of Division 4, shall be subject, in addition to
the provisions of this article, to the provisions of Chapter 1
(commencing with Section 10000) and Chapter 2 (commencing
with Section 10050) of Part 1 of Division 4, and to Sections 10450,
10452, 10453, and 10454.

begin insert

(b) This section shall remain in effect only until January 1, 2015,
and as of that date is repealed, unless a later enacted statute, that
is enacted before January 1, 2015, deletes or extends that date.

end insert

SEC. 17.  

Section 10167.17 of the Business and Professions
Code is repealed.

begin delete

10167.17.  

The commissioner shall, by regulation, make prepaid
rental listing service licensees and applicants for prepaid rental
listing service licenses subject to the same provisions respecting
licensure as are applicable to real estate licenses under Sections
10151.5, 10156.5, 10156.6, 10156.7, 10200, and 10201.

end delete