BILL ANALYSIS Ó AB 624 Page 1 Date of Hearing: April 21, 2015 ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS Susan Bonilla, Chair AB 624 (Wilk) - As Amended March 26, 2015 SUBJECT: Real estate appraisers: standards of conduct. SUMMARY: Authorizes licensed real estate appraisers who perform non-federally related appraisal activities to use a standard of valuation practice other than the Uniform Standards of Professional Appraisal Practice if that practice is disclosed to, and agreed upon, by the client, and if that practice is described in the appraisal. EXISTING LAW: 1)Establishes the Real Estate Appraisers' Licensing and Certification Law (Act), administered by the Bureau of Real Estate Appraisers (BREA), which regulates the licensing of real estate appraisers and provides definitions of specified terms that govern the construction of that law. (Business and Professions Code (BPC) Section 11300 et seq.) 2)Defines an "appraisal" as a written statement independently and impartially prepared by a qualified appraiser setting forth an opinion in a federally related transaction as to the market value of an adequately described property as of a AB 624 Page 2 specific date, supported by the presentation and analysis of relevant market information. (BPC Section 11302) 3)Provides that the term "appraisal" does not include an opinion given by a real estate licensee or engineer or land surveyor in the ordinary course of his or her business in connection with a function for which a license is required, as specified, and that the opinion shall not be referred to as an appraisal, as specified. (BPC Section 11302) 4)Defines a "federal financial institutions regulatory agency" as the Federal Reserve Board, Federal Deposit Insurance Corporation, Office of the Comptroller of the Currency, Federal Home Loan Bank System, National Credit Union Administration and any other agency determined by the director of the BREA to have jurisdiction over transactions subject to this part. (BPC Section 11302(h) 5)Defines a "federally related real estate appraisal activity" as the act or process of making or performing an appraisal on real estate or real property in a federally related transaction and preparing an appraisal as a result of that activity. (BPC Section 11302(i)) 6)Defines a "federally related transaction" (FRT) as any real estate-related financial transaction which a federal financial institutions regulatory agency engages in, contracts for or regulates and which requires the services of a state licensed real estate appraiser regulated by these provisions, and includes any transaction identified as such by a federal financial institutions regulatory agency. (BPC Section 11302(j)) AB 624 Page 3 7)Defines a "state licensed real estate appraiser" as a person who is issued and holds a current valid license under these provisions. (BPC Section 11302(o)) 8)Defines "Uniform Standards of Professional Appraisal Practice" (USPAP) as the standards of professional appraisal practice established by the Appraisal Foundation. (BPC Section 11302(p)) 9)Requires the USPAP to constitute the minimum standard of conduct and performance for a licensee in any work or service performed that is addressed by those standards. (BPC Section 11319) 10)Prohibits a person from engaging in federally related real estate appraisal activity governed by these provisions or assuming or using the title of or any title designation or abbreviation as a licensed appraiser in this state without first obtaining a license. (BPC Section 11320) THIS BILL: 1)Makes the following changes relating to definitions: a) Expands the definition of "appraisal" by no longer limiting appraisals under the Act to those relating to federally related transactions; b) Adds the Consumer Financial Protection Bureau to the AB 624 Page 4 definition of a "federal financial institutions regulatory agency"; c) Defines the "USPAP" as the standards of professional appraisal practice established by the Appraisal Foundation for use in an FRT; d) Defines "non-federally related real estate appraisal activity" as the act or process of making or performing an appraisal on real estate or real property for any purpose other than an FRT; and, e) Defines "standard of valuation practice" as any nationally or internationally recognized valuation standard addressing the credibility of an appraisal or appraisal review;. 2)Limits the use of the USPAP as the minimum standard of conduct and performance for federally related real estate appraisal activity. 3)Authorizes a licensee performing a non-federally related appraisal activity to use a standard of valuation practice if that practice is disclosed to, and agreed upon, by the client, and described in the appraisal. 4)Requires a licensee who uses a standard of valuation practice other than the USPAP to comply with the Ethics, Record Keeping, Competency, and Scope of Work rules of the USPAP contained in the 2014-2015 edition of the USPAP. FISCAL EFFECT: Unknown. This bill is keyed fiscal by the AB 624 Page 5 Legislative Counsel. COMMENTS: 1)Purpose. This bill is sponsored by the California Governmental Relations Subcommittee of the Appraisal Institute . According to the author, "[This bill] is designed to modernize California's appraiser licensing law to permit licensed or certified appraisers to apply the most relevant appraisal standards for their assignments. While federal law requires compliance with the [USPAP] for [FRTs], California operates in an international business environment and foreign entities often need appraisal reports prepared in accordance with international standards. Also, entities within the [United States] often do not require USPAP-compliant appraisals for their non-federally related transactions. [This bill] simply permits the use of recognized alternative or international valuation standards for non-[FRTs], if disclosed and consented to by the client and if identified in appraisal reports. In cases where standards other than USPAP are employed, appraisal reports must still comply with foundational USPAP standards relating to ethics, competency, recordkeeping, and scope of work." 2)Background. According to the BREA, in 1989, the Federal Financial Institutions Reform, Recovery and Enforcement Act (FIRREA) was adopted by Congress mandating states to license and certify real estate appraisers who appraise property for FRTs. FRTs are defined as any real estate-related financial transaction which a federal financial institutions regulatory agency engages in, contracts for, or regulates, and which requires the services of a state licensed real estate appraiser regulated by these provisions, and includes any transaction identified as such by a federal financial institutions regulatory agency. In short, FRTs are transactions involving loans made, guaranteed or insured by AB 624 Page 6 federally-supervised financial institutions. The federal law was enacted as a result of the savings and loan disaster. The FIRREA, and rules promulgated pursuant to that act, require, at a minimum, that real estate appraisals be performed in accordance with generally accepted uniform standards as promulgated by the Appraisal Standards Board (ASB) of the Appraisal Foundation, and that such appraisals be in writing. The USPAP is the set of standards developed by the ASB of the Appraisal Foundation to meet this requirement. Such appraisals are to be performed by individuals whose competency has been demonstrated and whose professional conduct is subject to effective state supervision. In response to the federal mandate, the Real Estate Appraisers Licensing and Certification Law was enacted by the California Legislature in 1990. The BREA, which administers the Act, is charged with developing and implementing a real estate appraiser licensing and certification program compliant with the federal mandate. The BREA's enforcement unit, which operates under a federal mandate, ensures adherence to the federally-required USPAP, California law and regulations. According to policy statements issued by the Appraisal Subcommittee of the Federal Financial Institutions Examination Council, an interagency body empowered to prescribe uniform principles, standards and report forms for the federal examination of financial institutions, Title XI of the FIRREA and the federal financial institutions regulatory agencies' regulations authorize any state or federal agency to impose additional appraisal standards if they consider such standards necessary to carry out their responsibilities, so long as AB 624 Page 7 additional appraisal standards do not preclude compliance with the USPAP or the federal institutions regulatory agencies' appraisal regulations for work performed for FRTs. The federal financial institutions regulatory agencies' appraisal regulations define "appraisal" and identify which real estate-related financial transactions require the services of a state licensed appraiser. Under these regulations, only those transactions that involve appraisals for FRTs require the services of a state licensed appraiser. California Real Estate Appraisers' Licensing and Certification Law. According to the author, because virtually every residential loan is an FRT, approximately 90-95% of all appraisals are covered. While federal law requires that FRT appraisals be performed in compliance with the USPAP, California law goes beyond this requirement in BPC Section 11319, and requires compliance with USPAP for all appraisals performed by California licensed and certified appraisers, whether federally-related or not. According to the author, problems arise when appraisers are sometimes asked by foreign entities to perform appraisals in compliance with appraisal standards in the foreign country, or in compliance with International Valuation Standards (IVS). For example, other major international and alternative appraisal and valuation standards may include: the Canadian AB 624 Page 8 Uniform Standards of Professional Appraisal Practice; Standards of Valuation Practice; European Valuation Standards; Uniform Appraisal Standards for Federal Land Acquisitions; Real Property Appraisal Standards (Japan); Australia and New Zealand Property and Valuation Standards and the Standards for Real Estate Appraisals of the People's Republic of China. California licensed and certified appraisers are not able to accept an appraisal assignment if the standard identified is other than USPAP. Even though state law does not require licensure to perform the appraisal for non-federally related transactions, licensed appraisers must still use the USPAP because California mandates the use of USPAP standards for all appraisals. According to the author, the USPAP reporting requirements impose duties beyond those often needed by entities requesting appraisals in non-FRTs. Investors needing portfolio review analysis, for example, often do not need, and thus are not willing to pay for, a full USPAP-compliant appraisal. Because California law makes USPAP the standard for all appraisals performed by California licensed or certified appraisers, California licensees are unable to accept these assignments. In this regard, California law actually acts as a disincentive to hire the most competent appraisers. As a result, licensed professionals in other states or unlicensed persons in California could perform those non-FRT appraisals without following USPAP, while California licensees would still be required to follow the USPAP. The BREA's website lists as one of the twelve most frequently asked questions relating to enforcement is whether a licensee AB 624 Page 9 may voluntarily "suspend" his or her license to perform non-USPAP appraisals. According to the website, one of the most common reasons for a licensee to wish to suspend or terminate their license is the desire to produce non-USPAP appraisals for real estate brokers or for tax appeal purposes, i.e., for non-FRT appraisals. However, there is currently no provision for permitting such a suspension of licensure prior to the license expiration, and the BREA regulations require every holder of a BREA license to conform to and observe USPAP at all times, regardless of the type of transaction. This bill would address this problem by authorizing licensees to comply with recognized valuation standards other than the USPAP for non-FRTs, with the consent of the client and if the standards are properly identified in the appraisal report. This bill would still require USPAP provisions relating to ethics, competency, recordkeeping and scope of work to apply if a standard other than the USPAP is used for an appraisal. 3)Prior Related Legislation. AB 1317 (Frazier), Chapter 352, Statutes of 2013, enacted the statutory changes necessary to reflect the changes in law made by the Governor's Reorganization Plan No. 2, including moving the former Office of Real Estate Appraisers from under the jurisdiction of the former Business, Transportation, and Housing Agency to the Bureau of Real Estate Appraisers under the Department of Consumer Affairs, within the Business, Consumer Services, and Housing Agency. SB 237 (Calderon), Chapter 173, Statutes of 2009, required AB 624 Page 10 appraisal management companies, as defined, to register with the Office of Real Estate Appraisers, and would subject those entities to the provisions of the Real Estate Appraisers' Licensing and Certification Law, and set forth standards with which an appraisal management company would need to comply. ARGUMENTS IN SUPPORT: According to the sponsors, the California Government Relations Subcommittee of the Appraisal Institute , "[This bill] is designed to modernize California's appraisal licensing law to permit licensed and certified appraisers to utilize international and other alternative appraisal standards when those standards are more relevant to particular transactions. This will permit lower-cost, more appropriate appraisals which respond to market and consumer demand. By way of brief background, Congress imposed a requirement for all states to license and certify real estate appraisals in 1990, coming out of the savings and loan crisis of the time. Federal law requires licensure, and compliance with the Uniform Standards of Appraisal Practice (USPAP) for "federally-related transactions". These are basically transactions involving loans made, guaranteed or insured by federally-supervised financial institutions. No federal law requires licensing or compliance with "USPAP" for non-federally related transactions, however. Since the enactment of licensing in 1990, other appraisal standards have developed which may be more appropriate in certain transactions, and USPAP may impose a level of work unnecessary in some cases. Further, international lenders may need appraisal work done in compliance with international appraisal standards or those of their home countries, rather than USPAP-compliant appraisals. All [this bill] does is permit the use of nationally or internationally-recognized appraisal standards for non-federally related transactions, if properly disclosed and consented to by the client, and if identified in the appraisal report. [This bill] is narrowly crafted to respond to a simple need." AB 624 Page 11 ARGUMENTS IN OPPOSITION: None on file. POLICY ISSUE FOR CONSIDERATION: The author may wish to consider whether it is necessary to specify the 2014-15 edition of the USPAP a licensee must follow for purposes of adhering to specific USPAP standards for non-FRTs. Because specifying that edition would not take into account future changes relating to those standards in future iterations of the USPAP, licensees would be prohibited from following a single set of USPAP standards, and would instead be required to follow one set of standards for non-FRT appraisals, and another set standards, e.g. if there is a newer edition of the USPAP, for FRT appraisals. This may lead to confusion for licensees, who could be accountable for applying the wrong set of standards. AMENDMENT: This bill deletes the phrase "in a federally related transaction" from the definition of appraisal, thereby expanding the definition of appraisal to include non-FRT appraisals. Because other provisions of the Act refer to appraisals, for example, BPC Section 11321 which requires licensees to sign appraisals, it may inadvertently alter existing practice requirements. As a result, the author should consider restoring that language to existing law. AB 624 Page 12 On page 2, line 9, after "opinion" insert: in a federally related transaction to restore to existing law REGISTERED SUPPORT: California Government Relations Subcommittee of the Appraisal Institute (sponsor) REGISTERED OPPOSITION: None on file. Analysis Prepared by:Eunie Linden / B. & P. / (916) 319-3301 AB 624 Page 13