HIGH COURT DENIES REVIEW OF DECISION ELIMINATING BOND REQUIREMENT

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HIGH COURT DENIES REVIEW OF DECISION ELIMINATING BOND REQUIREMENT
Posted by Skimmer on April 01, 2008 at 4:50 PM
Realegal®
Leading the Way...® in Real Estate Law
Friday, March 28, 2008
Brought to you by the California Association of REALTORS®
HIGH COURT DENIES REVIEW OF DECISION ELIMINATING BOND REQUIREMENT
The California Supreme Court has denied review of a Court of Appeal decision that the bond requirement under the home equity sales contracts law is unconstitutional and unenforceable. Schweitzer v. Westminster Investments (2007) 157 Cal.App.4th 1195, review denied March 26, 2008. Under Schweitzer, buyers' agents may represent investors without obtaining the surety bond required under the home equity sales contracts law. Buyers and their agents must nevertheless comply with the other requirements of the home equity sales contracts law. Most notably, buyers and their agents should use C.A.R.'s standard form Notice of Default Purchase Agreement (NODPA) as amended, which will be available with the April forms release.
As background, this case arose when a seller sued to reclaim a property by arguing that the buyer's agent was not bonded under the home equity sales contracts law. The home equity sales contracts law imposes certain requirements when an investor buys an owner-occupied residential property up to four units with a recorded notice of default. One of the statutory requirements is for a buyer's agent to be bonded by an admitted insurer in the amount equal to twice the fair market value of the subject property. Yet, C.A.R. is unaware of any insurer currently offering the requisite bond.
The Court of Appeal in Schweitzer held that the bond requirement was unconstitutionally vague under the due process clause and may not be enforced. The seller requested for the California Supreme Court to review that decision, but the high court refused. As with other published appellate court opinions, the Schweitzer decision is binding and controlling authority for all California trial courts and Division One of the Fourth Appellate District (San Diego and Imperial Counties). It is also persuasive authority for the other Courts of Appeal.
In light of the Schweitzer decision, C.A.R. will amend its standard form Notice of Default Purchase Agreement (NODPA) accordingly. The revised NODPA is scheduled to be released in the April forms release the week of April 27, 2008.
C.A.R. provides REALTORS® with many legal articles covering a wide range of topics of interest. Some of the new or newly revised legal articles available through C.A.R. Online are as follows:
Submitting Listings to the MLS
Capital Gains Tax on Real Estate Sales
Mobilehomes
Realegal® is published by the CALIFORNIA ASSOCIATION OF REALTORS®, a trade association representing nearly 200,000 REALTORS® statewide.
Executive offices:
525 South Virgil Ave., Los Angeles CA 90020
phone: 213.739.8200; fax: 213.480.7724

Legislative offices:
980 Ninth Street #1430, Sacramento CA 95814
phone: 916.444.2045; fax: 916.444.2033

To view C.A.R.'s Privacy Policy, Click Here
To contact C.A.R. regarding Realegal®, Click Here
Copyright © 2008 California Association of REALTORS® (C.A.R.)

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Comments: : Realegal® : Leading the Way...® in Real Estate Law : Friday, March 28, 2008 : Brought to you by the California Association of REALTORS® : HIGH COURT DENIES REVIEW OF DECISION ELIMINATING BOND REQUIREMENT : The California Supreme Court has denied review of a Court of Appeal decision that the bond requirement under the home equity sales contracts law is unconstitutional and unenforceable. Schweitzer v. Westminster Investments (2007) 157 Cal.App.4th 1195, review denied March 26, 2008. Under Schweitzer, buyers' agents may represent investors without obtaining the surety bond required under the home equity sales contracts law. Buyers and their agents must nevertheless comply with the other requirements of the home equity sales contracts law. Most notably, buyers and their agents should use C.A.R.'s standard form Notice of Default Purchase Agreement (NODPA) as amended, which will be available with the April forms release. : As background, this case arose when a seller sued to reclaim a property by arguing that the buyer's agent was not bonded under the home equity sales contracts law. The home equity sales contracts law imposes certain requirements when an investor buys an owner-occupied residential property up to four units with a recorded notice of default. One of the statutory requirements is for a buyer's agent to be bonded by an admitted insurer in the amount equal to twice the fair market value of the subject property. Yet, C.A.R. is unaware of any insurer currently offering the requisite bond. : The Court of Appeal in Schweitzer held that the bond requirement was unconstitutionally vague under the due process clause and may not be enforced. The seller requested for the California Supreme Court to review that decision, but the high court refused. As with other published appellate court opinions, the Schweitzer decision is binding and controlling authority for all California trial courts and Division One of the Fourth Appellate District (San Diego and Imperial Counties). It is also persuasive authority for the other Courts of Appeal. : In light of the Schweitzer decision, C.A.R. will amend its standard form Notice of Default Purchase Agreement (NODPA) accordingly. The revised NODPA is scheduled to be released in the April forms release the week of April 27, 2008. : C.A.R. provides REALTORS® with many legal articles covering a wide range of topics of interest. Some of the new or newly revised legal articles available through C.A.R. Online are as follows: : Submitting Listings to the MLS : Capital Gains Tax on Real Estate Sales : Mobilehomes : Realegal® is published by the CALIFORNIA ASSOCIATION OF REALTORS®, a trade association representing nearly 200,000 REALTORS® statewide. : Executive offices: : 525 South Virgil Ave., Los Angeles CA 90020 : phone: 213.739.8200; fax: 213.480.7724 : : Legislative offices: : 980 Ninth Street #1430, Sacramento CA 95814 : phone: 916.444.2045; fax: 916.444.2033 : : To view C.A.R.'s Privacy Policy, Click Here : To contact C.A.R. regarding Realegal®, Click Here : Copyright © 2008 California Association of REALTORS® (C.A.R.)

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