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CPR 2016, Book 27 CalBRE Approved Credit Hours Updated: March 11, 2016, Links Fixed: May 9, 2016 Copyright© 2016 45HoursOnline holds the copyright to this book, Consumer Protection Reader, 2016. As its copyright holder, we authorize its use for our customers only. By “customer,” we refer to anyone having paid for a course or package of courses that includes this book. Customers may download, copy, and print this book but only for their individual use. Customers may not distribute this book in any form without our written permission. Publisher 45HoursOnline 4228 Lobos Road Woodland Hills, CA 91364 (818) 716-1028 Voice (213) 477-2095 Fax [email protected] www.45HoursOnline.com CalBRE Disclaimer This course is approved for continuing education credit by CalBRE. Their approval does not constitute an endorsement of the views or opinions expressed by 45HoursOnline, its instructors, its authors, or its lecturers CalBRE Course and Instructor Evaluation A course and instructor evaluation is available on CalBRE’s website at www.bre.ca.gov. Access this form by entering “RE 318A” in the search box located in the upper right corner of the home page. PREFACE: This textbook is used for two of our CE courses: (1) Consumer Protection Reader, Part 1 (approved for 12 hours); and (2) Consumer Protection, Part 2 (approved for 15 hours). This textbook has two sections. The first is “Defensive Real Estate.” It comprises the first 70 pages. It is an extension of our three-hour course, Risk Management. It was written to help agents avoid disputes with their clients. Chuck Milbourne of 45HoursOnline is its author. The second section is “Consumer Protection Articles” (“Reader”) and it comprises the remainder of this book. It consists of short articles primarily from three sources: (1) CalBRE’s Real Estate Bulletin, (2) RealtyTimes.com, and (3) Dr. Jack Guttentag’s site, The Mortgage Professor. Articles from CalBRE’s Real Estate Bulletin are in the public domain; while The “Editor” articles from Realty Times and The Mortgage Professor are owned by Realty Times and Dr. Jack Guttentag respectively and used with their permission. All articles, regardless of source, were written in the four years prior to March 1st, 2016. The articles have been selected and annotated by me, Chuck Milbourne (aka, the “Editor”). The articles I have selected are intended to bring you up-to-date with changes in residential real estate (RRE) brokerage since January 1, 2012. These articles concern changes and developments in California real estate law, construction methods, real estate taxes, appraisal, and other matters of interest to RRE agents and property managers. Typographic Conventions This is a margin note. All margin notes , pictures, and opinion statements are those of the Editor. Supplemental Text added by the Editor to articles written by others is delimited from the original in one of two ways: (1) When consisting of complete paragraphs it is enclosed in a dashed, light-green box (as you see here); otherwise, it is demarcated from the original text using curly braces {as you see here}. Supplemental text is part of the course. Paragraphs set against a light-gray background (as you see here) are sidebars. Sidebars are explanatory notes and parenthetical content. The information contained within sidebars is not considered part of the course. Opinions of and personal asides by the Editor, Chuck Milbourne, are set against a yellow background (as you see here). Feel free to skip these. For the sake of consistency, the Editor has changed all references to sections of the California Civil Code to “CC §”; to the California Business and Professional Code to “BPC §”; and to the Bureau of Real Estate Commissioner’s Regulations to “CR §”. The symbol ‘§’ may be read as “section” and the symbol ‘§§’ as “sections.” “Et al,” as in “CC §2780 et al,” may be read as “all the sub-sections that follow.” Adobe Reader (“AR”) This document is formatted as a PDF file. Any PDF may be read online or offline using the Adobe Reader (AR). AR is freely available from Adobe Systems. There are many other programs that display and print PDF files but AR is the most common. AR is a simple yet powerful eBook reader. If you are unfamiliar with its features, I recommend you take a few minutes to become acquainted with them so as to make your reading of this book more productive. Most of AR's functions are accessed through its Horizontal and Vertical menus. By default, AR does not display these menus. To display them, position the cursor over the bottom center of the display window. When properly positioned, AR’s floating menu will appear. When it does, click the Adobe icon ( ) on the popup menu . You should know how to use AR’s /Bookmarks\ tab . This tab is used to navigate through the book’s table of contents. You should also know how to use its zooming tools ( ) to change the size of text and Bookmarks Tab pages. You will also find it convenient to use your browser’s <F11> key to toggle in and out of “full screen” mode. Finally, you will find its Search tool a Search Tool convenient way to find content particularly when taking this course’s exams (all exams are “open book”). This eBook contains hundreds of links to pages on the Internet and to cross references within this book. Both links are visually depicted in underlined purple text which, when moused over, changes the mouse icon from a pointer to a hand icon. Links to Internet sites are accompanied with a yellow tool-tip box while links to cross-referenced sections show only the hand . After clicking a link to an Internet site, use <Alt><Tab> to return to the eBook ... but ... After clicking a link to a cross-referenced section, use <Alt><Left Arrow> to return to the original link Abbreviations To avoid repeating long proper names, we use the following abbreviations. AB California Assembly Bill APR Annual Percentage Rate BPC California’s Business and Professions Code CalBRE California Bureau of Real Estate, aka, BRE. CAR® California Association of REALTORS® CC California’s Civil Code CPFB Consumer Financial Protection Bureau CID Common Interest Development CR Regulations of the Commissioner of the Bureau of Real Estate DIY Do It Yourself BRE California Bureau of Real Estate, aka CalBRE Fannie Fannie Mae, aka. FHLMC FDIC Federal Deposit of Insurance Corporation FHFA Federal Housing Finance Agency Freddie Freddie Mac, aka FNMA FTB California Franchise Tax Board GSE Government Sponsored Entities (primarily, Fannie and Freddie) HELOC Home Equity Line of Credit HOA Home Owner Associations HUD U.S. Department of Housing and Urban Development IRS Internal Revenue Service K One thousand (e.g., $100K is $100,000) LTV Loan to Value NAR® National Association of REALTORS® PMI Private Mortgage Insurance REO Real Estate Owned RESPA Real Estate Settlement Procedures Act SB California Senate Bill SFR Single Family Residence TDS Transfer Disclosure Statement Consumer Protection Reader, 2016 Edition TABLE OF CONTENTS 1 Defensive Real Estate 1 1.1 Introduction 1 1.1.1 Scope 1 1.1.2 Client Satisfaction 1 1.1.3 Audience 2 1.1.4 What is Risk? 2 1.1.5 Core Problem 3 1.2 Dispute Resolution 3 1.2.1 Litigation Concepts 3 1.2.1.1 Liability 3 1.2.1.1.1 Vicarious Liability 3 1.2.1.1.2 Joint and Several Liability 4 1.2.1.1.3 Comparative Negligence 5 1.2.1.2 Causes of Action 5 1.2.1.2.1 Breach of Fiduciary Duty 5 1.2.1.2.2 Misrepresentation 6 1.2.1.2.2.1 Fraudulent Misrepresentation 6 1.2.1.2.2.2 Negligent Misrepresentation 7 1.2.1.2.2.3 Innocent Misrepresentation 7 1.2.1.2.3 Negligence 8 1.2.1.2.3.1 Negligent Nondisclosure 8 1.2.1.2.3.2 Negligent Advice/Referrals 8 1.2.2 Methods 9 1.2.2.1 Provisions in CAR® Contracts 9 1.2.2.2 Informal 9 1.2.2.2.1 Informal Negotiation 9 1.2.2.2.2 Mediation 10 1.2.2.2.3 Small Claims Court 10 1.2.2.3 Formal 12 1.2.2.3.1 Arbitration 12 1.2.2.3.2 Litigation 13 1.2.2.4 CalBRE’s License Discipline 16 1.2.2.4.1 Reports of Unlawful Conduct 16 1.2.2.4.2 Newly Acquired Enforcement Powers 17 1.2.2.4.3 Burden-of-Proof in Civil and Administrative Law 17 1.2.2.4.4 Disciplinary Process 19 1.3 Defensive Real Estate 20 1.3.1 Risk Avoidance 20 1.3.1.1 Avoid Dual Agency 20 1.3.1.2 Avoid Vexatious Clients 22 1.3.2 Risk Reduction 22 1.3.2.1 Contract Familiarity 22 1.3.2.2 Transaction File 23 1.3.2.3 Document Review 25 1.3.2.4 Communication 25 1.3.2.5 Risk Management Policies 25 1.3.2.6 Contrition 26 1.3.3 Risk Transfer 26 2016 45HoursOnline, All Rights Reserved Page i Consumer Protection Reader, 2016 Edition 1.3.3.1 Deferral to Experts 26 1.3.3.2 Importance of Deep Pockets 27 1.3.3.3 Advisories 27 1.3.3.4 Insurance 27 1.3.3.4.1 Protecting Yourself 27 1.3.3.4.1.1 E&O 27 1.3.3.4.1.2 General Liability Insurance 29 1.3.3.4.1.3 Automobile Insurance 29 1.3.3.4.2 Protecting your Clients 29 1.3.3.4.2.1 Homeowners Insurance 29 1.3.3.4.2.2 Title Insurance 30 1.3.4 Risk Retention 30 1.3.4.1 High Deductibles 31 1.3.4.2 Incorporation 31 1.4 Home Inspection 31 1.4.1 Actionable Defects 32 1.4.1.1 Ten Most Common Defects 32 1.4.1.2 Red Flags 33 1.4.1.2.1 Visual 34 1.4.1.2.2 Written 34 1.4.1.2.3 Neighborhood 35 1.4.1.2.4 Remodels and Repairs 35 1.4.1.3 Water 35 1.4.1.4 Fungi 36 1.4.1.4.1 Dry Rot 37 1.4.1.4.2 Mold 38 1.4.1.5 Termites 40 1.4.2 Seller and His Agent’s Home Inspection 41 1.4.2.1 Agent’s Visual Inspection 41 1.4.2.2 Seller’s Disclosures 42 1.4.2.3 Natural Hazard Disclosure 42 1.4.3 Professional Pest Inspection 43 1.4.4 Professional Home Inspection 45 1.4.4.1 Need 45 1.4.4.2 Associations 46 1.4.4.2.1 California Real Estate Inspection Association 46 1.4.4.2.2 American Society
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