Wersquo;ve had enough queries and responses regarding the difference between state and federal law on this matter that it appeared worthwhile to examine the issues a bit more.
Of all people, Californians who live in a self-proclaimed sanctuary state, should be aware of the fact that state and federal laws may conflict with one another. Think marijuana legislation. Sometimes these conflicts may require resolution through a court decision; other times they just go on. In the present case the differences in the laws have not led to the kind or size of conflict that would have merited extensive and expensive litigation.
Moreover, itrsquo;s important to remember that, for a significant number of transactions, the issue doesnrsquo;t even arise. The RESPA rules and prohibitions cover what is probably a majority of real estate transactions. Those are residential real estate of less than five units in which federal or federally->
It is also worth noting that California law regarding referral sometimes called ldquo;finderrdquo; fees came about from a court ruling. It is case law, as opposed to the result of specific legislation aimed at referral fees. The landmark case Shaffer v. Beinhorn went before the California Supreme Court in 1923. The plaintiffs in the case had sued a California real estate broker for not paying them a finder fee as he had promised to do. The brokerrsquo;s defense was that he could not pay them because they didnrsquo;t have a real estate license.
The California Business and Professions Code Currently Business and Professions Code sect;10131 spells out those activities that require having a real estate license. Simply referring, or ldquo;findingrdquo;, a buyer or seller is not among them. The court noted this, and thus noted that the plaintiffsrsquo; lack of a license was not sufficient reason not to pay them. The logic of that ruling prevails today.
Recently, I was pointed to a very thorough and detailed discussion of the referral rules for both RESPA and California law. It appears in the 2016 Winter Bulletin of the California BRE/DRE, and it is available on the departmentrsquo;s website. The article was written by Wayne Bell and Summer Goralik ndash; two very smart and very nice people. Mr. Bell is the former California Real Estate Commissioner and Ms. Goralik is a former Special Investigator for the BRE/DRE. I commend this article to anyone further interested in this topic.
While the article reference above is detailed, comprehensive, and very useful, it includes something that, for me, requires further analysis. The authors say:
hellip;Bamp;P Section 10137 provides that a real estate salesperson can only be compensated for real estate acts through his or her employing or responsible broker. That prohibits a real estate salesperson from receiving pay, a commission or a lawful referral fee directly from another person. If a lawful referral fee will be paid to any salesperson, including a broker acting as a salesperson, an any real estate transaction, then it must be paid first through the responsible broker.
What the authors say would be true only if simply giving a referral were a real estate act. But it isnrsquo;t. That was settled in 1923. Giving a referral is not an act that requires a real estate license. In California, payment to a real estate agent for simply giving a referral should not be required to go through a broker. QED
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